Could Texas Racing Commission members send substitutes to meetings, and could the commission fund a laboratory for racehorse and greyhound drug testing?
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This page answers the general question as of 1988. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-903: Racing Commission Substitutes and Drug-Testing Laboratories
Plain-English summary
Texas Comptroller Bob Bullock asked who could take an absent member's place on the Texas Racing Commission and whether the commission could help create a laboratory for drug testing racing animals.
The Attorney General drew a line between authority supplied by statute and authority a commissioner tried to pass to someone else. Government Code section 403.003 directed the comptroller's chief clerk to perform the comptroller's duties when the comptroller was unavoidably absent or unable to act. Because serving on the Racing Commission was a duty attached to the comptroller's office, the chief clerk could sit in the comptroller's place, vote, and count toward a quorum. The chief clerk acted under legislative authority, not under a delegation from the comptroller.
The rule was different for the commission's other members. Their work of deliberating and deciding how to regulate greyhound and horse racing was non-ministerial. Without express statutory authority, they could not send substitutes to act, vote, or merely sit and speak for them. The commission also could not create that substitute arrangement by rule.
On animal drug testing, the Racing Commission could require testing and approve laboratories. It could not loan or transfer money to the Texas Veterinary Medical Diagnostic Laboratory to develop a laboratory, and it could not accomplish the same thing through an interagency contract. The commission could approve a different accredited public or private laboratory, but the Texas Veterinary Medical Diagnostic Laboratory also had to approve it and could not withhold approval unreasonably.
Currency note
This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Could the comptroller's chief clerk vote on the Racing Commission when the comptroller was absent?
Yes, when the comptroller was unavoidably absent or otherwise unable to act. The opinion read Government Code section 403.003 as authorizing the chief clerk to perform the comptroller's official duties, including the ex officio Racing Commission role. The chief clerk could vote and count toward a quorum.
Could other Racing Commission members send voting substitutes?
No. The opinion characterized commission members' deliberation and decision-making as non-ministerial duties that could not be delegated without express statutory authority.
Could a substitute attend and speak if the substitute did not vote?
No. The opinion said a member could not delegate the responsibility to deliberate at meetings, and the commission could not authorize that arrangement by rule.
Could the Racing Commission pay to develop a drug-testing laboratory?
No. The opinion found no statutory authority for the commission to establish a laboratory, transfer money to develop one, or contract with the Texas Veterinary Medical Diagnostic Laboratory to develop one. The appropriations act also barred unauthorized transfers between agencies or programs.
Did the commission have to use the Texas Veterinary Medical Diagnostic Laboratory for every test?
No. The governing statute allowed testing by another public or private agency if it was accredited, approved by the Racing Commission, and approved by the Texas Veterinary Medical Diagnostic Laboratory. The opinion said the diagnostic laboratory could not unreasonably withhold approval.
Background and statutory framework
Section 2.02 of the Racing Act placed eight members on the commission: six gubernatorial appointees and two ex officio members, the Public Safety Commission chair and the comptroller. Section 403.003 of the Government Code required the comptroller to appoint a chief clerk and authorized that clerk to perform the comptroller's duties when the comptroller was unavoidably absent or unable to discharge them.
The opinion relied on Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. Comm'n App. 1924, opinion adopted). Pfeffer treated service on the state board of education as a duty attached to the comptroller's office, so the chief clerk performed that duty by legislative authority rather than delegated authority. JM-903 applied that reasoning to the Racing Commission.
For the remaining commissioners, the opinion cited Moody v. Texas Water Commission, 373 S.W.2d 793, 797 (Tex. Civ. App. - Austin 1963, writ ref'd n.r.e.), Attorney General Opinions WW-66 (1957) and H-884 (1976), and Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942). These authorities supported the rule that a public officer could not delegate non-ministerial deliberative duties without express statutory authority.
Sections 14.03 and 3.07(d)-(e) of the Racing Act governed medication and drug testing. The commission could require testing and approve laboratories, but the statute assigned testing charges to the racing association receiving the services. The opinion also applied the rule that a state agency possessed only powers expressly granted or necessarily implied, citing Railroad Commission v. Atchison, Topeka & Santa Fe Railway Co., 609 S.W.2d 641, 643 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.). The Interagency Cooperation Act did not enlarge those powers, and the General Appropriations Act prohibited unauthorized transfers of appropriated money.
Citations
Statutory authority:
- Government Code section 403.003
- V.T.C.S. article 179e, sections 2.02, 3.07(d)-(e), and 14.03
- V.T.C.S. article 4413(32), section 5
- General Appropriations Act, Acts 1987, 70th Legislature, Second Called Session, chapter 78, article V, section 61, at 1123
Cases:
- Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. Comm'n App. 1924, opinion adopted)
- Moody v. Texas Water Commission, 373 S.W.2d 793, 797 (Tex. Civ. App. - Austin 1963, writ ref'd n.r.e.)
- Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942)
- Railroad Commission v. Atchison, Topeka & Santa Fe Railway Co., 609 S.W.2d 641, 643 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.)
- Allstate Insurance Co. v. State Board of Insurance, 401 S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd n.r.e.)
Prior Attorney General materials referenced: WW-66 (1957), H-188 (1973), and H-884 (1976).
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-903
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0903.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.
THE ATTORNEY GENERAL
OF TEXAS
May 13, 1988
Honorable Bob Bullock Opinion No. JM-903
Comptroller of Public
Accounts Re: Authority of Racing Commis-
L.B.J. State Office sion members to delegate duties,
Building and authority of Racing Commis-
Austin, Texas 78774 sion to contract with Texas
Veterinary Medical Diagnostic
Laboratory (RQ-1390)
Dear Mr. Bullock:
YOU ask several questions about the Texas Racing
Commission,1 which regulates greyhound racing and horse
racing in Texas. V.T.C.S. art. 179e. You first ask a
series of questions about the authority of commission
members to delegate their duties.
The Racing Act, V.T.C.S. art. 179e, §2.02, provides
that the commission shall consist of eight members: six
appointed by the governor with the advice and consent of the
Senate and two ex officio members, the chairman of the
Public Safety Commission and the Comptroller of Public
Accounts. YOU ask the following questions about the
commission members' authority to delegate their duty to sit
on the commission:
(a) May the Chief Clerk of the Comptroller of
Public Accounts sit in the Comptroller's
absence as a voting member of the Commission?
--
P
1. Two of your questions are governed by the Open
Meetings Act, article 6252-17, V.T.C.S., and one is governed
by the Texas Open Records Act, article 6252-17a, V.T.C.S.
Those questions will be answered by separate letter.
p. 4454
Honorable Bob Bullock - Page 2 (JM-903)
(b) If he does so, should he be counted in
determining whether a quorum is present at
Commission meetings?
(c) May other Commission members send
substitutes to act for them in Commission
meetings that they are unable to attend?
(d) If (c) is answered "yes," should the
substitutes for the other members be counted
in determining whether there is a quorum
present at Commission meetings?
(e) May the Commission allow substitutes for
the other members to vote in place of the
absent members?
(f) May the Commission allow substitutes for
the other members to sit for the absent
members and speak but not vote?
Your first question is whether the comptroller's chief
clerk may sit as a voting member of the commission. Section
403.003 of the Government Code provides:
(a) The comptroller shall appoint a chief
clerk who shall:
(1) perform the duties of the comptrol-
ler when the comptroller is unavoidably
absent or is incapable of discharging
those duties;
(2) act as comptroller if the office of
comptroller becomes vacant until
comptroller is appointed and qualified:
and
(3) under the comptroller's direction,
supervise the keeping of the books,
records, and accounts of the office and
perform other duties required by law or
the comptroller.
(b) The chief clerk shall take the
official oath and give bond in the amount of
$10,000, payable in the same manner as the
comptroller's bond, and conditioned on the
faithful performance of the duties of the
office.
p. 4455
Honorable Bob Bullock - Page 3 (JM-903)
P
Thus, when the comptroller is unavoidably absent or is
incapable of performing the duties of his office, his chief
- clerk is authorized to perform those duties. Your question,
then, is whether the comptroller's responsibility to sit as
a member of the Racing Commission constitutes a "duty of
office.*'
In Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. Comm'n App.
1924, opinion adopted), the court considered whether the
comptroller's chief clerk was authorized to perform the
duties attaching to the office of comptroller as a member of
the state board of education. The court wrote:
It is observed that articles 4318 and
4343, respectively, require that the
secretary of state and the comptroller shall
each appoint a chief clerk. It is not
optional with either to appoint or not
appoint such chief clerk. The statute is
mandatory in providing for a chief clerk for
each. The offices of chief clerk for each is
thus created by statute. It is likewise
observed that the statutes provide that, in
the absence of the secretary of state, or his
inability to act from any cause, the chief
clerk may perform all the duties required by
law of that officer and that it shall be the
duty of the chief clerk of the comptroller to
discharge the duties of the comptroller when
he may be unavoidably absent or incapable
from sickness, or other causes, to discharge.
said duties.
The service of the secretary of state and
the comptroller on the board of education is
the performance by each of a duty attached by
the statute to the office held by each. The
duties are not personal. They are duties
attached to the offices. Any holder of the
office of secretary of state or comptroller
must serve as a member of the board of
education as a part of the duties of those
offices respectively. Since the statutes
provide that the chief clerks may
respectively perform the duties attaching to
/4 those offices, the chief clerks may, in the
contingencies mentioned in the statutes,
perform the particular duties attaching to
the offices of secretary of state and
comptroller by virtue of the statutes making
p. 4456
Honorable Bob Bullock - Page 4 (JM-903)
them members of the board of education. In
such cases the chief clerks do not perform
those duties by delegation of authority from
their chiefs. They perform them by virtue of
authority of the Legislature in the same way
that their chiefs are authorized to perform
them
-- The Legislature could have provided
that, in the absence, etc., of the secretary
of state and comptroller, the chief clerks of
either or each should be members of the board
of education. The Legislature has done the
same thing in a different way by prescribing
that the chief clerks provided by statute
shall and may, in the absence of the
secretary of state and the comptroller,
perform the duties of those officers, among
which are duties arising from their member-
ship on the state board of education.
(Emphasis added.)
260 S.W. at 1033-34. Because the comptroller's respons-
ibility to sit as a member of the Racing Commission is
attached to his office rather than to him personally, it
follows from the court's decision in Pfeffer v. Mahnke,
supra, that the comptroller's chief clerk is authorized to
perform the comptroller's duty to sit as an ex officio
member of the Racing Commission when the comptroller is
unavoi.dably absent or is otherwise unable to act. It also
follows that when the chief clerk takes the place of the
comptroller as a member of the Racing Commission, he may
vote and should be counted in determining whether a quorum
is present.
YOU also ask whether other members of the commission
may send substitutes to act for them. It is well estab-
lished that, in the absence of express statutory authority,
a public official may not delegate non-ministerial duties.
Moody v. Texas Water Commission, 373 S.W.2d 793, 797 (Tex.
Civ. App. - Austin 1963, writ ref'd n.r.e.); Attorney
General Opinion WW-66 (1957). A commission member's duty to
participate in deliberations and decisions about the
regulation of greyhound and horse racing in Texas is
non-ministerial and may not be delegated. See Attorney
General Opinion H-884 (1976). Therefore, none of the
commissioners, including the comptroller, may deleoate their
authority to act as members of the commission. The
comptroller's chief clerk is authorized to sit as a member
of the commission in the comptroller's absence by virtue of
statutory authority, not by virtue of a delegation. Pfeffer
v. Mahnke, 260 S.W. at 1034.
p. 4457
Honorable Bob Bullock - Page 5 (JM-903)
YOU also ask whether the commission may allow
substitutes for other members to sit for the absent members
and speak but not vote. In the absence of express statutory
authority, a commission member may not delegate his respon-
sibility to deliberate at meetings. The commission may not
authorize such delegation by rule. See generally H-188
(1973); see also Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942).
Three questions remain:
Whether the Commission would be authorized to
loan or otherwise transfer money to Texas A&M
to get ready for drug testing of racing
animals.
If not, may an interagency contract properly
be entered into between the Commission and
A&M to help A&M establish a lab to test
racing animals for drugs?
Whether the Commission is required to use
Texas A&M for drug testing of animals if
cheaper and equally effective drug testing of
animals is available through other sources.
Section 14.03 of the Racing Act provides, in part:
(a) The commission shall adopt rules
prohibiting the illegal influencing of the
outcome of a race, including but not limited
to the use of medication, stimulants, or
depressants to attempt to or to influence
illegally the outcome of a race.
(b) The commission may require prerace
testing by urinalysis, saliva testing, or
blood testing, by any combination of the
three, or by any other testing method
recognized by the racing industry to
determine whether such a drug, chemical, or
other substance has been administered and
shall require postrace testing by such a
method. The commission shall adopt rules
,- that require all such tests to be conducted
using state-of-the-art methods. On any
positive test showing the presence of
prohibited drugs, chemicals, or other
substances, the animal shall be immediately
disqualified and all persons who have
p. 4458
Honorable Bob Bullock - Page 6 (JM-903)
administered or applied the drug, chemical,
or other substance or any electric device or
spur may be immediately suspended pending
hearing by the stewards or judges with the
right of appeal to the commission. Such a
suspension may be stayed, in the discretion
of the commission only, during the pendency
of such appeal. The commission shall require
that all urine samples be frozen and main-
tained for a period of one year in order to
enable veterinarians and chemists to conduct
follow-up tests to detect and identify
prohibited drugs. All other specimens shall
be maintained for testing purposes in the
manner prescribed by the commission. Such a
test may also be required by the owner or
trainer of an animal or by the association at
whose racetrack the animal is entered in a
race meeting.
V.T.C.S. art. 179e, §14.03(a), (b). Subsections (d) and (e)
of section 3.07 of the act provide:
(d) Medication or drug testing performed
under Section 14.03 of this Act shall be
conducted either by the Texas Veterinary
Medical Diagnostic Laboratory or in
conjunction with or by a private or public
agency that is approved by the commission and
by the Texas Veterinary Medical Diagnostic
Laboratory and that is accredited bv the
American Association of Veterinary Laboratory
Diagnosticians. Charges for services
performed under this section by the Texas
Veterinary Medical Diagnostic Laboratory or
by an approved and accredited private or
public agency shall be forwarded to the
commission for approval as to reasonableness
of the charges for the services. Charges may
include but are not limited to expenses
incurred for travel, lodging, testing, and
processing of test results. The reasonable
charges associated with medication or drug
testing conducted under this Act shall be
paid by the association that receives the
services. On the approval of the charges as
reasonable. the commission shall forward a
copy of the charges to the association that
receives the services for immediate payment.
All persons performing testing services under
p. 4459
Honorable Bob Bullock - Page 7 (JM-903)
this section and Section 14.03 of this Act
must be licensed under Article 7 of this Act.
A person conducting tests under this section
is a state veterinarian for purposes of
Subsection (a) of this section.
(e) To pay the charges associated with
the medication or drug testing, an associa-
tion may use the money retained by the
association on tickets that are purchased as
wagers on winning horses or greyhounds and
that are not cashed by the holders of the
tickets. If additional amounts are needed to
pay all charges, the association shall pay
those additional amounts. If the amount
retained exceeds the amount needed to pay the
charges, the association shall pay the excess
to the comptroller for deposit in the manner
provided by Section 3.09 of this Act.
(Emphasis added.)
V.T.C.S. art. 179e, §3.07(d), (e).
You ask whether the commission is authorized to loan or
transfer money to the Texas Veterinary Medical Diagnostic
Laboratory2 "to get ready for drug testing of racing
2. You phrase your questions in terms of the
commission's authority to contract with Texas A & M
University. We assume that you intend that reference to
mean the Texas Veterinary Medical Diagnostic Laboratory,
which is referred to in section 3.07(d). The Texas
Veterinary Medical Diagnostic Laboratory was created by
article 7465b, which provides:
Sec. 1. There is hereby created an agency of
the State of Texas to be known as the Texas
Veterinary Medical Diagnostic Laboratory. It
shall not be a part of The Texas A & M
University System but it shall be under the
jurisdiction and supervision of the Board of
Regents of The Texas A & M University System.
The said Board of Regents shall staff the
agency with an executive director and such
other employees necessary for the proper
functioning thereof, and such executive
(Footnote Continued)
p. 4460
Honorable Bob Bullock - Page 8 (JM-903)
animals." A state agency has only those powers expressly
granted to it by the legislature or necessarily implied.
Railroad Commission v. Atchison, Topeka & Santa Fe Railway Co., 609 S.W.2d 641, 643 (Tex. Civ. App. - Austin 1980,
writ ref'd n.r.e.). The Racing Commission has authority to
order drug testing and to approve the laboratories that
perform such drug testing. The commission does not, how-
ever, have authority under the applicable statutes to set up
a laboratory itself or to contract with the Texas Veterinary
Medical Diagnostic Laboratory or any other entity for the
purpose of setting up a laboratory. Also, a rider to the
current appropriations act provides:
APPROPRIATION TRANSFERS. a. None of the
money appropriated by this Act may be
transferred from one agency or department to
another agency or department, or from one
appropriations item or program to another
appropriation item or program, unless such
transfer is specifically authorized by this
Act.
General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. V, §61, at 1123. See also Id. art. III, at
954 (appropriation to the Texas Veterinary Medical
Diagnostic Laboratory of money to be used "for establishing
a drug testing program for race horses and dogs").
Therefore, the commission may not loan or otherwise transfer
money to the Texas Veterinary Medical Diagnostic Laboratory
to set up a laboratory for drug testing.
You also ask whether the Racing Commission and the
Texas Veterinary Medical Diagnostic Laboratory may enter
into an interagency contract to help the Texas Veterinary
Medical Diagnostic Laboratory establish a laboratory. The
Interagency Cooperation Act, article 4413(32), V.T.C.S.,
does not enlarge the authority of state agencies. V.T.C.S.
art. 4413(32), §5. Because the Racing Commission has no
authority to establish a laboratory for drug testing, it may
(Footnote Continued)
director and employees shall be eligible to
participate in the same retirement systems
and personnel benefits available to employees
of The Texas A & M University System.
V.T.C.S. art. 7465b, §1.
p. 4461
Honorable Bob Bullock - Page 9 (JM-903)
not contract with Texas Veterinary Medical Diagnostic
Laboratory to establish a laboratory for drug testing.
-
Your last question is whether drug testing must be
performed by the Texas Veterinary Medical Diagnostic
Laboratory if "cheaper and equally effective drug testing of
animals is available."3 The Racing Act expressly provides
that drug testing shall be conducted either by the Texas
Veterinary Medical Diagnostic Laboratory "or in conjunction
with or by a private or public agency that is approved by
the commission and by the Texas Veterinary Medical
Diagnostic Laboratory and that is accredited by the American
Association of Laboratory Diagnosticians." V.T.C.S. art.
179e, §3.07(d). Therefore, the Racing Commission may
approve any accredited laboratory to perform drug testing as
long as the Texas Veterinary Medical Diagnostic Laboratory
also approves. The Texas Veterinary Medical Diagnostic
Laboratory may not unreasonably withhold its approval. See
Allstate Insurance Co. v. State Board of Insurance, 401
S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd
n.r.e.).
SUMMARY
The comptroller's chief clerk may perform
the comptroller's duties as ex officio member
of the Racing Commission if the comptroller
is unavoidably absent or otherwise unable to
discharge those duties. In such a situation
the chief clerk may vote and should be
counted in determining whether a quorum is
present. Members of the Racing Commission
may not delegate their duties as members of
the commission. The chief clerk is
authorized to act in the comptroller's
absence by virtue of statutory authority, not
by virtue of delegation.
3. The act does not anticipate that there will be
P only one approved laboratory. Nothing in section 3.07(d)
would prevent the commission from approving more than one
laboratory. Also, the commission must approve the
reasonableness of the charges made by any approved
laboratory.
p. 4462
Honorable Bob Bullock - Page 10 (JM-903)
The Racing Commission has no authority to
spend money to develop a laboratory to
perform drug testing, and the commission has
no authority to contract with the Texas
Veterinary Medical Diagnostic Laboratory to
develop a laboratory to perform drug testing.
The commission may approve an accredited
laboratory other than the Texas Veterinary
Medical Diagnostic Laboratory to perform drug
testing, but the Texas Veterinary Medical
Diagnostic Laboratory must also approve the
laboratory.
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 Sarah Woelk
Assistant Attorney General
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