DAN MORALES 

Al-r”RNEY CENERAL 

QBffice of tip Bttqrnep @eneral 

&ate of IDexae 

January 23,199s 

The Honorable David Sibley 

Chair, Senate Committee 

on Economic Development 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 787 11 

Opinion No. DM-466 

Re: Constitutionality of section 47.01(4)(B), Penal 

Code, which excepts certain types of electronic 

contrivances from the detinition of “gambling 

device,” and related questions (RQ-1060) 

Dear Senator Sibley: 

You have requested our opinion regarding the constimtionality of the legislature’s 1995 

amendment to the definition of “gambling device*’ to exclude from its ambit certain kinds of 

machines that, for consideration, award prizes to a player on the basis of chance. 

Section 47.06(a) of the Penal Code provides: 

A person commits an offense if, with the intent to further gambling, he 

knowingly owns, manufacture, transfers, or possesses any gambling device 

that he knows is designed for gambling purposes or any equipment that he 

knows is designed as a subassembly or essential part of a gambling device. 

In 1995, the legislature amended the Penal Code’s definition of “‘gambling device” to read: 

“Gambling device” mesns any electronic, electromechanical, or 

mechanical contrivance not excluded under Psragraph (B) that for a 

consideration affords the player au opportunity to obtain snything of value, 

the award of which is de&mined solely or partially by chance, even though 

acmmpanied by some skill, whether or not the prize is automaticahy paid by 

the contrivance. The term: 

(A) includes, but is not limited to, gambling device versions of bingo, 

keno, blackjack, lottery, roulette, video poker, or similar electronic, 

electromechsnical, or mechanical games, or facsimiles thereof, that 

operate by chauce or partially so, that as a result of the play or operation 

of the game award credits or free gamea, and that record the number of 

t&e games or credits so awarded and the cancellation or removal of the 

f&e games or credits, and 

(B) doea not inchide any electronic, electromechanical, or mechsnicaJ 

contrivance designed, made, and adapted solely for bona fide amusement 

purposea if the contrivance rewards the player exclusively with noncaah 
The Honorable David Sibley - Page 2 (DM-466) 

merchandise prizes, toys, or novelties, or a representation of value 

redeemable for those items, that have a wholesale value available from 

a single play of the game or device of not more thau 10 times the amount 

charged to play the game or device once or $5, whichever is less. 

Penal Code $47.01(4). The substance of the 1995 amendment to the deiinition of gambling device 

wasinitiallyadoptedin1993.SeeActofMay31,1993,73dLeg.,RS.,ch.774,§1,1993Tex.Gen. 

Laws 3027, 3027. See genera& Attorney General Opinion DM-280 (1994) (history of 1993 

amendments). Prior to 1993, a “gambling device” was defined as 

any contrivance that for a consideration affords the player an opportunity to 

obtain anything of value, the award of which is determined by chance, even 

though accompanied by some skill, whether or not the prize is automatically 

paid by the contrivance. 

Section 47(a) of article III of the Texas Constitution provides: 

The Legislature shall pass laws prohibiting lotteries and gift enterprises 

in this State other than those authorized by Subsections (b), (d), and (e) of 

this section.’ 

You ash whether, in light of article III, section 47(a), the amended definitiorrof “gambling device” 

invalidly authorizes the operation of certain “lotteries” not contemplated by the constitution. 

We must, of course, begin with the proposition that a statute must be upheld “if a reasonable 

cmstmction can be ascabined, which will render the statute constitutional.” Ely v. State, 582 

S.W.2d 416,419 (fex. Grim. App. [panel Op.] 1979). If, however, the amended definition of 

“gambling device” authorizes the operation of slot machines, it cannot be upheld In Attorney 

General Opinion DM-302, this office considered whether the legislature was empowered, in the 

absence of a constitutional smendment, to authorize the operation of slot machines, either directly 

or by amending the definition of “‘bet” in section 47.01(l) of the Penal Code. Attorney General 

Gpiion DM-302 (1994). The opinion adopted the requestor’s chamcterization of a “slot machine” 

as a device that for consideration awards cash or other prizes solely on the basis of chance and that 

is not affkcted by any skill, judgment, or knowledge of a particular player. Id. at 11. A device that 

fits this description, the opinion concluded, is “an unlawful lottery in contravention of article III, 

section 47 of the Texas Constitution.” Id. The opinion noted that, although article III, section 47, 

‘Subsection (II) permits the 1eSislahuc to authorize bingo games conducted by a church or other nonprofit 

organization; subsection(d) does tbe same for charitable raffles; and subsection(e) permits the legislature to authorize 

a state lottery. 

p. 2619 
The Honorable David Sibley - Page 3 @M-466) 

‘is not self-enacting, and, had the legislature never enacted any implementing legislation, suit would 

not lie to compel enactment” it is also the case that 

where there is a history of penal statutes implementing the constitutional 

prohibition, repeal of one of those prohibitions is not a neutral act, and, in our 

opinion, such repeal would contravene the constitutional proscription of 

subsection (a) of section 47 of article III. 

Prior to 1993, the definition of “gambling device” contained no exception for contrivances 

that at present fit within the scope of paragraph (J3) of article 47.01(4). The pm-1993 definition is 

of long standing. Thus, there exists a ‘history of penal statutes implementing the wnstitutional 

prohibition,” and as a result, the amendment of section 47.01(4)‘s definition of “gambling device” 

in paragraph (B) to exempt tiom its proscription a limited class of contrivances, like the similar 

situation in Attorney General Opinion DM-302, “is not a neutral act.” The constitution allows no 

exception for lotteries whose prizes are small, even those that some might call de minimis. We w 

compelled to conclude that the exception from the definition of “gambling device” in section 

47.01(4)(B) of the Penal Code invalidly authorizes the operation of certain “lotteries” not 

contemplated by the constitution. 

You also ask whether chapter 47 of the Penal Code prohibits the use of machmea known as 

“‘eight liners,’ which are video versions of slot machines, and other machines that operate wholly 

or partially by chance, reward players with prizes, and are not ‘adapted solely for bona fide 

amusement purposes. “‘2 This question is prompted by your concern about the growth of the “eightliner” industry since the amended definition of “gambling device” was first adopted in 1993. You 

advise: 

This amendment essentially legalized machines that pay off in wupons 

redeemable for non-cash memhandise valued at no more than five dollars. 

In practice, these machinea have been used to permit acoumulation of credits 

so that players have obtained winnings well in excess of the statutory limit. 

However, because of the exception’s inherent ambiguity, law enforcement 

authorities have enwuntered great difficulty in succeastirl prosecution. That 

difiiculty prompted the 75th Legislature to propose an smendment that would 

have clarified the exception, thus enhancing prosecutions. Despite 

widespread support r%orn the law enforcement wmmunity, that proposal 

failed to become law? 

. . . . 

‘Letter from Senator David Sibley, Chfdr, Ecomxnic Development Committ~, Texas State Senate, to tbe 

Honorable Dan Morales, Attorney Geoeml, Office of Texas Attorney General (Jan. 4.1998). 

p. 2620 
The Honorable David Sibley - Page 4 @M-466) 

It is clear that the illegal use of “eight liners” in Texas wntinues to grow 

at a rapid pace. This growth has been fueled by a vague and potentially 

wnstitutionalIy defective amendment to the Penal Code’s gambling device 

definition.’ 

Although, as we have concluded, the 1995 exception to the definition of “gambling device” 

in paragraph (B) of section 47.01(4) is void because it wntravenes the Texas Constitution’s 

proscription of “lotteries,” the rest of the definition remains intact. The 1995 act that enacted the 

present version of article 47.01(4) wntains neither a severability clause nor a nonseverability clause.5 

Section 3 11.032(c) of the Government Code provides: 

In a statute that does not contain a provision for severability or 

nonseverability, if any provision of the statute or its application to any person 

or circumstance is held invalid, the invalidity does not a&t other provisions 

or applications of the statute that csn be given effect without the invalid 

provision or application, and to this end the provisions of the statute are 

severable. 

The present version of the defmition of “gambling device ” “can be given effect without the invalid 

provision’* simply by placing a period after “credits” and before the semicolon in paragraph (A), by 

deleting the phrase “not excluded under Paragraph (El)” in the first paragraph of article 47.01(4), and 

by severing paragraph (B). 

If the contrivances described as “eight-liners’* fit the Penal Code’s definition of “gambling 

device,” Iieed of the unwnstitutional 1995 exception in paragraph (B), their possession is 

prvscribed. In State v. Mendel, 871 S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, no writ), 

the wurt, m&wing an attack on the wnstitutionality of article 47.01(4) on grounds of vagueness, 

wnsidered a particular kind of machine that is virtually identical to the device you have described 

as an %igh-lmer.” The court said 

At the hearing on the motions to quash the indictments, the court heard 

testimony from Officer Templeton of the Houston Police Depsrtment about 

the Lucky 8 Liner vidw slot machinea possessed by appelleea. Appelleea are 

the owners of the club in which the video slot machines were found. The 

machines will accept anything from a quarter to a one hundred dollar bill. 

Depending on the amount of money that is put in the machine, it gives the 

player a set number of credits. A player wagers the number of credits he 

chooses, pushes a button, and then an electronic display depicts lines of tiuit 

and numbers, much like a traditional slot machine. After accumulating 

credits, employees of the club paid the player in cash at the rate of one dollar 

‘Id. 

‘See Act of May 27, 199574th Leg., R.S., ch. 318, 1995 Tex. Gen. Laws 2734,2734. 

p. 2621 
The Honorable David Sibley - Page 5 (DM-466) 

per four credits. The employee then touched a “knockoff switch,” which 

would reset the credits at zero. Officer Templeton testified that this “knockoff switch along with the “accounting memo@ of the machine, the number 

of credits bet on each play, and the absence of any skill involved in its play, 

tended to establish the machine’s character as a gambling device. 

Merdel, 871 S.W.2d at 907-08. 

The three elements necessary to wnstitute a prohibited “lottery” are: 1) the offering of a 

prize, 2) by chance, and 3) the giving of wnsideratLn for an opportunity to win the prize. City of 

Winkv. Gntth Amusement Co., 100 S.W.2d 695,701 (Tex. 1936); see Attorney General Gpinion 

DM-302 (1994); Letter Opinion No. 97-008 (1997) (and cases cited therein). As the wurt found in 

MenaX, an “eight-liner” functions solely on the basis of “chance” and its operation obviously 

requires the payment of consideration in order to play. Furthermore, we have been advised that, 

while most eight liners do not pay off directly in cash, coupons are redeemable for, inter ah, g$t 

cxatificatea from a variety of reputable merchants. Thus, the three elements necessary to wnstitute 

a prohibited “lottery” appear to be present in the case of “eight-liners.” We believe it likely that a 

court would tind, as did the Mendel court, that an eight-liner is a “gambling device” within the 

statutory defiuition. 

Finally, you ark whether the Texas Lottery Commission and the Texas Alcoholic Beverage 

Commission ‘possess the statutory enabling authority to pass rules permittirqthe agencies to 

suspend or revoke a license if a regulated entity owns or operatea an ‘eight-liner.“’ 

In order to sell tickets offered by the state lottery, a person must be licensed as a “sales 

agent.‘” The Lottery Commission is required, after a heating, to “suspend or revoke a license” of 

a sales agent if it Suds, in&r aliu, that the individual ‘has been convicted of a felony, aiminal fraud, 

gambling or gambling-related offense, or a misdemeanor involving moral turpitude, if leas than 10 

years has elapsed since the mrmmation of the sentence, parole, maudatory supervision, or probation 

saved for the ~ffense.‘~ Ifan “‘eight-liner” or similar machine is a “‘gambling device” under section 

47.01(4) of the Penal Code, conviction for owning or possessing such a device under section 

47.06(a) is au offense for which the Lottery Commission may suspend or revoke the license of a 

sales agent. The Lottery Commission also has rulemaking authority to consider the conduct of an 

applicsnt or licensee with respect to gambling.8 

6Gov’t Code 5 466.151. 

‘Id. 8 466.155(a)(l)(A). 

‘Id. $5 466.015, .I54 

p. 2622 
The Honorable David Sibley - Page 6 @M-466) 

Likewise, the Lottery Commission is authorized to issue licenses for “‘the conduct of bingo;‘* 

to manufacture “bingo supplies;“rO to sell, distribute, or supply “biio equipment, devices, or 

supplies for use in bingo games in this state;“” and to sell or supply “automated bingo services for 

the use of licensed authorized orga&ations.“‘2 None of these licenses may be issued to any person 

who has been convicted of a “gambling offense,“” and the Lottery Commission, after a hearing, may 

suspend or revoke any license for failure to comply with the act, “for any reason that would allow 

or require the commission to retbse to issue or renew a license of the same clas~.“‘~ Just as is the 

case for lottery sales agents, conviction for owning or possessing a “gambling device” under section 

47.06(a) of the Penal Code is an offense for which the Lottery Commission may suspend or revoke 

the license of any individual licensed to participate in various bingo activities. 

The Alcoholic Beverage Commission is specifically authorized to “prescribe and publish 

rules necessary to carry out the provisions of this wde.“r5 The commission is t%rther authorized to 

“supervise and regulate licensees and permittees and their places of business in matters affecting the 

public,” and this “authority is not limited to matters specifically mentioned in [the] [Alcoholic 

Beverage Code]. “I6 Finally, “a license or permit issued under [the] code is a purely personal 

privilege and is subject to revocation or suspension if the holder is found to have violated a provision 

of this code or a rule of the commission.“” 

The authority of the Alcoholic Beverage Commission with regard to licensees or permittees 

charged or convicted of misdemeanor gambling offenses is very extensive. An original or renewal 

application for a retail dealer’s license shall be denied if the applicant has within the past three years 

been convicted of an offense involving “‘gambling or gaming.“‘s Additionally, an original or renewal 

license shall be denied under section 61.42(a)(3) or 61.42(a)(7) and may be denied under section 

61.43(a)(l), 61.43(a)(3). or 61.43(a)(9). An original or renewal application for a permit may be 

denied under section, 1 l&(a)(l), 11.46(a)(3), 11.46(a)(6), or 11.46(a)(S). 

9v.T.C.S. art. 1794 3 13(c). 

“Id. 5 134a). 

“Id. 5 13b(a). 

‘Vd. 5 1344). 

“Id. 85 13(c)(2), (4); 13a(c), 13b(c), 134~). 

“Id. $ 16(d). 

“Alco. Bev. Code 0 5.3 1. 

‘Vd. 5 5.33. 

“Id. 5 6.01(b). 

“Id. 8 69.06(a)(4), (c)(l), (2); see also id. 0 25.06(a)(4), (c). 

p. 2623 
The Honorable David Sibley - Page 7 @M-466) 

In our opinion, the Alcoholic Beverage Commission could reasonably conclude that a person 

charged with or convicted of a misdemeanor gambling offense under the Penal Code had “wnducted 

his business in a place or manner which wsrrants the cancellation or suspension of a licenseI [or 

permit]2o based on the general welfare, health, peace, morals, safety, and sense of decency of the 

people.‘*’ Such a conclusion would then furnish sufficient grounds for a suspension for up to sixty 

days or a cancellation of the individual’s retail dealer on- or off-premises license or permit. 

Furthermore, we believe that the Alcoholic Beverage Commission is authorized to enact a rule 

prohibiting the presence of “eight-liners” in facilities licensed by the Alcoholic Beverage Commission, and it could then revoke the license or permit of an individual found, after notice and hearing, 

to have violated the rule. Both the Alcoholic Beverage Code and the enabling statntes of the Lottery 

Commission offer means for the commissions to significsntly halt the intrusion of these machines 

upon an unsuspecting public. 

191d. 5 61.71(@(17). 

=9d. $5 11.61(b)(7), .612(a). 

*‘Id. 5 61.71(a)(l7); seeoh id. $ 11.61. 

p. 2624 
The Honorable David Sibley - Page 8 (DM-466) 

SUMMARY 

The amended definition of “gambling device” in paragraph (B) of section 

47.01(4) of the Penal Code invalidly authorizes the operation of certain 

“lotteries” proscribed by article III, section 47 of the Texas Constitution. The 

Lottery Commission has statutory and mlemskiig authority to consider the 

conduct or activities of an applicant or licensee with respect to gambling. 

Additionally, the Alcoholic Beverage Commission has mlemaking and 

statutory authority to regulate permittees and licensees who have been found, 

after proper notice and a hearing, to have engaged in a gambling offense as 

defined in the Penal Code. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 2625