                THE   ATTORNEY        GENERAL
                         OF   TEXAS



                         October 3, 1989



Hr. Hilary B. Doran, Jr.          Opinion NO. JM-1104
Chairman
Texas Racing commission           Re: Authority of Texas Rac-
P. 0. Box 12080                   ing commission to redefine
Austin, Texas 78711-2080          by rule the term "breeder"
                                  (RQ-1795)
Dear Mr. Doran:
     You ask the following question about the Texas     Racing
Act, article 179e, V.T.C.S.:
          Does the Section 6.08 of the Texas Racing
       Act require the Texas Racing Commission to
       pay breeders* awards, under the Texas Bred
       Incentive Program for thoroughbred horses, to
       the owner of the mare at the time          of
       conception of    the accredited    Texas-bred
       horse?

     The Racing Act provides for a certain percentage
                                                * _. of the
breakage1 to be paid to breeders of Texas-mea         nor&es.
V.T.C.S. art. 179e, f 6.08(c)(Z).    Your question involves
the definition of nbreederll for purposes of          section
6.08(C)(Z). Section 6.08(d)(Z) defines nbreederG' as Ita
person who is owner of record, 8t the ~&ima of conceotiou, of
the mare that foaled the accredited Texas-bred horse."    YOU
explain that although the preceding definition is the
uniform definition of 'breederW for quarter horses, it is
not the uniform definition of mbreederlWfor thoroughbreds.
You state that throughout the United States the *'breeder"of
a thoroughbred is the owner at the time of foaling.       You


     1. The "breakage" is "the odd cents by which the
amount payable on each dollar wagered exceeds a multiple of
10 cents, except in the event a minus pool occurs, in which
case the breakage shall be in multiples of five cents."
V.T.C.S. art. 179e, 9 l-03(20).




                                 p. 5790
Mr. William A. Meincke - Page 2     (JM-1104)




also state that the Racing Commission urged the legislature
to bring Texas law into line with standard practice by
amending article 1790 to define "breeder" as the person who
is the breeder according to rules of the appropriate state
horse breed registry. The legislature, however, did not
enact either of the bills that would have done so. w    S.B.
448, 71st Leg. (1989); H.B. 1232, 71st Leg. (1989).
     Your question is whether the Racing Commission must
apply the definition of wbreederw set out in section
6.08(d)(2) when it distributes the breakage to breeders of
thoroughbreds. You suggest that the definition of O'breederOq
set out in section 6.08 should not be applied to thorough-
breds because it is inconsistent with the purposes of the
statute, one of which is to encourage the horse-breeding
industry. You also state that w[t]o require the payment of
breeders' awards to persons who, traditionally and according
to other states breeders* programs, are not considered the
'breeder' of the horse appears to be an absurd result."
        Unless a statute is ambiguous, a court must follow the
clear    language of   a statute. B              Dallas N.A .
m.            Inccr 691 S.W.Zd 605, 607 (Tex. 1985). In S immons
Y.,           220 S.W. 66 (1920), the Supreme Court wrote:
           Courts must take statutes as they find them.
          More than   that, they should.be willing to
           take them as they find them.      They should
           search out carefully the intendment of a
           statute, giving full effect to all of its
           terms. But they must find its intent in its
           language, and not elsewhere.     They are not
           the law-making body. They are not respon-
           sible for ommissions in legislation.      They
           are responsible for a true and fair inter-
           pretation of the written law.

LSi. at 70.     However problematic the current statutory
definition   of    l'breederVa may   be   when   applied  to
thoroughbreds, it is not ambiguous. Conception and foaling
are clearly distinct events. Consequently, neither this
office nor the Racing Commission has authority to define
"breeder of a thoroughbredI1 for purposes of section 6.08 as
the owner at the time of foaling rather than the time of
conception.




                                 p. 5791
Mr. William A. Meincke - Page 3 (JM-1104)




                      SUMMARY
            The Racing Commission has no authority
       to disregard the statutory definition of
       wbreederm in regard to thoroughbreds for
       purposes of section 6.08 of the Texas Racing
       Act, article 179e. V.T.C.S.




                                   JIM     NATTOX
                                   Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MccRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLBY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General




                              p. 5792
