TEE ATTORNEY GENERAL OF TEXAS GERALD C. MANN AUSTIN aa, TEXAS

Honorable R.T. Burns County Attorney Walker County Huntsville, Texas Dear Sir: June 6, 1939

Opinion NO. o-659 Re: Is themach~ine describeda gambling device? Your request for an opinion on the above stated question has been received by this office.

Your letter reads, inpart, as follows: "Article619 of the Penal Code of Texas prohibits the exhibitingof machines for gambling purposes."Wehave a party here inHuntsville that has a machine where theplayer places a nlckle in themachine and if h,estrikesa luckyhole he gets more plays and if he does not strike a luckyhole he has to contributeanoth~er nickle if he is successful." We quote fromyour letter of June 3, 1939, clarifying the aboveparagraphs as follows:

'The sheriff informsme and also the operator of themachine informsme that if a man played a nickle' in th,e mach,ine,

and if he struck a lucky hole, he would get threemore plays, and if he did not strikea lucky hole, he would have to contributeanother nickle. I am informedby the sheriff that at times they get all the way from eigh~tto fifty or sixty free playg and If the person does not want to play them at that time, they give them a receipt for the plays on a slip of paper, I have been unable to ascertain whether they pay for these extraplays inmoney or not, but it is the consensus of opinion of,,thesheriff'sdepartment that they do pay off inmoney.

Article 619 of the penal Code reads as follows: "If anyperson shalldirectly, or as agent or employe for another, or throughany agent or agents, keep or exhibit for thepurpose of gaming, any policy game, any ga~mingtable,bank, wheel or device of any name or descriptionwhatever, or any table, bank, wheelHonorable R.T. Burns, June 6, 1939, Page 2 

### o-659

or device for thepurpose of gaming which has no name, or any slotmachine, any pigeon hole table, any jennylind table, or table of any kindwhatsoever, regardless of the name or whether named or not, he shall be confined in thepenitentiarynot less than two normore than four years regardless of whether any of the above mentioned games, tables,banks, wheels, devices or slot machines are licensed by law or not, Any such table, bank, wheel, machine or device shall be consideredas uaed for gaming, thereon." ifmoney or anything of value is bet

Article 620 of the Penal Code reads as follows: "It being intendedby the foregoingArticle to include every species of gaming device known by the name of table or bank, of every kind whatever, thisprovision shallbe construed to includeAny and all games which in common languageare said to be played, dealt, kept or exhibited.

The constituentelements of a gaming table or a bank are as follows: It Is a game, it has a keeper, dealer or exhibitor; it is based on the principle of thee one against themany, the keeper,dealer or exh~ibitor

against the bettors, directly or indirectly;andmust be exhibited, that is, displayed for the purpose of obtainingbettors. Starnes vs. State, 21 Tex. 692; Lyle vs. State, 30 Cr. Rep. 11.8; Averheart vs. State, 18 S.W. 416; Bell vs. State, 22 S.W. 687; Shower vs. State, 33 S.W. 107%.

follows: We quote from the case of Sternes vs. State, supra,as

"Any change, cover,disguise, or subterfuge in any such ingredients,or in relation to the structure upon which the game: is exhibited, or the instrument. by which the result is developed, for the purpose of evasion,will not change the character of the game. It Is difficult to imagineany species of table or bank, or a gaming device resembling either, that is kept for gaming, thatwould not be included in the clauses of the code."

It matters not how the table or the bank is constructed or operated if it is kept or exhibited for gamingpurposes. Whether or not the tablewas designed for gamingpurposes is immaterial; it is the game or character of play on it thatdeterminesits status. Doyle vs. State, 19 Cr. Rep. 410; Estes vs. State, 10 Tex. 300.

In the cases of Carroll vs. State, 81 S.W. 294. Brogden vs. State, 80 S.W. 387';and Houghton vs. Flacks, 93 S.W. (2dj 781, it was held among other things that it is unnecessary to prove thatmoney or anythlng of valuewas bet upon thegame.

In the cases of Adams, et al. vs. Antonio, 88 S.W. (2d) 504; Roberts, et al. ISGossett, et al., 8% S.W. (2d) 507; and Harrington vs. Fla~cks,93 S.W. (2d) 781, and a number of others caseswhich we do notdeem necessary to cite here, itwas held thatmarble machines were in

the class of gaming tables and banks as prohibited by Article 619 of the Penal Code.

By virtue of the foregoing authorities,you are respectfully advised that it is the opinion of this department that the machine described and the purpose for which it is exhibited constitutes a gambling or gaming device.

remain Trusting that the foregoing answersyour inquiry,we

Yours very truly ATTORNEY GENERAL OF TEXAS By s/ ArdellWilliams Ardell Williams Assistant AW:FG:wc

APPROVED: s/ GERALD C. MANN A'FPORNEY

GENERAL OF TEXAS Approved Opinion CommitteeBy s/RQB Chairman