by Raymond V. Whelan
The El Primero Fair Association, backed by Cash, Marilyn, and Keith Asmussen and the Laredo National Bank, still has to clear some hurdles before it can open a non-profit Class 3 racetrack near Laredo, Texas.
John Weninger, the association's attorney, said it already has about $15.8 million invested in building a facility, and that is has plans to run 16 days of Thoroughbred and Quarter Horse racing each year. A significant amount of the proceeds would fund various agricultural studies and scholarships, he said.
Nevertheless, the Texas Racing Commission made no motion to grant El Primero a license at its August meeting because the association did not present a "recognition of exemption" from the Internal Revenue Service.
Weninger said El Primero already has met the criteria Texas has established for an association to receive a Class 3 license. And, the attorney claimed, the commission is applying a "different standard" because the section pertaining to fairs in the Texas Racing Act "doesn't say anything about IRS approval."
"I'm not trying to reinvent anything," Weninger said. "I pulled the application for the Gillespie County Fair and Festivals Association (which currently operates a Class 3 track), and there's nothing in their file where the letters IRS stand next to each other. If you look at the first draft of my articles of incorporation, I just scratched out Gillespie County, put in El Primero Association, and filed it with the state. I didn't do anything different."
Still, before the commission can reconsider the El Primero application, Weninger said the Texas State Office of Administrative Hearings must hear the case Dec. 10 or Dec. 11 in Austin or Laredo, and then send the commission its proposal for decision.
"We'll have to go through that administrative process, in which we'll 'prove' that we comply with the law," Weninger said. "We're bringing in another lawyer to help me work on it, because it's a ton of work."