When can a New Mexico racetrack casino legally have its gaming machines on, and does it have to set aside money for racing purses?
Plain-English summary
The New Mexico Racing Commission asked two operational questions about the state's five racetrack casinos. When can the slot machines actually be turned on, and how much of the take has to go to racing purses?
The Attorney General's answers come straight from the Gaming Control Act:
The slot machines can only operate on days when the racetrack is also running live horse races or simulcasting horse races. On those days, the casino can offer machines up to 18 hours per day, but no more than 112 hours per week, with the week running Tuesday 8 a.m. to the following Tuesday 8 a.m. The Gaming Control Board must be told in writing what hours the racetrack will use within those limits.
The license is conditional on continuing to run live races. A racetrack that paid more than $8 million in gaming tax in the prior fiscal year must hold at least four live race days a week with at least nine live races per day. A racetrack that paid $8 million or less must hold at least three live race days per week with at least ten live races per day. Falling below those numbers automatically voids the license, unless the Gaming Control Board grants an exception or unforeseen circumstances apply.
On the purse question, the racetrack casino has to pay 20% of its net take "solely to purses" under Section 60-2E-47(E)(1), in addition to gaming taxes. The word "shall" in the statute makes this mandatory. The State Racing Commission has regulatory oversight of that 20% and adopts the rules for how the purse money is distributed.
What this means for you
If you operate one of the five New Mexico racetrack casinos
Plan your gaming hours around your live and simulcast race calendar. No race day, no machines. Build the weekly hour budget against the Tuesday-to-Tuesday window. Track the daily 18-hour limit and the weekly 112-hour limit, and notify the Gaming Control Board in writing of the hours you intend to operate.
Watch your live-racing day count. Whichever tier you fall into based on prior-year gaming tax (more than $8M = four days a week, nine races each; $8M or less = three days a week, ten races each), missing the threshold means automatic license void. If you anticipate falling short for legitimate reasons, request an exception from the Gaming Control Board under Section 60-2E-27(F) before the shortfall happens, not after.
Treat the 20% purse fee as a fixed cost on every dollar of net take. There is no statutory discretion. The Racing Commission's rules govern distribution; coordinate with that office, the New Mexico Horse Breeders Association, and the horsemen's representatives on how the money flows.
If you are an owner, trainer, or jockey racing in New Mexico
Your purse pool is statutorily protected at 20% of racetrack casino net take. If you suspect a casino is short-paying or otherwise diverting that 20%, the State Racing Commission has direct regulatory oversight under Section 60-2E-47(F) and is the right place to raise concerns. The Gaming Control Board oversees the licensing and operating-hours side.
If you sit on the Racing Commission
Two pieces of authority. First, you set the rules for how the 20% net-take purse fee is distributed. Second, you have regulatory oversight of that money under Section 60-2E-47(F). The Gaming Control Board separately licenses and audits the gaming side, but the purse-distribution piece is yours.
If you are a state legislator
The opinion identifies several places where the statutory framework is precise and others where commission discretion fills in. The 18-hour daily and 112-hour weekly caps, the live-racing thresholds, and the 20% purse fee are statutory. The hours within the caps, the rules for distributing purse money, and exceptions to the live-racing threshold are administrative. Any change to industry economics that flows through this framework should target the right layer.
If you are a gaming or racing attorney
The opinion follows plain-meaning interpretation under Reule Sun Corp. v. Valles, and treats "shall" as mandatory under State v. Jacob F. There is no novel statutory construction here; the value is the AG's confirmation that the Gaming Control Act provides no carve-out from the 20% purse fee and that operating hours are tied to days when the track is actively running or simulcasting.
Common questions
Q: Can a racetrack casino run slot machines on dark days?
A: No. The casino can only operate gaming machines on days the racetrack is either conducting live horse races or simulcasting horse races. Section 60-2E-27(E).
Q: How are the 18-hour and 112-hour limits calculated?
A: The day runs from just after midnight through midnight of the same calendar day, with no more than 18 hours of operation. The week runs from Tuesday 8 a.m. to the following Tuesday 8 a.m., with a 112-hour cap.
Q: What if a racetrack falls below the live-race day requirement?
A: The gaming operator's license automatically voids unless the Gaming Control Board has granted an exception or unforeseen circumstances apply (Section 60-2E-27(F)). The threshold scales with prior-year gaming-tax payments.
Q: Is the 20% purse payment optional or required?
A: Required. Section 60-2E-47(E)(1) uses "shall," which the AG treats as mandatory under State v. Jacob F.
Q: What is "net take"?
A: Net take is the income a gaming operator earns after subtracting allowable expenses and losses from gross revenue. The technical definition lives in 15.1.8.16 NMAC and Section 60-2E-38.
Q: Who decides how the 20% purse money gets distributed among races?
A: The State Racing Commission. Section 60-2E-47(E)(1) directs the payment to be made "in accordance with rules adopted by the state racing commission." Section 60-2E-47(F) gives the Commission regulatory oversight.
Background and statutory framework
A racetrack gaming operator's license under Section 60-2E-27(A) is conditional on the racetrack also being licensed to conduct live or simulcast horse races. The license keeps the racetrack and the casino tied together by design.
Operating hours are capped in two dimensions. Daily, no more than 18 hours of gaming machine operation, calculated from just after midnight to midnight. Weekly, no more than 112 hours, with the week running Tuesday 8 a.m. to Tuesday 8 a.m. The licensee picks the hours within those caps and notifies the Gaming Control Board in writing.
The license auto-voids if certain live-racing thresholds are not met, scaled by prior-year gaming tax payments:
- Tracks that paid more than $8 million in gaming tax must run at least four live race days per week with at least nine live races each day.
- Tracks that paid $8 million or less must run at least three live race days per week with at least ten live races per day.
Section 60-2E-27(F) lets the Gaming Control Board approve exceptions, and unforeseen circumstances can also support a deviation.
Section 60-2E-47(E)(1) requires racetrack casinos to pay 20% of net take "solely to purses," in addition to gaming taxes. Section 60-2E-47(F) gives the State Racing Commission regulatory oversight of that 20%. The Commission's rules govern distribution.
The opinion applies the plain-meaning canon from Reule Sun Corp. v. Valles, 2010-NMSC-004, and the mandatory reading of "shall" from State v. Jacob F., 2019-NMCA-042.
Citations and references
Statutes and rules:
- NMSA 1978, § 60-2E-27 (Racetrack gaming operator license)
- NMSA 1978, § 60-2E-38 (Net take)
- NMSA 1978, § 60-2E-47 (Gaming taxes and fees)
- 15.1.8.16 NMAC; 15.2.1.7 NMAC (Definitions)
Cases:
- Reule Sun Corp. v. Valles, 2010-NMSC-004
- State v. Jacob F., 2019-NMCA-042
Source
- Landing page: https://nmdoj.gov/publication/opinion/2025-11-opinion-operation-of-racetrack-casinos-and-collection-of-money-for-purses/
- Original PDF: https://nmdoj.gov/wp-content/uploads/AG-Opinion-2025-11.pdf
Original opinion text
August 14, 2025
OPINION
OF
RAÚL TORREZ
Attorney General
Opinion No. 2025-11
To:
New Mexico Racing Commission
Re:
Attorney General Opinion – Operation of Racetrack Casinos and Collection of Money for
Purses
Questions Presented and Short Answers
1. When may a casino associated with one of the state's five horserace tracks (Racetrack
Casino) be legally open and in operation?
A Racetrack Casino may operate while its corresponding racetrack conducts live horse
racing or simulcasts horse races, provided the Racetrack Casino's license is active under
NMSA 1978, Section 60-2E-27 (2017). A Racetrack Casino may operate for up to eighteen
hours per day, with a maximum of one hundred and twelve hours per week.
2. Must a portion of a Racetrack Casino's net take during this time period be collected for the
eventual payment of purses?
Yes. A Racetrack Casino open during this period must pay twenty percent (20%) of its net
take solely to purses, in accordance with rules adopted by the State Racing Commission
pursuant to NMSA 1978, Section 60-2E-47(E)(1) (2023).
Background
The New Mexico Racing Commission (NMRC) has requested an opinion regarding when
Racetrack Casinos may operate and whether these casinos must pay money into purses. From our
understanding, New Mexico has five Racetrack Casinos, i.e., horse racetracks with casinos
attached to them. These racetracks may operate gaming machines on their premises if they have a
gaming operator's license. Section 60-2E-27(A). To acquire a gaming operator's license, a
racetrack must be licensed to conduct live horse races or simulcast races. Id. However, these
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licenses have several restrictions regarding when gaming machines can be operated and how the
profits generated from these machines are used. See § 60-2E-27; § 60-2E-47. Guided by this
authority, our analysis of the NMRC's request follows below.
Analysis
1. A Racetrack Casino is authorized to operate while its racetrack conducts live horse
racing or simulcasts of races for up to eighteen hours a day, but no more than one
hundred and twelve hours a week.
We begin by determining the time period during which a Racetrack Casino may operate, which is
set by statute. Our "analysis begins by examining the words chosen by the Legislature and the
plain meaning of those words." Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512.
The "[g]aming machines on a racetrack gaming operator licensee's premises may be played only
on days when the racetrack is either conducting live horse races or simulcasting horse race
meets." Section 60-2E-27(E). During these days, the hours of gaming machine operations are
regulated as follows:
[W]hen gaming machines are permitted to be operated, a racetrack gaming operator
licensee may offer gaming machines for operation for up to eighteen hours per day;
provided that the total number of hours in which gaming machines are operated
does not exceed one hundred twelve hours in a one-week period beginning on
Tuesday at 8:00 a.m. and ending at 8:00 a.m. on the following Tuesday. A racetrack
gaming operator licensee may offer gaming machines for play at any time during a
day; provided that the total hours of operation in each day from just after midnight
of the previous day until midnight of the current day does not exceed eighteen
hours. A racetrack gaming operator licensee shall determine, within the limitations
imposed by this subsection, the hours it will offer gaming machines for operation
each day and shall notify the board in writing of those hours.
Id. A Racetrack Casino's gaming operator license can be voided if the racetrack fails to meet
certain requirements. Section 60-2E-27(B). These requirements vary depending on the net take
of the racetrack, and are set forth as follows:
A racetrack's gaming operator's license shall automatically become void if:
1.
the racetrack no longer holds an active license to conduct pari-mutuel wagering;
2.
the racetrack paid gaming tax to the state on its net take in an amount greater than
eight million dollars ($8,000,000) in the prior fiscal year pursuant to Section 60-2E-47 NMSA 1978 and fails to maintain a minimum of four live race days a week
with at least nine live races on each race day during its licensed race meet, except
as provided in Subsection F of this section; or
3.
the racetrack paid gaming tax to the state on its net take in an amount equal to eight
million dollars ($8,000,000) or less in the prior fiscal year pursuant to Section 60-2E-47 NMSA 1978 and fails to maintain a minimum of three live race days a week
with at least ten live races on each day during its licensed race meets, except as
provided in Subsection F of this section.
Id. The live race days and number of live races can be fewer than Section 60-2E-27(B) requires if
the licensee acquires permission from the gaming control board or unforeseen circumstances occur.
Section 60-2E-27(F).
2. A Racetrack Casino is required to pay twenty percent of its net take to purses.
The revenue derived from this type of gaming operator license is subject to taxes and special fees.
Section 60-2E-47. Among these fees is twenty percent of the racetrack's gaming machine's net
take, which is put toward purses. "In addition to the gaming tax, a gaming operator licensee that
is a racetrack shall pay: (1) twenty percent of its net take solely to purses in accordance with rules
adopted by the state racing commission[.]" Section 60-2E-47(E)(1).
The term "'[s]hall' [is] given mandatory meaning, unless there are indications in the statute that
the mandatory reading is repugnant to the manifest intent of the Legislature." State v. Jacob F.,
2019-NMCA-042, ¶ 11 (citations omitted). This language indicates that the twenty percent fee that
goes to purses is mandatory, and there is nothing in the Gaming Control Act that indicates that this
fee is discretionary.
Therefore, a Racetrack Casino is required to pay this fee when operating. Moreover, the NMRC is
responsible for the regulatory oversight of this twenty percent and has broad discretion in
managing this money. Section 60-2E-47(F) ("The state racing commission is . . . responsible for
regulatory oversight of the twenty percent[.]"); Section 60-2E-47(E)(1) (providing that the twenty
percent of net take shall be paid "in accordance with rules adopted by the state racing
commission").
Conclusion
During live horse racing or simulcast racing, a Racetrack Casino may operate its gaming machines
for up to eighteen hours a day and a maximum of one hundred and twelve hours per week, with
the weekly cap resetting on Tuesday at 8:00 a.m., so long as it conducts the minimum number of
races or receives an exception from the NMRC.
Furthermore, the Gaming Control Act provides no exception to the requirement that a Racetrack
Casino pay twenty percent of its net take. Thus, collection of this amount is mandatory. This money
is to be used for paying purses as determined by NMRC rules.
Please note that this opinion is a public document and is not protected by the attorney-client
privilege. It will be published on our website and made available to the general public.
RAÚL TORREZ
ATTORNEY GENERAL