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 the mach~ine described a gambling 

device? 

Your request for an opinion on the above stated question 

has been received by this office. 

Your letter reads, in part, as follows: 

"Article 619 of the Penal Code of Texas 

prohibits the exhibiting of machines for gambling 

purposes. 

"We have a party here in Huntsville that 

has a machine where the player places a nlckle in 

the machine and if h,e strikes a lucky hole he gets 

more plays and if he does not strike a lucky hole 

he has to contribute anoth~er nickle if he is successful. " 

We quote from your letter of June 3, 1939, clarifying the 

above paragraphs as follows: 

'The sheriff informs me and also the operator 

of the machine informs me that if a man played a nickle' 

in th,e mach,ine, and if he struck a lucky hole, he would 

get three more plays, and if he did not strike a lucky 

hole, he would have to contribute another nickle. I am 

informed by the sheriff that at times they get all the 

way from eigh~t to 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 extra plays in money or not, but it is the consensus of opinion of,,the sheriff's department that they 

do pay off in money. 

Article 619 of the penal Code reads as follows: 

"If any person shall directly, or as agent or 

employe for another, or through any agent or agents, 

keep or exhibit for the purpose of gaming, any policy 

game, any ga~ming table, bank, wheel or device of any 

name or description whatever, or any table, bank, wheel 
Honorable R.T. Burns, June 6, 1939, Page 2 o-659 

or device for the purpose of gaming which has no name, 

or any slot machine, any pigeon hole table, any jennylind table, or table of any kind whatsoever, regardless 

of the name or whether named or not, he shall be confined in the penitentiary not less than two nor more 

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 considered as 

uaed for gaming, 

thereon." 

if money or anything of value is bet 

Article 620 of the Penal Code reads as follows: 

"It being intended by the foregoing Article to 

include every species of gaming device known by the name 

of table or bank, of every kind whatever, this provision 

shall be construed to include Any and all games which in 

common language are said to be played, dealt, kept or 

exhibited. 

The constituent elements 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 the many, the keeper, dealer 

or exh~ibitor against the bettors, directly or indirectly; and must be 

exhibited, that is, displayed for the purpose of obtaining bettors. 

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 imagine any species of table or 

bank, or a gaming device resembling either, that is 

kept for gaming, that would 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 gaming purposes. Whether 

or not the table was designed for gaming purposes is immaterial; it is 

the game or character of play on it thatdetermines its 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 that money 

or anythlng of value was bet upon the game. 

In the cases of Adams, et al. vs. Antonio, 88 S.W. (2d) 

504; Roberts, et al. IS Gossett, et al., 8% S.W. (2d) 507; and Harrington 

vs. Fla~cks, 93 S.W. (2d) 781, and a number of others cases which we do not 
deem necessary to cite here, it was held that marble 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 answers your inquiry, we 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/ Ardell Williams 

Ardell Williams 

Assistant 

AW:FG:wc 

APPROVED: 

s/ GERALD C. MANN 

A'FPORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/RQB Chairman