Honorable Ward Casey Opinion No. M-839 

County Attorney 

Ellis County Re: Whether a certain coin 

Waxahachie, Texas operated machine would 

fall within the prohibition 

of Articles 619, 642a, and 

Dear Mr. Casey: 654, Texas Penal Code. 

Your recent letter requests our opinion as to whether 

a certain coin operated machine would fall within the prohibition of Articles 619, 642a, and 654, Texas Penal Code. 

You describe the machine as follows: 

“A coin operated machine which includes a reel or 

drum on which a roll of tickets is dispensed one 

at a time after insertion of a quarter, and contains a window by which the customer can see the 

value of the ticket he is purchasing. After purchasing the ticket the roll advances and the 

customer can then see the value of the next ticket. 

The lowest value of any ticket purchased is a $.50 

discount on any $10.00 purchase in the pf;;kz;s 

where the machine is located. The only 

the customer can see at one time is the one which 

will be dispensed when he inserts his quarter. 

However, on inserting the quarter, the roll will 

also advance and allow hrm to see the value of 

the next ticket. He can then elect to purchase 

the next ticket or not. The values of the tickets 

give discounts ranging from $1.00 to $31.00. The 

owner of the machine and the operator of the premises 

where it is located split the proceeds after a complete roll of tickets has been dispensed, with the 

operator of the premises paying off all winning 

tickets in the form of discounts on his merchandise 

or services. 

"The roll of tickets may be installed in such 

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Honorable Ward Casey, Page 2 (M-839) 

a manner that the customer does not know either 

the value of the ticket he will receive or the 

value of the second ticket." (Emphasis added). 

Article 619, generally defining gaming devices prohibited, 

reads as follows: 

"If any person shall directly, or as agent or 

employee 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, 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 used for gaming, if money or 

anything of value is bet thereon." 

"Slot machines", as gaming devices under Article 619, are 

further defined and prohibited under Article 642a which provides, 

in its relevant part, the following: 

"Section 1. The term 'slot machine', as used in 

this Act, means: 

"(b) Any machine or mechanical device designed 

and manufactured or adapted to operate by means 

of the insertion of a coin, token, or other object 

and designed, manufactured or adapted so that when 

operated it may deliver, as the result of an 

application of an element of chance, any money 

or property; or 

II II . . . 

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Honorable Ward Casey, Page 3 (M-839) 

Article 654 prohibiting a lottery reads as follows: 

"If any person shall establish a lottery or dispose 

of any estate, real or personal, by lottery, he 

shall be fined not less than one hundred nor more than 

one thousand dollars; or if any person shall sell, offer 

for sale or keep for sale any ticket or part ticket in 

any lottery, he shall be fined not less than ten nor 

more than fifty dollars." 

Under the facts presented by you it is apparent that 

the coin operated machine in question is designed, manufactured, 

and operated so that there is an element of chance in the delivery of the trade discount tickets. When the customer pays 

his quarter on the first ticket, he is purchasing more than 

what he sees, that is, the election to purchase the next ticket, 

the value of which he does not know but which may range from 

$1.00 to $31.00 in trade discounts. Of course if the roll of 

the tickets were installed in such a manner that the customer 

does not know the value of the ticket he will receive, then 

an additional element of chance exists. 

We believe that the case of Queen v. State, 246 S.W. 384 

(Tex.Crim., 1922), is in point on the question presented wherein 

the court held that a chewing gum vending machine, by the 

operation of which, on depositing a nickel in the slot, the 

depositor receives a package of gum , whereupon the machine 

indicates that on the next play he will receive nothing or an 

indicated number of trade checks, which may be exchanged for 

merchandise, or played in the machine on the chance of receiving 

a greater number of checks, is a lottery. Also, the court in 

Queen quoted with approval from a New York decision, People 

ex rel v. Jenkins, 153 App. Div. 512, 138 N.Y. Supp. 449 

7~. 4501, which held that: 

"'The element of chance lies in the fact that upon 

the turning of the lever and the deposit of the 

gum and number of checks indicated there is 

further indication of how many trade checks, if 

any, may be obtained upon the dropping of the second 

nickel. The number of trade checks, however, 

which can be obtained upon the dropping of the 

second nickel is only indicated after the first nickel 

has been dropped and the lever turned. Thus, in 

addition to the gum and trade checks indicated as 

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Honorable Ward Casey, Page 4 (M-839) 

the certain receipts upon the dropping of the nickel, 

is given an option to obtain a package of gum and 

an uncertain number of trade checks upon the 

dropping of the second nickel. That this uncertain 

option has in it such an element of chance as 

constitutes gambling can hardly be questioned. In 

fact, this element of chance only gives to the 

machine its value; and that its use is within the 

direct prohibition of the statute seems clear."' 

(at p. 385). 

Accord, Stranger v. State, 298 S.W. 906 (Tex.Crim., 1927) and 

Boatright v. State, 38 S.W.Zd 87 (Tex.Crim. 1931); also 135 

A.L.R. 104, 141 et seq. 

In Lytle v. State, 100 S.W. 1160 (Tex.Crim., 1907), the 

court held that a trading machine requiring the insertion of a 

nickel, which always paid at least a nickel back in trade, but 

with the chance of a player getting more, was a gaming device 

and the player was guilty of betting at a gaming table and 

bank. 

Although penal statutes are to be construed strictly 

they should not be construed so strictly as to defeat the 

plain legislative intent. Head v. Hunter, 141 F.2d 449. 

As was so aptly stated in Moberly v. Deskin, 169 Mo.App. 

672, 155 S.W. 842 at 844 (1913): 

"In no field of reprehensible endeavor has the 

ingenuity of man been more exerted than in the 

invention of devices to comply with the letter but 

to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed 

to suppress the vice of gambling. Be it said 

to the credit of the expounders of the law that 

such fruits of inventive genius have been allowed 

by the courts to accomplish no greater result than 

that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling 

that were made before the advent of the era of 

greatly expanded, diversified, and cunning mechanical 

inventions. The chief element of gambling is the 

chance or uncertainty of the hazard. It is not 

essential that one of the parties to the wager 

stands to lose." 

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Honorable Ward Casey, Page 5 (M-839) 

Our opinion is that the coin operated machine which 

you describe is a gaming device and a lottery within the 

prohibition of Article 619, 642a, Section lb, and 654. 

SUMMARY 

The coin operated machine designed and manufactured or operated so that with each play for the 

sum of $.25 the machine delivers, in addition to 

the trade discount ticket of a value which is 

known to the player, the additional option to 

purchase another trade discount ticket which may 

range in value from $1.00 to $31.00 in trade discounts, 

is a gaming device and lottery within the prohibition 

of Article 619, 654, and 642a, Texas Penal Code. 

Yours very truly, 

CRAWFORD C. MARTIN 

Attorney General of Texas 

By: 

NOLA WHITE 

First Assistant 

Prepared by Guy C. Fisher 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Wardlow Lane 

James McCoy 

Jay Floyd 

Rex White 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

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