Could the Texas Racing Commission make rules allowing betting on horse or dog races shown by simulcast from another track?

Texas AG Opinion JM-1102: Could the Racing Commission Adopt Simulcasting Rules?

Plain-English summary

In 1989, "simulcasting" (running a race at one track and broadcasting it live to bettors at another track, who wager on the outcome) was a hot topic in the racing industry. The chairman of the Texas Racing Commission asked the Attorney General whether the Texas Racing Act let the commission adopt rules regulating simulcasting. The Attorney General said no, and the reason cut deeper than a missing rule: the Act itself did not permit betting on simulcast races in the first place.

The analysis started from a bedrock principle of administrative law. A state agency has only the powers the Legislature expressly gives it, plus those necessarily implied by them. The Racing Act is a detailed statute that hands the commission comprehensive authority over race meetings involving wagering, and it spells out rulemaking power in more than twenty specific places. But it never mentions simulcasting or anything like it. The Attorney General reasoned that if the Legislature had meant to allow wagering on simulcast races, a statute this thorough would have said so and would have set up the machinery to run it.

The commission had two arguments, and the opinion rejected both. First, some commissioners pointed to the word "presented" in the wagering section (11.04) versus "conducted" elsewhere, arguing the difference implied that an association could present, for betting, races run somewhere else. The Attorney General found that throughout the Act the words "present," "hold," "conduct," and "run" are used interchangeably, so no hidden authorization could be squeezed out of the word choice. Even assuming a difference, the Act only lets an association present race meetings it conducts itself, and tellingly, the Act's provisions on splitting betting pools and breakage say nothing about how to divide the pools a simulcast would create, which would be a strange gap if simulcast wagering were allowed. Second, the commission argued that the Senate had rejected a floor amendment that would have expressly banned simulcast wagering, suggesting the Legislature meant to allow it. The Attorney General was not persuaded: rejecting an amendment is not the same as affirmatively granting authority, the rejected amendment was an addition rather than a deletion (which weakens the usual inference), and it was at least as likely the Senate tabled it because it was pointless to forbid something the Act did not authorize anyway.

The opinion closed on the core principle. An agency may not exercise authority beyond the clear intent of the Legislature, nor enlarge its own powers by its own orders. Because the Act did not authorize pari-mutuel wagering on simulcast events, the commission had no authority to make rules regulating them. If Texas wanted legal simulcast wagering, that was a decision for the Legislature to make, not the commission.

Currency note

This opinion was issued in 1989. 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.

This opinion reflects Texas law as it stood in 1989, before the Legislature acted on simulcasting. Texas later amended the Racing Act to authorize and regulate simulcast racing and inter-track wagering, and the Act (article 179e, V.T.C.S.) was recodified into the Texas Occupations Code. As a result, the specific conclusion here, that the commission lacked authority over simulcasting, does not describe current law. Anyone dealing with a present-day simulcasting or pari-mutuel question should work from the current Occupations Code and Racing Commission rules.

Who this opinion affected (as of 1989)

The Texas Racing Commission: The opinion told the commission it could not open the door to simulcast wagering through rulemaking. Its regulatory authority extended only to what the Act itself authorized, and the Act did not authorize simulcast betting.

Racetracks and the racing industry: For associations hoping to broadcast races between tracks and take bets on them, the opinion made clear that step required legislative action, not just a commission rule.

The Legislature: The opinion effectively handed the simulcasting question back to the Legislature, framing it as an important public-policy matter that could not be delegated to agency discretion absent a statutory basis.

Common questions

Could the Racing Commission legalize simulcast betting by rule?
No. The Attorney General concluded the Texas Racing Act did not authorize pari-mutuel wagering on simulcast events, so the commission had no authority to adopt rules regulating simulcasting.

Why did the word "presented" not help the commission's case?
Because throughout the Act the words "present," "hold," "conduct," and "run" are used interchangeably. The Attorney General found no meaningful distinction, and even assuming one, the Act let an association present only race meetings it conducted itself.

Didn't the Senate's rejection of a simulcast-ban amendment show betting was allowed?
No. The opinion held that rejecting an amendment is not an affirmative grant of authority. The rejected amendment was an addition to the bill, not a deletion, and the Senate may simply have thought it pointless to ban something the Act did not permit anyway.

How could simulcast wagering become legal in Texas?
Only through the Legislature. The opinion treated authorizing simulcasting or off-track wagering as a major policy choice for the Legislature, not something the commission could decide on its own.

Background and statutory framework

Article 179e, V.T.C.S., the Texas Racing Act, created the Texas Racing Commission (§ 2.01) and gave it broad authority to regulate and supervise every race meeting involving wagering on greyhound or horse racing, including power to adopt rules for conducting racing and to administer the Act. § 3.02. The Act confers rulemaking authority in over twenty specific instances but never mentions simulcasting. The commission described simulcasting as the electronic transmission of a race conducted at one track and displayed at another licensed track, with pari-mutuel wagering conducted at both locations.

The Attorney General applied the rule that administrative agencies have only the powers expressly conferred by statute, Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1968), together with those necessarily implied, Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). The threshold question was whether the Act permitted wagering at licensed tracks on simulcast events; if not, the commission had no authority to regulate them.

The commission first relied on the words "presented" in section 11.04(a) and "conducted" in section 11.01, arguing the difference implied authority to present races conducted elsewhere for wagering. While every word in a statute is presumed to have a purpose, Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex. 1981), a statute must be read as a whole to give effect to legislative intent, Knight v. International Harvester Credit Corp., 627 S.W.2d 382 (Tex. 1982); State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). The opinion found "present," "hold," "conduct," and "run" used interchangeably throughout the Act (citing §§ 9.03, 9.05, 9.06, 10.02, 11.01, 11.04), so no distinction supported simulcast authority. Even assuming a distinction, the Act permits an association to present only race meetings it conducts itself, and the absence of any provision in sections 6.08 and 6.09 for allocating shares, breakage, and pari-mutuel pools in a simulcast made simulcast wagering implausible. (The opinion set aside article 179e-4, V.T.C.S., which directs the commission to regulate all aspects of racing whether or not it involves pari-mutuel wagering, as outside the question presented. See Attorney General Opinion JM-971 (1988).) The opinion also noted the Interstate Horseracing Act of 1978, 15 U.S.C. §§ 3001 through 3007, which conditions interstate off-track wagers on consents from the host association, host commission, and off-track commission.

The commission's second argument rested on the Senate's rejection of a floor amendment (proposed section 11.10) that would have expressly prohibited simulcasting and simulcast wagering. Although Texas courts have held that deleting a provision from a pending bill can show intent to reject it, Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980); Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979); Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935), that rule is not uniformly followed, City of Ingleside v. Johnson, 537 S.W.2d 145, 153 (Tex. Civ. App. - Corpus Christi 1976, no writ). Those cases involved deleting provisions from bills as introduced, whereas here the amendment would have added to the bill. The opinion reasoned that a rejected amendment does not amount to an affirmative grant, that the Legislature would not leave a major policy matter like simulcasting or off-track wagering to agency discretion without statutory support, and that the Senate may simply have found it useless to forbid something the Act did not authorize. While the Code Construction Act permits considering legislative history even for unambiguous provisions, Gov't Code § 311.023, it does not govern civil statutes, and where intent is apparent from the statute's words, extrinsic evidence is unnecessary, Minton v. Frank, 545 S.W.2d 442 (Tex. 1976). Because an agency may not exceed the clear intent of the Legislature, Gulf Coast Water Co. v. Cartwright, 160 S.W.2d 269 (Tex. Civ. App. - Galveston 1942, writ ref'd w.o.m.), or enlarge its powers by its own orders, Railroad Comm'n v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.), the commission had no authority to regulate simulcasting. Consistent authority from other states construing similar language reached the same result. See Advanced Delivery Serv., Inc. v. Gates, 228 Cal. Rptr. 557 (Cal. Ct. App. 1986); Atlantic City Racing Ass'n v. Attorney General, 489 A.2d 165 (1985).

Citations

Statutory authorities:

• Texas Racing Act, V.T.C.S. art. 179e (§ 2.01 creating the commission; § 3.02 duty to regulate race meetings involving wagering; § 11.01 pari-mutuel rules; § 11.04 wagering inside the enclosure; §§ 6.08, 6.09 allocation of shares, breakage, and pools; §§ 6.14, 6.15 place of racing; §§ 9.03, 9.05, 9.06, 10.02 running and conducting races; § 1.03 definitions)
• V.T.C.S. art. 179e-4 (commission to regulate all aspects of racing whether or not it involves pari-mutuel wagering)
• Interstate Horseracing Act of 1978, 15 U.S.C. §§ 3001 through 3007 (consents required for interstate off-track wagers)
• Government Code § 311.023 (Code Construction Act; consideration of legislative history)

Cases:

• Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1968) (agencies have only expressly conferred powers)
• Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961) (plus necessarily implied powers)
• Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex. 1981) (every word in a statute presumed to have a purpose)
• Knight v. International Harvester Credit Corp., 627 S.W.2d 382 (Tex. 1982) (construe a statute as a whole)
• State v. Terrell, 588 S.W.2d 784 (Tex. 1979) (ascertain legislative intent from the entire act)
• Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980) (deletion of a provision can show intent to reject)
• Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979) (same)
• Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935) (same)
• City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex. Civ. App. - Corpus Christi 1976, no writ) (rejection of an amendment does not control statutory construction)
• Minton v. Frank, 545 S.W.2d 442 (Tex. 1976) (no need for extrinsic evidence where intent is clear)
• Gulf Coast Water Co. v. Cartwright, 160 S.W.2d 269 (Tex. Civ. App. - Galveston 1942, writ ref'd w.o.m.) (agency may not exceed clear legislative intent)
• Railroad Comm'n v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.) (agency may not enlarge its powers by its own orders)
• Advanced Delivery Serv., Inc. v. Gates, 228 Cal. Rptr. 557 (Cal. Ct. App. 1986) (out-of-state authority reaching the same result)
• Atlantic City Racing Ass'n v. Attorney General, 489 A.2d 165 (1985) (same)

Attorney General opinion referenced:

• Attorney General Opinion JM-971 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1102
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1102.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

September 25, 1989

Mr. Hilary B. Doran, Jr.
Chairman
Texas Racing Commission
P. O. Box 12080
Austin, Texas 78711

Opinion No. JM-1102

Re: Whether the Texas Racing Commission may adopt rules 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], id. at § 2.01, and conferred on it broad rulemaking authority governing horse racing and greyhound racing.[1] You ask about the scope of that authority, specifically whether the commission may promulgate rules regulating "simulcasting" 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 supervise every race meeting involving wagering on the result of greyhound or horse racing. All persons and things relating to the operation of those meetings are subject to regulation and supervision. The commission shall adopt rules for conducting racing involving wagering 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.

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.

[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 sections 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.

Administrative agencies have only those powers that expressly are conferred by statute, Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1968), together with those necessarily implied from powers and duties expressly given or imposed. Stauffer v. City 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 promulgate 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 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 as pari-mutuel wagering.[3] Wagering may be conducted only by an association within its enclosure. (Emphasis added.)

Section 11.04 of the act governs wagering and provides:

(a) Only a person inside the enclosure where a race meeting is authorized may wager on the result of a race presented by the association by contributing money to the pari-mutuel pool operated by 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."

(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, § 3.02 (commission shall adopt rules for conducting racing involving wagering).

Your argument focuses on the use of the word "presented" in section 11.04(a), contrasting that with the use of the word "conducted" 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 racetracks 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 signals.

Section 11.04(a) offers additional support for this belief. In that subsection, wagering 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 meaning' rule of statutory construction, we must assume that the use of two different terms indicates a difference in meaning is intended. [Citation omitted.] Use of the word 'presented' indicates that the legislature intended a different meaning from what the 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.)

[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 during 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 subsection 11.04(a).

It is generally presumed that every word in a statute is used for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 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 give effect to that intent. Knight v. International Harvester Credit Corp., 627 S.W.2d 382 (Tex. 1982).

The fundamental rule controlling the construction of a statute is to ascertain, if possible, the intention of the Legislature as expressed in the language of that statute. [Citation omitted.] In ascertaining this intent, courts must examine the entire statute or act and not merely an isolated portion thereof. [Citation omitted.] Further, if the intent of the Legislature is ascertained, courts must enforce that intent even though the intent is not altogether consistent 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," "conduct," and "run" are used interchangeably. See, e.g., §§ 9.03 ("An association shall provide for the running of races . . ."); 9.05 ("When a horse racing association holds both quarter horse and Thoroughbred races . . ."); 9.06 ("If a horse racing association conducts quarter horse and Thoroughbred racing . . ."); 10.02 ("If . . . it is impossible for the licensee to hold or conduct a race . . ."); 11.01 ("Wagering may be conducted . . ."); 11.04 ("Only a person inside the enclosure where a race meeting is authorized may wager on the result of a race presented by the association . . ."). (Emphasis added.)

Section 3.02 of the act requires the commission to "regulate and supervise every race meeting involving wagering on the result of greyhound or horse racing." (Emphasis added.)[5] Subsection 1.03(6) of the act provides:

'Horse race meeting' means the conducting 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 meeting or a greyhound race meeting with pari-mutuel racing. (Emphasis added.)

[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).

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 arguendo 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]

[6] Our construction of the act is in accord with those state authorities that have addressed the same issue, construing language that is substantively identical with that in the Texas act. See Advanced Delivery Serv., Inc. v. Gates, 228 Cal. Rptr. 557 (Cal. Ct. App. 1986); Atlantic City Racing Ass'n v. Attorney General, 489 A.2d 165 (1985); 66 Op. Cal. Att'y Gen. 225, 66 Op. Cal. Att'y Gen. 94 (1983); Op. Ky. Att'y Gen. No. 82-4 (1982).

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 adopt rules prohibiting pari-mutuel wagering on [greyhound] or horse races which are broad[cast . . .]

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. Baldwin, 611 S.W.2d 611 (Tex. 1980); Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979); Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935), that is not a rule that is 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 interpreting the act. However, the rejection of an amendment as such does not control the construction of the statute. 82 C.J.S. Statutes § 360.

There are decisions holding that in construing 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 influenced 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. See 73 Am. Jur. 2d Statutes § 172.

City of Ingleside 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 is reasonable 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.

The Texas cases that have addressed whether the deletion 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 provision is thought to be ambiguous,[8] that act does not control the construction of civil statutes. Where there is no ambiguity and the intent of the legislature is apparent from the 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.

[8] Chapter 311 of the Government Code, the Code Construction Act, contains section 311.023, which provides in pertinent part: "In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: . . . (3) legislative history." (Emphasis added.)

An agency may not exercise authority that exceeds the clear intent of the legislature, Gulf Coast Water Co. v. Cartwright, 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 v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.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 Commission is without authority to promulgate rules regulating simulcast events.

Very truly yours,

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