January 27, 1950

Hon. Stewart W. Hellman Criminal District Attorney Fort Worth, Texas Opinion No. V-991 Re: The legality of operating the amusement device called the Dear Sir: “Hollycrane” inTexas.

Your request for an opinion reads inpart as follows:

‘“We are advised that the “HOLLYC,RANE” consists ofawooden cabinet 48 inches by 32 inches, which is enclosed ontwo sides and the top with crystal-clear glass, which provides perfect vision without distortion. The cabinet contains aportable playing field 30 inches long by 20 inches wide, the floor ofwhich is dressed with colored sea shells, upon which are laid small metal animals. The playing field is illuminated by flourescent lights, giving the player aperfect view ofthe field and all operating features ofthe machine, andwhich, inthe operation ofthe machine, permits the player to use his own judgment ofdepth perception by the operation oftwo ; electric controls, one each for forward and cross motion. The skill with which these electric control levers are manipulated regulates and controls the operation of the crane. The levers are provided at the front of the machine, one lever enables the player tomove the crane inaforward motion along the length ofthe playing field from one end to the other or to any desired position on said playing field. The other lever enables the player tomove the crane to the right across the playing field entirely from one side to the other or to any desired location onthe playing field.

““Uponreaching the desired location either forward or sideward or both, the crane, automatically lowers to the playing field, uponwhich are laid theHon. Stewart W. Hellman, page 2 (V-991)

metal animals, and the crane then depending on the skill and accuracy ofthe player, picks up one ofthe metal animals. The crane then automatically rises and returns tothe starting position
. . ~*” You subsequently advised us that:

“It is my understanding that there are three types ofthe HOLLYCRANE machine. They are all operated in a similar manner, the difference inthem being the premiums which are given, ifthe operators of said machines are skillful enough to receive anything for their efforts.

‘MACHINE NUMBER ONE. It is my understand& ing that this machine will deliver to the operator a premium; which, when so operated, would be a gambling device and aviolation of law. “MACHINE NUMBER TWO. It is my understanding that on this machine, the operator can also receive free games from the machine, ifhe is skillful enough inthe operation of same. This also would be aviolation oflaw.“MACHINE NUMBER THREE. Itis my contention that when an operator ofthis machine, inusing his skill, comes in contact with one ofthe premiums, and said premium is lifted by the HOLLYCRANE, and nothing delivered andno free games given, that this is not aviolation of law, but a game of skill. This is the machine onwhich Iwould like to have an opinion from the Attorney General’s office, ifyou think Iam correct inmy views ofthe matter.” Trade literature submitted with your original request describes the Hollycrane and its operation as follows:

“Wide expanse ofplay-field adds to the excitement ofplay and emphasizes the skill-factor which is important in practically all territory ~~~ Mirror at end of cabinet creates illusion of greater-than-actual size
. D

.Although average operating cycle is only 10seconds, the excitement, suspense and skill-thrill is so intense that players receive complete satisbction and are eager to try again ~. . -* You have expressed the opinion that those models ofthe Hollycrane described by you as “Machine No. One” and “Machine No. Two” are gaming devices, butwish to know whether the operation of “Machine.

Hon. Stewart W. Hellman, page 3 (V-991)

No. Three” violates the gaming laws ofTexas.

Article 619, V.P.C., provides 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 gaming table, bank, wheel or device of any name or description whatever, or any table, bank, wheel or device for the purpose of gaming which has no name, or any slot machine, any pigeon hole table, anyjenny-lind table, or table ofany kind whatsoever, regaidless ofthe name or whether named or not, he shall be confined in the penitentiary not less than two nor more than four years regardless ofwhether 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 used for gaming, ifmoney or anything ofvalue is bet thereon.” We agree with your conclusion that the fiirst two types of the Hollycrane described by you are gaming devices as defined by our statutes. Inthe recent case ofHoffman v. State, 219S.W.Zd 539 (Tex. Civ. App. 1949), itwas held:

“Appellant first argues that his Bridgo game (the ball-throwing feature) is admittedly and infact one of skill and such as the statutes against gaming were never intended to cover; as opposed to pure games of chance with associated gambling or betting. We will consider the ball-tossing device as a game of skill in accordance with stipulations, though the question ofwhether itwas predominantly of such character, ifopen, would appear debatable. However, the point need not be argued. Our courts have sonstrued Arts. 619, 621 and 625 as drawing no distinction between games of chance and games of skill, but as condemning all games upon which money or ‘anything of value’ is staked or waged onthe outcome; taking the view, in short, that playing agame, whether of skill or chance, for money or ‘other thing ofvalue’ constitutes gambling or gaming. Adams v. Antonio, Tex. Civ. App., 88 S.W.2d 503 (writ refused); Callison v0State, Tex. Civ. App., 172 S.W.2d 772. ‘This betting on games is the evil our law seeks to eradicate.’ Stearnes v. State, 21 Tex. 692, 693. Texas courts further hold that amusement is a ‘thing ofvalue’ and that free games won on marble machines at least are within condemnation ofHon. Stewart W. Hellman, page 4 (V-991)

the statutes. State v. Langford, Tex. Civ. App., 144 S.W.2d 448; Hightower v. State, Tex. Civ. App., 156 S,W.2d 327 (writ refused)

. , . .” We do not believe the present statutes on gaming devices prohibit that model ofthe Hollycrane which gives no reward to the player, and described by you as “Machine No. Three.” However, actual employment of this model as an adjunct to gaming, as by ‘sidebets” or by separate rewards by the displayer, for example, would bring this model within the statutes proscribing gaming. Hightower, v. State, 156S.W.Zd 327 (Tex. Civ. App. 1941, error ref.), wherein the court said:

“As to the other machines

. . . it is undisputed ~:::r,: ; that none had any automatic ‘pay-off’ adjustment; and that the only result from playing thereof was the smusement ofthe player in securing a high score, No testimony whatever discloses an understanding on%hepaTtibf any store proprietor to pay ‘over the counter’ for high or particular scores; or thatany player was seen or permitted to bet onthe machines’ operation.
. . .

“It would follow, therefore, that marble machines ofthe ‘non-pay-off’ variety, as towhich no evidence is adduced oftheir being used for gaming purposes at the time of seizure, are not gambling devices within the inhibition of above statute?;

. . .An entirely different situation would exist if, by mechanical adjustment, the machines were made to pay off; or ifan understanding be hadwith the proprietor ‘over the counter’ to the same effect; or in case of knowledge and acquiescence by the machine keeper to awagering by players upon resulting scores. The machines would then become gambling devices per se, placing defendants factually within the purview of Houghton v. Fox, supra; . . . .” From the above itfollows that the model ofthe Hollycrane which gives no reward to the player, while not per se illegal may become so if it is used as an adjunct to gaming.
SUMMARY Two described models ofthe mechanically operated amusement device known as the “Hollycrane,‘ one ofwhich rewards the player inpremiums and the other infree games, are gaming devices under the provisions ofArt. 619, V.P.C. Hoffman v. State, 219S.W.2d 539 (Tex. Civ. App. 1949). A third model, giving no reward to theHon. Stewart W. Hellman, page 5 (V-991)
player, while not per se illegal may become so ifused as an adjunct to gaming. Hinhtower v. State, 156S.W. 2d 327 (Tex. Civ. App. 1941, error ref.). Yours very truly, PRICE DANIEL Attorney General

Willis E. Gresham APPROVED: Assistants Charles D. Mathews Executive Assistant :‘7

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