                       September 25, 1989



Mr. Hilary B. Doran, Jr.       Opinion No. JM-1102
Chairman
Texas Racing Commission        Re: Whether the Texas Racing
P. 0. Box 12080                Commission may adopt rules
Austin, Texas   78711          regarding the regulating  of
                               simulcasting  (RQ-1645)

Dear Mr. Doran:

     Article 179e, V.T.C.S., the Texas Racing Act, created
the Texas Racing Commission   [hereinafter the commission],
j&   at 9 2.01, and conferred     on it broad     rulemaking
authority governing horse racing and greyhound racing.l You
ask about the scope of that authority, specifically  whether
the commission   may promulgate   rules regulating   "simul-
casting" of race events.

     YOU inform us that "simulcasting" is the transmission,
by electronic means, of a race track event that is conducted
at one racetrack and displayed at-another location, in this
instance, another licensed racetrack. Under such a system,



     1. Section 3.02 of the act confers     broad    authority
regarding regulation   and supervision of   races    involving
wagering and provides:

           In accordance with section 3.01 of this
        Act, the commission shall regulate and super-
        vise every race meeting involving wagering on
        the result of greyhound or horse racing. All
        persons and thinas relatina to the oneration
        of those meetincs  are subject to reaulation
        and suvervision.  The commission shall adopt
        rules for conducting racing involving wager-
        ing and shall adopt other rules to administer
        this Act that are consistent with this Act.
        (Emphasis added.)

In addition, the act explicitly confers rulemaking authority
on the commission in over twenty specific instances.




                              P. 5774
Mr. Hilary B. Doran, Jr. - Page 2   (JR-1102)




pari-mutuel wagering is conducted at both locations, with
the state's portion of the pari-mutuel pool at each location
being taken and remitted to the state, as required by the
act. You do not ask about any specific rules: rather, YOU
ask about the commission's general authority.

     You ask:

        Does the Texas Racing Act prohibit the Texas
        Racing   Commission   from   adopting    rules
        regarding the regulation of simulcasting?2

We conclude that article 179e, V.T.C.S.,    the Texas Racing
Act, does not confer any authority      on the Texas Racing
Commission to promulgate rules regarding the regulation   of
simulcasting.  We so conclude,  because  we construe the act
to prohibit wagering on simulcast events.

     Administrative agencies have only those powers that
expressly are conferred by statute, Cobra Oil & Gas Corv. v.
Sadler, 447 S.W.2d 887    (Tex. l-968), together with those
necessarily implied from powers and duties expressly   given
or imposed. Stauffer v. Citv of San Antonio, 344 S.W.2d 158
(Tex. 1961). The threshold issue is whether the act permits
wagering at licensed racetracks on simulcast events.  If it
does, then the commission has general authority to promul-
gate rules regulating such events. If the act does       not
permit wagering on such- events, the commission has no such
authority.

     The act is detailed, expressly conferring comprehensive
regulatory authority on the commission.  If the legislature
had intended that wagering on simulcast be permitted,     one
reasonably would expect the act to confer such regulatory
authority expressly:  yet the act does not confer express



     2. You do not specify in your request whether you are
concerned about the commission's authority regarding   purely
intrastate simulcasts or interstate simulcasts or situations
in which an association is the host of a simulcast or an
exhibitor of a simulcast.  We note that section.3001 through
3007 of title 15 of the United States Code, the Interstate
Horseracing Act of 1978 (P.L. 95-515), prohibits    off-track
pari-mutuel wagers being placed or accepted    in one state
with respect to the outcome of a horse race taking place   in
another state unless consent    is obtained from   (the host
racing association), (the host racing commission,) and the
off-track racing commission.




                              P. 5775
Mr. Hilary B. Doran, Jr. - Page 3    (JM-1102)




authority  on the commission    to regulate    simulcasting.
Indeed, nowhere    in the act is "simulcasting@' or      any
synonymous term or phrase even mentioned.  You do not assert
that the Texas Racing Act expressly permits wagering       on
simulcast events, but you do advance two arguments         in
support of the proposition that the legislature    impliedly
intended to permit such wagering.   We find neither of your
arguments persuasive.

     First, you rely upon the language of sections 11.01 and
11.04 of the act. Section 11.01 confers explicit rulemaking
authority on the commission regarding pari-mutuel   wagering
and provides in pertinent part:

             The commission   shall   adopt rules      to
          regulate wagering   on greyhound    races   and
          horse races under     the system known
          pari-mutuel  wagering.3    waserina
          conducted onlv v an a ociation wit%         its
          enclosure.  (Emihasis azied.)

     Section 11.04 of the act governs wagering and provides:

              (a) Onlv a nerson inside the enclosure
          where a race meetina is authorized mav wacaer
          on the result of a race vresented     bv the
          association  bv contributino   monev to the
          pari-mutuel ~001 overated bv the association.
          The commission shall adopt rules to prohibit
          wagering by employees of the commission   and
          to regulate wagering by persons      licensed
          under this Act.




     3.    Subsection 1.03(18) of the act provides:

             'Pari-mutuel wagering' means the form of
          wagering on the outcome of greyhound or horse
          racing in which those who wager purchase
          tickets of various denominations on an animal
          or animals and all wagers for each race are
          pooled and held by the racing association for
          distribution of the total amount, less the
          deductions authorized by this Act, to holders
          of tickets on the winning animals.




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Mr. Hilary B. Doran, Jr. - Page 4   (JM-1102)




           (b) The commission  shall adopt   rules
       prohibiting  an association  from accepting
       wagers by telephone.

           (c) The commission   shall adopt    rules
       prohibiting an association  from accepting  a
       wager made on credit and shall adopt rules
       prohibiting automatic banking machines within
       the enclosure.  (Emphasis added.)

But see V.T.C.S. art. 179e, 5 3.02 (commission shall     adopt
rules for conducting racing involving wagering).

    Your argument focuses on the use of the word l'presented"
in section 11.04(a), contrasting that with the use of the
word "conductedtq in section 11.01.4 You assert:

        Some members of the commission believe   this
        section   [section 11.01 of the act] also
        authorizes   the commission  to adopt rules
        regulating wagering    on simulcast    races,
        including regulations   regarding the race-
        tracks from which a simulcast is broadcast,
        the racetracks at which a simulcast will be
        presented, and the type of equipment     that
        will transmit the simulcast electronic   sig-
        nals.

        Section 11.04(a) offers additional     support
        for this belief.   In that subsection,  wager-
        ing is restricted to races that are presented
        by an association.   Several places in the Act
        refer to an association that conducts   races.
        [Citations omitted.] Under the 'plain mean-
        ing' rule of statutory construction, we must
        assume that the use of two different     terms
        indicates a difference    in meaning   is in-
        tended.   [Citation omitted.] Use of the word
        'presented' indicates that the legislature
        intended a different meaning    from what the



     4. When the bill reached the floor of the Senate, the
sentence of section 11.01 that is underscored above read:
"Wagering may be conducted only by an association within its
enclosure durino a race meeting."    The underscored  phrase
was deleted by floor amendment and the phrase "presented  by
the association" was inserted after the word race in sub-
section 11.04(a).



                             p. 5777
Mr. Hilary B. Doran, Jr. - Page 5   (JM-1102)




       word 'conducted' would have conveyed.     This
       section [subsection 11.04(a)] indicates that
       the legislature contemplated that races could
       be presented  by an association     for pari-
       mutuel wagering without being conducted     by
       that particular    association.     Obviously,
       Section 11.04(a) permits only an association
       that is licensed to conduct race meetings   at
       some time to present, for wagering   purposes,
       races that are conducted elsewhere.

       Although the Act does not explicitly mention
       simulcasting,  the plain language of      the
       statute indicates    that   simulcasting   is
       authorized by the Act and that the Commission
       is authorized  to adopt rules to regulate
       simulcasting.  (Emphasis in original.)

     It is generally presumed that every word in a statute
is used for a purpose.  Cameron v. Terre11 & Garrett.  Inc.,
618 S.W.Zd 535 (Tex. 1981).   But, in construing a statute,
we must look to the intent of the legislature      and must
construe the statute as a whole so as to qive effect to that
intent. pnicht v. International Harvester Credit Corn., 627
S.W.2d 382 (Tex. 1982).

          The fundamental rule controlling the con-
       struction of a statute is to ascertain,      if
       possible, the intention of the Legislature as
       expressed in the language of that statute.
       [Citation omitted.]     ln ascertainins    this
       intent. courts must      examine the     entire
       statute or act and not merelv         isolated
       portion thereof. [Citation omitte?]   Further,
       if the intent of the Legislature is ascer-
       tained, courts must enforce that intent even
       though the intent is not altogether     consis-
       tent with the strict letter of the statute.
       [Citation omitted.]   (Emphasis added.)

State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979).

     The word "present"  is defined by Webster's New World
Dictionary of the American Language to mean, inter alia, "to
offer for viewing or notice: exhibit; display; show."    The
same dictionary defines "conduct"  to mean, inter alia,  "to
manage, control, or direct." While there is a dictionary
distinction between the meanings of the two words, there  is
no meaningful distinction between the two words when the act
is read as a whole. Your argument       is not persuasive,
because, throughout the act, the words "present,"    "hold,"



                             P. 5778
Mr.   Hilary B. Doran, Jr. - Page 6    (JM-1102)




"conduct,l* and %=un" are used interchangeably.    See, e.cr
55 9.03 ('IAnassociation  shall provide for the runn' q 0;
races . . ."); 9.05 ("When a horse racing associatiok    m
both quarter horse and Thoroughbred races . . ."); 9.06 ("If
a horse racing association conducts       quarter horse and
Thoroughbred racing . . ."'); 10.02  ("If . . . it is impos-
sible for the licensee to w       ordconducz a race . . .");
11.01 ("Wagering may be cond cte . . . 1: 11.04        ("Only
a person inside the enclosureU where a race meeting        is
authorized may wager on the result of a race presented     by
the association. . . .'I). (Emphasis added.)

     Section 3.02 of the act requires the commission     to
"regulate and    supervise every   race meetinq   involving
wagering on the result of greyhound     or horse racing."
(Emphasis added.)5 Subsection l-03(6) of the act provides:

                'Horse race meeting' means the conductinq
            of horse races on a day or during a period of
            ,consecutive or nonconsecutive days. (Emphasis
            added.)

Subsection     1.03(50) of the act provides in pertinent part:

               'Greyhound racing days' means days on
            which a    permitted    association   conducts
            greyhound racing.   (Emphasis added.)

Subsection     1.03(2) of the act provides:

               'Association'   means a person  licensed
            under this Act     to conduct a horse race




       5.    We note that article 179e-4, V.T.C.S., provides:

               Any provision in this Act to the contrary
            notwithstanding, the Texas Racing Commission
            shall regulate all aspects of       greyhound
            racing and horse racing in this        state,
            whether or not that racing involves pari-
            mutuel wagering.

We understand  you to ask about the simulcasting    of race
events conducted  by associations   engaged  in pari-mutuel
wagering.  Therefore we do not address the scope or nature
of the authority conferred by article 179e-4, V.T.C.S.  See
Attorney General Opinion JM-971 (1988).




                                  P. 5779
Mr. Hilary B. Doran, Jr. - Page 7 (JM-1102)




        meeting or a greyhound   race meeting    with
        pari-mutuel racing. (Emphasis added.)

Section 6.14 of the act provides that an "association    may
not conduct greyhound  or horse racing" at any place other
than the place designated in its license, except as provided
in the act. Section 6.15 of the act permits, under certain
circumstances,  an "association to conduct races" at a
temporary location.

     Thus, even if we assumed arcuendo that there were a
meaningful   distinction in the    act between    the   words
"conduct" and "present," we construe the act to permit
associations to present only those race meetings    involving
pari-mutuel wagering that are themselves conducted by that
association, i.e. those race meetings   that an association
itself manages, controls, or directs. Our construction     of
the act is strengthened by the fact that sections 6.08 and
6.09 of the act fail to address the allocation of shares and
breakage and the disposition   of pari-mutuel pools    in an
instance in which a simulcast event is presented.   It would
be anomalous for the legislature to intend that associations
be permitted   to engage in wagering   on simulcast    events
without, at the same time, providing a means whereby      the
pari-mutuel pools created by such wagering be allocated.6

     Second, you rely on the legislative history of the act
to support your construction.   You place significance on the
fact that the senate rejected a floor amendment to the act
that expressly would have prohibited wagering on simulcast
events. The amendment would have added section 11.10 to the
act, which provided as follows:

           Sec. 11.10.   SIMULCAST PROHIBITION.   The
        Commission shall adopt rules forbidding the
        simulcasting of any race taking place in this
        state to any other track in this state or any
        other state. The Commission shall also adont
        rules vrohibitina   vari-mutuel  waaerina  on



     6. Our construction of the act is in accord with those
state authorities that have addressed the same issue, con-
struing language that is substantively identical with that
in the Texas act.    See Advanced   Deliverv Serv.. Inc. v.
Gates, 228 Cal Rptr. 557 (Cal. Ct. App. 1986); Atlantic Citv
Racins Ass'n v. Attornev General, 489 A.2d 165 (1985): 66
OP. Cal. Att'y Gen. 225, 66 Op. Cal. Att'y Gen. 94 (1983);
op. KY. Attly Gen. No. 82-4 (1982).




                             P. 5780
Mr. Hilary B. Doran, Jr. - Page 8     (JM-1102)




                  or   horse   aces   which   are   broad-



     Although Texas courts have held that the deletion of a
provision in a pending bill discloses a legislative   intent
to reject the proposal, Smith v. Baldwb      611 S.W.2d  611
(Tex. 1980); Transvortation Qua. Co. v. Maicsvn  580 S.W.2d
334 (Tex. 1979): 5
81 S.W.2d 482 (Tex. 1935), that is nzt" a rule that i;
uniformly followed in every case:

           The rejection of a proposed amendment to a
        statute may constitute    some argument   for
        legislative interpretation of the act amended
        or sought to be amended. To such extent     it
        can be considered by the courts in inter-
        preting the act.   However, the rejection   of
        an amendment  as such does not control the
        construction  of the statute.     82   C.J.S.
        Statutes 5 360.

           There are decisions   holding that in con-
        struing a statute, rejected amendments,       or
        rejected alternative legislation, should not
        be considered, or at least should be given
        little weight, since the courts can have no
        means of knowing the real reasons that in-
        fluenced the legislature   in such rejection.
        In any event, the rejection of an amendment,
        or the elimination     of words    from a bill
        before its passage, is not conclusive of the
        bill's   inapplicability    to   the    matters
        included  in such amendment     or    described
        by such words.   a   73 Am. Jur.2d Statutes
        S 172.

Citv of Inaleside v. Johnson, 537 S.W.2d 145, 153 (Tex. Civ.
APP . - Corpus Christi 1976, no writ).



     7. We note that the underscored language of the tabled
amendment, on its face, would have authorized the commission
to regulate, not just the simulcasts of races conducted    in
other states, but the actual races themselves.    It reason-
able to assume that the senate tabled the amendment in the
belief that such a provision would violate         both  the
Interstate  Horseracing  Act of 1978 and the interstate
commerce clause of the United States Constitution.




                               P. 5781
c
    Mr. Hilary B. Doran, Jr. - Page 9     (JM-1102)




         The Texas cases that have addressed whether the dele-
    tion of a provision in a pending bill discloses  legislative
    intent are easily distinguishable from the instant fact
    situation.  Those cases involved the deletion,    either   in
    conference committee  or during the floor debate     in one
    house, of provisions  that were set forth in the original
    bills, as introduced. Here the amendment offered would have
    constituted an addition to the original bill, not a deletion
    of one of its original provisions.  None of the cases cited
    above involved the tabling of a floor amendment in one house
    of a provision that was not contained in an original bill.

         Under your argument, the fact that the senate rejected
    the floor amendment would authorize not only the commission
    to promulgate rules regulating simulcasting,   but it would
    also authorize the commission to promulgate rules regulating
    off-track wagering.  Surely the legislature did not intend
    that such an important      public policy matter    as   the
    authorization of simulcasting  or of off-track wagering   be
    left to the discretion of the commission, especially when no
    other provision of the act supports such a construction.  In
    this instance, it is reasonable to assume that the senate
    tabled the floor amendment for the reason that it would be
    useless  for the legislature     to forbid something     not
    authorized by the act in the first place.

         We need not determine, however, the significance,    if
    any, of the senate's tabling of the floor amendment       to
    the act that expressly would have prohibited    wagering  on
    simulcast events. While the Code Construction Act, which
    governs the construction of each code enacted by the 60th or
    any subsequent legislature, appears to permit consideration
    of legislative history regardless of whether a code provi-
    sion is thought to be ambiguous,8 that act does not control
    the construction of civil statutes. Where there is no ambi-
    guity and the intent of the legislature is apparent from the



         8. Chapter 311 of the Government Code, the Code Con-
    struction Act, conta.ins section 311.023, which provides in
    pertinent part:

               In construing a statute, whether or not
            the statute is considered ambiauous on its
            face, a court may consider among      other
            matters the:

               (3) legislative history.    (Emphasis added.)




                                  Pa 5782
Mr. Hilary B. Doran, Jr. - Page 10       (JM-1102)




words of the statute,     it is not necessary    to analyze
extrinsic evidence of legislative intent. Minton v. Frank,
545 S.W.2d 442   (Tex. 1976).  The Texas Racing Act is not
ambiguous on this issue and its intent is clear.     In any
event, the rejection of such an amendment is not tantamount
to an affirmative grant of authority, permitting either the
simulcasting of race meetings or off-track wagering.

     An agency may not exercise authority that exceeds the
clear intent of   the legislature,  Gulf Coast Water Co. v.
Cartwrig&   160 S.W.2d 269 (Tex. Civ. App. - Galveston 1942,
writ ref'd'w.o.m.), nor may it enlarge its powers by its own
orders. Railroad Comm n      Fort Worth & D C. Rv co., 161
S.W.2d 560   (Tex. Civ:         - Austin   i942, writ
                                                  .    ref'd
w.0.m.).   Accordingly,   we- conclude that article    179e,
V.T.C.S., the Texas Racing Act, confers no authority on the
Texas Racing Commission to promulgate rules regulating   the
simulcasting of race events, because the act itself does not
permit wagering on such events.

                         SUMMARY
           Because article 179e, V.T.C.S., the Texas
        Racing Act, does   not itself authorize    an
        association to engage in pari-mutuel wagering
        on simulcast events, the Texas Racing Commis-
        sion is without authority to promulgate rules
        regulating simulcast events.

                                   , vewjru


                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive,Assistant   Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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