HonorableWard Casey OpinionNo. M-839

County Attorney Ellis County Re: Whether a certain coin Waxahachie, Texas operatedmachine would fallwithin 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 machinewould fallwithin the prohibition of Articles 619, 642a, and 654, Texas Penal Code.
You describe themachine as follows:
“A coin operatedmachine 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 ispurchasing. After purchasing the ticket the roll advances and the customer can then see the value of the next ticket. The lowestvalue of any ticketpurchased is a $.50 discount on any $10.00purchase in thepf;;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 insertshis 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 theproceeds after a complete roll of tickets has been dispensed,with the operator of the premises paying off allwinning tickets in the form of discountson his merchandise or services. "The roll of ticketsmay be installed in such

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Honorable Ward Casey, Page 2 (M-839)

a manner that the customerdoes not know either the value of the tickethe will receive or the value of the second ticket." (Emphasisadded). Article 619, generallydefining gaming devices prohibited, reads as follows: "If any person shall directly,or as agent or employee for another, or throughany agent or agents, keep or exhibit for thepurpose of gaming, anypolicy game, any gaming table, bank, wheel or device of any name or descriptionwhatever, or any table,bank,wheel or device for the purpose of gamingwhich has no name, or any slotmachine, anypigeon hole table, any jennylind table, or table of anykind whatsoever, regardless of the name or whether named or not, he shall be confined in thepenitentiary not less than two nor more than fouryears regardless of whether any of the abovementioned games, tables,banks, wheels, devices or slot machines are licensedby 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." "Slotmachines", as gaming devicesunder Article 619, are furtherdefined and prohibitedunderArticle 642awhich provides, in its relevantpart, the following: "Section 1. The term 'slotmachine', as used in

thisAct, means:

"(b) Any machine ormechanicaldevice designed andmanufactured or adapted to operate by means of the insertionof a coin, token, or other object and designed,manufacturedor adapted so thatwhen operated itmay deliver, as the result of an application of an element of chance, anymoney or property; or II II

. . .

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Article 654 prohibiting a lottery reads as follows:
"If anyperson shall establish a lotteryor dispose of any estate, real or personal, by lottery,he shallbe finednot less than one hundrednor more than one thousanddollars; or if anyperson shall sell, offer for sale or keep for sale any ticket orpart ticket in any lottery,he shallbe fined not less than ten nor more than fiftydollars." Under the factspresented 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 purchasingmore 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 ticketswere 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 questionpresented wherein the court held that a chewing gum vendingmachine,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 receivenothing 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 quotedwith approval from a New York decision, People ex rel v. Jenkins, 153App. Div. 512, 138N.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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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 secondnickel. That this uncertain option has in it such an element of chance as constitutes gambling can hardlybe questioned. In fact, this element of chance only gives to the machine its value; and that its use iswithin the direct prohibition of the statute seems clear."' (atp. 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 courtheld that a tradingmachine requiring the insertion of a nickel,which always paid at least a nickelback in trade,but with the chance of a player gettingmore,was a gaming device and theplayer was guilty of betting at a gaming table and bank. Although penal statutesare to be construed strictly they should not be construed so strictlyas to defeat the plain legislative intent. Head v. Hunter, 141 F.2d 449. As was so aptly stated in Moberly v. Deskin, 169Mo.App. 672, 155 S.W. 842 at 844 (1913):
"Inno field of reprehensibleendeavorhas the ingenuity of man been more exerted than in the invention of devices to complywith the letterbut to do violence to the spirit and thwart the beneficent objects and purposes of the lawsdesigned to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventivegenius have been allowed by the courts to accomplishno greater result than that of demonstrating the inaccuracyand insufficiency of some of the old definitionsof gambling thatwere made before the advent of the era of greatly expanded, diversified, and cunningmechanical inventions. The chief element of gambling is the chance or uncertainty of the hazard. It is not essential that one of the parties to thewager stands to lose."

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Our opinion is that the coin operatedmachinewhich you describe is a gaming device and a lotterywithin the prohibition of Article 619, 642a, Section lb, and 654.
SUMMARY The coin operatedmachine designed andmanufactured or operated so that with each play for the sum of $.25 themachine delivers, in addition to the trade discount ticket of a value which is known to theplayer, the additional option to purchase another trade discount ticketwhich may range in value from $1.00 to $31.00 in trade discounts, is a gaming device and lotterywithin theprohibition of Article 619, 654, and 642a, Texas Penal Code.
Yours very truly,
CRAWFORD C. MARTIN Attorney General of Texas

By: NOLA WHITE First Assistant Preparedby 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 LegalAssistant
ALFRED WALKER Executive Assistant

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