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TX JM-903 May 13, 1988

Could Texas Racing Commission members send substitutes to meetings, and could the commission fund a laboratory for racehorse and greyhound drug testing?

Short answer: The comptroller's chief clerk could sit, vote, and count toward a quorum when the comptroller was unavoidably absent because a statute authorized the clerk to perform the comptroller's official duties. Other commission members could not send substitutes, even nonvoting ones, and the commission could not spend or contract to develop a testing laboratory, although it could approve another accredited laboratory with the Texas Veterinary Medical Diagnostic Laboratory's approval.

Apply this to your situation

This page answers the general question as of 1988. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 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.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. Statutes can be amended; verify current law before relying on anything here. Consult a licensed attorney for advice on your specific situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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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

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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