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DAN MORALES 

ATTORNEY CENERAL 

Honorable Kenny Marchant 

Chi3ir 

Fiicial Institution Committee 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

May 2, 1995 

Opinion No. DM-344 

Re: Whether persons may play and bet 

on card games using computers with 

modems or other transmission devices 

and related questions (RQ-763) 

Dear Representative Marchant: 

You ask: 

(1) May two or more persons, each using a separate 

personal computer and modem or other data transmission device in a 

private place, play a card game with each other and bet on the 

outcome of the card game? 

(2) May a third party operating a bulletin board service 

assist persons in playing the card games located on that b&tin 

board service and charge a fee for the amount of computer time and 

processing charges used by the persons playing the game? 

(3) May a third party operating a bulletin board setvice act 

as the custodian of money placed in escrow with that bulletin board 

service by users of the service for the specific purpose of playing card 

games with other users of the service? 

You qualify your questions as follows: 

For the purpose of this request, “bet” and “private place” have the 

meanings assigned [to] those terms by Section 47.01, Penal Code, 

and the term “bulletin board service” means an on-line computer 

service that allows a person to use the person’s personal computer 

and modem to connect to the service and that offers the person the 

ability to play card games with other users of the service. In 

addition, any actions taken by any party in this request are presumed 

to be taken entirely in Texas by Texas residents. 

Section 47.01(l), Penal Code, provides, with exceptions which do not appear to 

be relevant here, that for purposes of chapter 47, “bet” “means an agreement to win or 

lose something of value solely or partially by chance.” Subsection (8) defines “private 

place” as “a place to which the public does not have access, and excludes, among other 

places, streets, highways, restaurants, taverns, nightclubs, schools, hospitals, and common 
Honorable Kenny Marchant - Page 2 (DM-344) 

areas of apartment houses, hotels, motels, office buildings, transportation facilities, and 

shops.” 

Section 47.02(a)(3) provides that “[a] person commits an offense if he. plays 

and bets for money or other thing of value at any game played with cards, dice, balls, or 

any other gambling device.” Subsection (b), however, provides that it is a defense to 

prosecution under the section that 

(1) the actor engaged in gambling in a private place; 

(2) no person received any economic benefit other than personal 

winnings; and 

(3) except for the advantage of skill or luck, the risks of losing 

and the chances of winning [the game] were the same for all 

participants. 

The activities described in your first question would appear to be within the kind of 

playing and betting described in subsection (a)(3) of section 47.02. The question is 

whether the defense to prosecution set out in subsection (b) could be effectively raised. 

We do not believe that the facts you stipulate--that the actors are acting in “private 

places,” within the Penal Code definition, and communicating bets through data 

transmission devices--resolve whether the elements of the dcr::;se are met. Even 

assuming that the risks “were the same for all participants,” if t: public generally, or a 

significant number of others, had access to the games, such access would, we believe, 

defeat a claim that the actors “engaged in gambling in a private place.” 

Whether a place is private for such purposes has been determined by the scope of 

access by others. See, e.g., Comer v. Sfule, 10 S.W. 106 (1889) (private room at inn); 

Hearh v. Smre, 276 S.W.2d 534 (Tex. Crim. App. 1955) (“We do not think that one might 

circumvent the law [pertaining to ‘gambling houses’] by the simple expediency of 

extending invitations”). See gerrernlly Howard J. Alperin, Annotation, Gambling in 

Private Residence as Prohibited or Permitted by AM-Gambling Laws, 27 A.L.R.3d 

1074 (1969). Just as a private residence would not be a “private place” for purposes of 

the defense if the public had access to gambling there, neither would it be consistent with 

the defense here if, for example, anyone who knew the proper “telephone number” and 

had a computer with a modem could join the games you refer to. See, e.g., Morgan v. 

State, 60 SW. 763, 764 (Tex. Grim. App. 1901) (p rivate residence); People v. Weithofl, 

16 N.W. 442 (Mich. 1883) (physical presence of bettors at game not required). However, 

determining whether the scope of such access here would defeat the defense would require 

fact finding. 

Also, if there is a charge attributable to the transmissions by which the players 

communicate, it would appear that other persons would also receive an economic benefit 

from the games, thus defeating the second element of the defense. See Attorney General 

p. 1830 
HonorableKenny Marchant - Page 3 (DM-344) 

Letter Opinion No. 90-88 (1990) (no defense where telephoned bets made using either a 

credit card or a 900-number). 

Where the defense did not obtain, and the actors were thus “gambling” in violation 

of section 47.02, we think that on particular facts they might also be prosecuted under 

other sections of chapter 47. See Penal Code ij§ 47.03 (‘Gambling Promotion*‘), .04 

(“Keeping a Gambling Place”), .OS (“Communicating Gambling Information”), .06 

(“Possession of Gambling Device, Equipment or Paraphernalia”). We note that on proper 

facts, courts have upheld, against double jeopardy arguments, convictions under more 

than one chapter 47 section arising from one series of events. See, e.g., Rush v. State, 576 

S.W.Zd 628 (Tex. Crim. App. 1978&i 

Also, where the activity was an offense under the Penal Code, federal law 

criminaliing “transmission of wagering information” in interstate commerce by one 

“engaged in the business of betting or wagering,” 18 U.S.C. 5 1084, could also apply. 

That the activities in question take place entirely in Texas, as you stipulate, may not in all 

cases be sufficient to keep them from having an interstate character under that statute. 

See United Stutes v. Yaquinta, 204 F. Supp. 276 (N.D.W. Va. 1962) (where part of 

telephone facilities used for call between points in state were located in another state, 

transmission was in interstate wmmerce for purposes of section 1084). Even if the 

transmissions are found to be in interstate commerce, however, determining whether the 

actors in your scenario would be “engaged in the business*’ of gamblmg would also require 

more extensive fact finding. For instance, cases under section 1084 indicate that while the 

provisions do not embrace “social betting,” a person may be “in the business” under the 

statute even if only “in business” on his own behalf and even if gambling is not his 

exclusive business. See, e.g., United States v. Buboriun, 528 F. Supp. 324 (D.K.I. 1981); 

UnitedStates v. Scavo, 593 F.2d 837 (8th Cir. 1979).* 

Your second scenario, where a third party, for a fee, operates a “bulletin board” 

service to “assist” persons in playing “games located on that bulletin board service,” in our 

opinion implicates sections 47.03, (“Gambling Promotion”), 47.04 (“Keeping a Gambling 

Place”),” 47.05, (‘Communicating Gambling Information”), and 47.06, (“Possession of 

Gambling Device, Equipment, or Paraphernalia”), if the players bet on the card games, 

*Ott the other band, we note that the facially overlapping nature of such provisions has in the 

pasl becn oac basis for sllccesdul wntentions that the provisions were ukawstitutionally vague, that is, 

that they did not suflicimtly apprise actors whether conte&ated conduct was kminalized thcmmder. 

See, e.g., Adley v. State, 718 S.W.Zd 682 flex. Ctim. App. 1985), cert. denied, 419 U.S. 815 (1986). 

Sinocissuesborllastoiheadequacyofnociagivenbyapnalpraision,aadastowhichsgccific 

provisions among somewhat overlapping ones are more appropriate for prowcotioo, depend ultimately on 

the fbcts of the psrticdar case, we do not attempt to rcaolvc these questions here. 

*If the activities rise to the level of a “gambling business” involving five or more persons, the 

federal provisions in 18 U&C. 8 1955, “Prohibition of Illegal Gambling Businesses,” could also be 

implicated. Notably, interstate activity is not expressly a neassary element to the section 1955 otfensc. 

Section 1955 is discussed in more detail b&w in nlation to ycur second and third questions. 

p. 1831 
Honorable Kenny Marchant - Page 4 (DM-344) 

The term “gambling place” is integral to the portions of sections 47.03 and 47.04 

we think are implicated here. Section 47.01(3) defines “gambling place” as “any real 

estate, building, room vehicle, or other property whatsoever, one of the uses of which 

is the making or settling of bets.” Section 47.03 makes it an offense for a person 

knowingly or intentionally to “operate[] or participate[] in the earnings of a gambling 

place.” Section 47.04 makes it an offense if he “knowingly uses or permits another 

[person] to use as a gambling place property. owned by him or under his control.” 

Section 47.04 provides the same defense to prosecution under that section as does section 

47.02, ‘Gambling,” discussed above, but since you stipulate that the operator of the 

bulletin board service receives a fee apart From “personal winnings,” the defense would 

not apply here. 

That the players may not be present at the “gambling place” here does not we think 

take these activities out of the provisions of sections 47.03 and 47.04. Notably, the court 

in Stute v. Tcrylor, 805 S.W.2d 440 (Tex. Crim. App. 1991). found that a place used for 

the “telephonic receiving of bets” was a “gambling place.” We see no distinction here 

albeit the transmission devices may also include computers and modems or other means of 

transmission than just telephones and telephone lines. The main hurdle to prosecution, on 

the facts you stipulate, would rather be proving the requisite knowledge or intent: in 

effect, proving that the service operator krew that the players were “‘betting” something of 

value on the games. Assuming such knowledge could be shown, we believe the activities 

you describe violate either or both of sections 47.03 and section 47.04. 

We note too that, assuming the requisite knowledge on the service operator’s part, 

section 47.05, “Communicating Gambling Information” making it an offense, “with the 

intent to further gambling,” to knowingly communicate “information as to bets” or to 

“maintain[] equipment for the transmission or receipt of such information,” may be 

violated as well. It is not wholly clear to us, however, from your description of the 

“bulletin board” service here as “assisting persons in playing the card games located on 

that bulletin board service,” precisely what the bulletin board devices do. Similarly, again 

assuming the requisite knowledge, and depending on how the “bulletin board” actually 

works, the activities could fall within the broad language of section 47.06, which in 

subsection (c) makes it an offense “with the intent to further gambling” to knowingly 

own. or possess gambling paraphernalia.“’ “Gambling paraphernalia” is broadly 

defined in section 47.01(6) as “any. apparatus by means of which bets. may be 

recorded or registered” or “any record, ticket, certificate, bill, slip, or other means of 

carrying on bookmaking, wagering pools, policy, or similar games.” Depending on 

the facts, we believe that charges might be brought under more than one of these sections 

for the operations you ask about. See Rush, 576 S.W.2d 628. 

%ction 47.06 sets out the same defense as section 47.04, which, again, because of the, fee 

charged by the service, would not apply here. 

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Honorable Kenny Marchant - Page S (DM-344) 

In your third scenario you add the element that the operator of the bulletin board 

service “acts as custodian of money” placed with him by service users for purposes of their 

play. Section 47.03, “Gambling Promotion,” discussed above with respect to your second 

scenario, also makes it an offense, in subsection (a)(3), if a person “for gain, becomes a 

custodian of anything of value bet or offered to be bet,” We assume here that you mean 

that the operator acts as custodian of money from which bets are to be paid, but you do 

not indicate whether he does this “for gain.” If he does, we believe that this activity 

comes within the offense described in subsection (a)(3). In any case, his acting as 

custodian, whether “for gain” or not, would certainly be a strong indication that the 

service operator knew the players were betting, thus supplying the requisite knowledge 

element with which, as we concluded above, mere operation of the bulletin board setvice 

would itself come within one or more of the chapter 47 penal provisions. 

Finally, given the illegality of these activities under state law, federal law at 18 

U.S.C. $ 1084, criminalizing “transmission of wagering information” in interstate wmmerce by one “engaged in the business of betting or wagering,” could also apply, as well 

as the provisions of 18 U.S.C. 5 1955, “Prohibition of Illegal Gambling Businesses.” As 

noted above in our discussion regarding your first question, while it is an element of the 

section 1084 offense that the transmission be “in interstate commerce,*’ even transmissions 

from one place in Texas to another might, on proper facts, be found to within the section’s 

ambit. For the section 1955 offense, five or more persons must be involved in a “gambling 

business” illegal under state law; the section does not require specific proof that the 

activities were in interstate commerce. See, e.g., United States v. Meese, 479 F.2d 41 (8th 

Cir. 1973). Both sections have generally been broadly construed. For example, neither 

requires that the actors have themselves placed bets. Cohen v. United Slates, 378 F.2d 

751 (9th Cir.) (section 1084 includes “assisting” in placing of bets), cert. denied, 389 U.S. 

897 (1967); United Sfufes v. Huwes, 529 F.2d 472 (5th Cir. 1976) (section 1955 

defendants need not themselves have gambled). 

p. 1833 
Honorable Kenny Marchant - Page 6. @M-344) 

SUMMARY 

Where two or more persons, each using a separate personal 

computer and modem or other data transmission device in a private 

place, play a card game with each other and bet on the outcome of 

the card game, the activities would be illegal under the gambling 

provisions set out in chapter 47 of the Penal Code unless there was 

no “public” access to the games, no one benefited other than by 

personal winnings, and the risk of winning or losing was the same for 

all participants. A third party’s operation of a bulletin board service, 

by means of which he knowingly assisted persons in playing and 

betting on card games located on that bulletin board service and 

charged for the services used by the persons playing the game, would 

violate one or more of the penal provisions of chapter 47, Penal 

Code. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

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