A Fort Worth judge late Thursday dismissed a state lawmaker’s challenge of a plan to allow historical racing machines at dog and horse racetracks statewide, including Lone Star Park at Grand Prairie.
Rep. Matt Krause, R-Fort Worth, sued the Texas Racing Commission, hoping to prevent the slot-machine-like devices — which replay races that have already been run — from being allowed in Texas.
Even though state District Judge David Evans agreed with Krause that the commissioners don’t have the authority to allow the machines, he said in his ruling that he had to dismiss the case because Krause had no right to intervene.
“I’m disappointed,” Krause said. “I would have loved to have gotten the injunction and stopped this here.
“But the judge seems to agree with us that the commission operated outside their authority. I feel a bit vindicated that the judge agreed with us on the law.”
Krause said he is considering an appeal.
A second lawsuit was filed in Austin this week to stop historical racing.
Robert Elrod, a spokesman for the commission, declined to comment Thursday because of the pending suit.
On Aug. 29, the Racing Commission voted 7-1, with one abstention, for a rule change to allow historical racing.
Supporters have said the machines are needed to help struggling Texas racetracks compete with out-of-state tracks that offer casinos, bigger crowds and bigger purses.
Opponents say these machines look and act much like slot machines, essentially bringing a form of casino-style gambling to Texas.
Krause had initially hoped to prevent a vote by the commission, but Evans ruled against that request last month when he learned that the new rule wouldn’t take effect until 20 days after being published in the Texas Register.
The rule change has been submitted for publication and is scheduled to take effect Sept. 28, barring legal action, officials say.
But track owners can’t immediately install the machines. Each track must apply to the commission for a permit to use historical racing. The commission will review each request — and each proposed game — case by case, Elrod has said.
The next Racing Commission meeting is tentatively set for Oct. 14.
Historical racing is the replaying of past races on machines with sounds and symbols similar to slot machines.
Unlike with traditional casino slots, the payoff is tied to historical race results. No information such as horse names, dates and tracks is included that could help players identify the winners in advance.
This week, two dozen groups that benefit from charitable bingo in Texas sued to stop the commission from allowing historical racing.
Their suit maintains that the historical racing rule violates not only the Texas Racing Act and the Administrative Procedure Act but also the Texas Constitution. And, the suit maintains, charitable bingo would take a big hit.
“We know from experience in other states that this important source of charity support, which sustains more than 1,000 organizations all over Texas, will dry up virtually overnight if casino gambling is allowed and bingo cannot compete,” said Steve Bresnen, an Austin-based attorney and lobbyist who represents charitable bingo interests.
“We have no choice under the circumstances except to oppose the commission’s illegal actions.”
Krause said the ruling in his case may bolster the second suit.
“With the bingo lawsuit, they won’t have any standing problems,” he said. “I think this ruling will help those that filed that lawsuit.”
A good message?
Supporters of historical racing were encouraged by Evans’ ruling.
“We remain hopeful that the Racing Commission will ultimately prevail and assistance can be provided that is much needed to the racing industry,” said John Elliot, CEO of Global Gaming Solutions, which owns Lone Star Park.
Lone Star officials have said they are considering applying to the commission to allow the machines.
Andrea Young, president of Sam Houston Race Park, said: “We thank Judge Evans for his ability to focus on the law in this case. While we disagree with some of the statements in the opinion, we agree with his ruling.
“We look forward to making an application under the historical racing rule to ensure that the Texas horse industry can have the benefit of this important new technology and the added purses it will create.”
Although Krause didn’t prevail, opponents of historical racing said the ruling sends a good message.
“It is clear from the ruling that the Racing Commission did not have the authority to approve instant racing,” said Christine Dorchak, president and general counsel of Grey2K, a greyhound protection organization. “Slot machines are not horses or dogs, and instant-racing machines are not races.
“Even though Judge Evans found that slot machines are certainly not the equivalent of horse and dog racing, he was forced to dismiss this first injunction on a technicality. We are confident that the instant-racing rule will be overturned.”
For years, gambling advocates have unsuccessfully lobbied lawmakers to allow slot machines or casino gambling at state racetracks, something they believe is needed to keep Texas competitive with states that allow gambling.
The commission received a petition this year from those who race and breed horses in Texas, asking for rule changes to allow historical race wagering.
State Rep. Dan Flynn, R-Van, sent a letter to Texas Attorney General Greg Abbott asking whether the commission has the authority to allow the machines at racetracks.
Some lawmakers and others have asked the commission not to move forward with the proposal, saying that the proposed rules would expand gambling in Texas.
Opponents say it’s clear that historical racing would expand casino-style gambling in Texas. They say that if it looks and plays like a slot machine, it’s effectively a slot machine regardless of whether a pari-mutuel system determines the payoff.