By Dan Ross
A group of entities associated with various racing-related industries in Texas, including the owners of Lone Star Park, has filed a new lawsuit against the Horseracing Integrity and Safety Act (HISA) in which declaratory and injunctive relief is sought along with a request for a preliminary injunction, according to court filing dated July 29.
Submitted to the United States District Court for the Northern District of Texas, Amarillo Division, the suit focuses on the relative power of the Horseracing Integrity and Safety Authority–the umbrella non-profit established by the Act–to implement the program.
This latest filing is in the same district court–but different division–as a separate lawsuit filed by the National Horsemen's Benevolent and Protective Association (NHBPA) in 2021.
Earlier this year, a federal judge threw out that case. The NHBPA subsequently filed an appeal with the Fifth Circuit Court of Appeals, which is pending.
“The 'Authority' is empowered by law to, among other things, subpoena documents and compel testimony, search businesses and private databases and seize documents, conduct adjudicatory proceedings, and prosecute actions in federal court like other federal prosecutors,” the latest filing states.
“No private individuals have such powers. No private individual can show up at one's door and demand documents and testimony under sanction of law. No private individual can conduct a private search and seizure. And no private individual has the power to hale another private citizen into court to enforce offenses against the public. But the “Authority” does,” the filing adds.
So far, the Texas Racing Commission (TRC) has refused to comply with Act, which went into effect at the start of July, arguing that under Texas law only the commission has the authority to oversee horse racing in the state. HISA's current remit covers only Thoroughbred racing.
As a result, the signal from the state's Thoroughbred tracks cannot be sent out of state and advance deposit wagering companies are prevented from taking betting on Texas Thoroughbred races. There are no Thoroughbred meets scheduled in Texas between now and the end of the year.
According to a spokesperson for the Authority, HISA will mount a legal defence “while the Authority's focus remains on implementing the Racetrack Safety program and finalizing Anti-Doping and Medication Control rules.” Implementation for the latter is scheduled for Jan. 2023.
“The majority of racing participants support HISA's mission to protect those who play by the rules and hold those who fail to do so accountable in order to keep our equine and human athletes safe and the competition fair,” wrote the HISA spokesperson.
“The immense collaboration with state racing commissions, stewards, veterinarians, racetracks, trainers, and other horsemen that has taken place to date is evidence of this support, and we intend to continue to fulfill our mandate and work to make the industry safer,” the spokesperson added.
The plaintiffs include Global Gaming LSP, a limited liability company which owns Lone Star Park, and Gulf Coast Racing LLC, which owns a greyhound racetrack located in Nueces County, Texas. Gulf Coast Racing is allegedly seeking to redesignate the track as a Class 2 horseracing track, according to the filing.
The other two plaintiffs consist of LRP Group Ltd. a limited partnership working towards “operating an active horseracing track” in the south of the state, the filing states, and Valle De Los Tesoros, a limited partnership similarly looking to operate a horseracing track in South Texas, one currently designated inactive by the TRC.
It's unclear whether the planned racetracks listed in the suit are intended for Thoroughbred racing.
Among the arguments the plaintiffs make is that the legal jurisdiction given the Authority is of government power “in general” and of executive power “in particular,” but that the current design of the Authority renders it unconstitutional, meaning it is exercising “nothing other than naked legislative power.”
The plaintiffs write: “The 'Board' of the 'Authority,' comprising private individuals appointed through a Nominating Committee whose membership is established by the Authority's own incorporation documents, has not been appointed through the constitutionally required mechanisms for the exercise of executive power.”
To argue their position, the plaintiffs reference such historic texts as The Federalist papers of U.S. founding father, Alexander Hamilton, and “Commentaries on the Laws of England,” by William Blackstone, an English jurist from the 18th century who long suffered terrible gout.
This latest lawsuit constitutes the fourth legal challenge to HISA. Aside from the NHBPA filing, a case filed by the state of Oklahoma in the United States District Court, Eastern Division of Kentucky, is similarly ongoing.
Late last month, Louisiana and West Virginia won a preliminary injunction in federal court aimed at keeping HISA from being implemented in those two states until the Act's constitutionality gets decided in full.
HISA has since filed motions for stay pending appeal with the United States Court of Appeals for the Fifth Circuit.