GERALD C. MANN

,x--xx Au- 11.TEXAS *-BZNFI nF4N-L May 16, 1939

Hon. Sam Bain Cpunty Attorney Leon County Centerville, Texas Opinion No. O-792 Re: Pool halls.

Dear Sir: This Department is in rec’eipt ofyour letter of May 9, 1939. wherein jou request our opinion as towhether or not the proposed enterprise, set out inyour letter, would be a pool hall and would be prohibited by the terms ofArticle 653of the Penal Code of Texas. .We quotefrom. your letter as follows:

*We have a situation as follows ‘inthis city: “The owner ofabuilding has the same and is ‘not being used for any other purpose. He wishes to place two pool tables and a domino table in this building and form a club of,members who will pay dues ofapproximately $1.00 each per month; A large part ofthe dues wiIl;necessaiily go toa’person to take care of the tables andjanitor’ser~ vice.:,~ “There will be nothing else in same and nothing for sale. Members will pay by the month and not by the game. “Would this be prohibited by the terms ofArt. 653 ofthe Penal Code ?w

Article 653 of the Penal Code of Texas reads as follows: “Operating pool hall. Whoever shall operate or maintain a pool ball, as that term is.defined by the laws ofthis State, shall be fined not less than twenty-five nor more than one hundred dollars or be confined injail not lessthan one

‘monthnor **more** than one year. Each day of such violation shall be a separate offense.”

follows: Article 4668, Revised Civil Statutes of Texas reads as .*

“No personacting for himself ,or’others shall maintain or operate a pool ball within this State. The term ‘poolHon. Sam Bain, May 16. 1939, fige 2 (O-792)

hall,’ as used herein, includes any room, hall, building or part thereof, tent or enclosure ofany kind similar to those named, or any enclosed open space; inwhich are exhiiited for hire, revenue, fees or gain ofany kind, or for.advertising purposes ofany kind, any pool or billiard table or stand or structure ofany kind or character on which may be played pool or billiards, or any game similar to pool 

### orbilliards played with balls, cues or pins or any similar device. Any such table, stand or structure of any kind used or exhibited in connection with any place where goods, wares or merchandise or other things of value are sold or given away or wher’e or upon which any money or thing ofvalue is paid or exchanged shall be regarded as a place where is exhibited the same for hire, revenue or gain. The habitual, actual, or contemplated use ofany premises, place, room. building or part tbereof or tent, or any kind or character ofenclosure similar to those named., or any uninclosed open space for the purpose ofexhibiting any table, stand or structure ofany kind described in this article may be enjoined at the suit of either the Sta$e or any citinen thereof. The Attorney Gen- .eral ofthis State, or any district er county attorney, or any citizen of any county inwh&chany pool hall is maintained, operated or contemplated may, either in term time or vacation, apply tothe district judge ofthe district in which is located the place where such pool hall is m&ntamed. operated or contemplated, or to.any district judge in Travis County. for an injunction to prohibit the mafntenance and operation ofany such pool hall. Such judge upon presentation ofa petition for suc~hinjunction shall issue a temporary injunction or restraining order and. if

‘upon~final hearing thereof the fact be shown.tbat the de- ,fendant is guilty ofkeeping. maintaining, or operating a pool hall, or ofcontempiating such act, the court before which the,case is tried shall grant a permanent injunction against such parity as prayed for in the petition. Any person operating or contemplating the operation ofany pool hall in violation ofany provision of this article, ,oranyone raiding or abetting such person may be made a party defend-

‘antin such suit:?

On February 22. 1919. this Department held in an opinion written by Hon. John C. Wall, Assistant Attorney General of Texas, to Hon. Barton H, Royson. that a canteen ofa company of United States Ma- ,rine Corps may not operate pool tablesand charge soldiers a small fee therefor. even though the fee goes back into the canteen fund. We quote from said opinion as follows:

:‘The fees paid~by the soldiers for the use ofthe pool tables mentioned in your letter would constitute‘

Han **Sam** Bain. May 16, 1939, Page 3 (O-792)

‘fees or gains ofany kind’ as those terms are used in the act. They are things ofvalue and ‘go to the canteen fund,,which fund is used for the purchase of supplies or amusements.’ ,.

“You will readily see that to make a.different holding you would permit a person,or ~association of persons to rent a building or hall, purchase ~billiard and pool tables and operate the same for hire, provid-- ed only that the fees charged for the **use** of such pool or billiard tables were used for the payment of the rent of such building,or hall, the purchases price ofthe.tab.les., the up-keep of.the tables and the care,and supervision: ,. : ofthe.building or :hall, and this would defeat:the evident!.
‘” purpose and .intention ofthe act.

On March 31,‘1920. this Department held in.a confer’ence opinion, written by E. **F.** Smith, Assistant Attorney .General;~add,res~sed toA. T. Dribble, which held that a s~o-called club ~which charges a membership fee or annual or monthly dues, and its principal busines~s is to afford an opportunity toits members to play Bool handbilliards, was a public pool hall within the meaning of Section 1,.of.Gbapter 14,Acts of the 36th Legislature, and therefore, unlawful: We quote from said opinion as follows: “Ihave your.~letter .ofMarch 29th. addressed to the

:Attorney General, wherein you request an opinion ofthis Department with ,reference to clubs maintaining and oper - ~atfng pool and billiard tables.

.,

“In reply, you are respectfuDy advised that it is a violation of the law for anyone to maintain and operate pool and billiard tables for .hire;that is. to charge a fee

~~ for the use ofthe facilities .afforded.for, playing the game of pool or billiards, or tom maintain and operate Pooleand billiard tables in connection with any place of.busiuess where ,goods. wares or merchandise or’other~ things of value are sold oregiven away;. or tomaintain and operate pool and billiard tables for.advertising purposes.

‘A bona fide’social~or~ ,busine,ss club may maintain and ope’rate pool,and:‘billiard tables,for the use of its members..provided that.nofee is charged for playing the~game and the tables are not operated in connection with.the sale or the.giving ~away ofanything of value, or for advertising purposes.

?By bona fide club, as above used, we mean a social or business organization which maintains and operates pool and billiard tablesmerely as.an incident to its organization and not as the principal purpose ofthe organization.’

.

Hon. Sam Bain, May 16. 1939, Page 4 (O-792)

Itwould be unlawful .for a,club,,to maintain and operate pool and billiard tables, which was organieed.for the purpose orwhose principal purpose in organizing ;would Abe toafford its members an opportunity to play pool and billiards and which charged afee for membership or that charged monthly or annual dues. Such an organization would be conducting a pool hall for hire just as much so as if a fee was charged for the privilege ofplaying each game.

‘In determining whether a club is a~‘bona fide,’ club or merely an attempt to evade the law prohibiting puol halls, a good **test** is: Would the club be organized and maintained if the game ofpool and billiards were omitted from the amusement offered the members 7 Jf -thepool and billiard tables are merely incidental to the .main

### purposeofthe,club, their removal would not seriously affect the purposes for which the club was organized. On’the-other hand, if the purpose ofthe club is,merely to ~afford an opportun‘ity for its members. to play pool .andbil- .liards. the removal ofthe pool and billiard tables from the clubroom woulddiscard the purpose for which the club was organized.

.* By applying this test, we are ofthe opin%on’that the prosecuting officers ofthe state will have no diffi-

‘culty in determining for themselves or ~ofconvincing the ,courts and juries ofthe-state as towhether’ or not a club is maintaining pool and billiard, tables inviolati:on of Chapter 14.Acts ofthe Regular Sess~ion ofthe 36th Legislature, known as the ‘Pool.Hall Law.‘”

Inthe case of McCombs et al vs. State, 48 SW (2nd) 665, the state sought an injunction against h&Combs et al to enjoin them from operating apool hall under Artic~le 4668, supra. The defendants answered that they were employees and managers oftbe Tyler .Recreational Club, duly organized, maintained and operated as a recreational c,lubfor the exclusive use ,ofthe -membns ~ofx&id cfuband not to serve the general public. The evidencedisclosed thatthe alleged club~~~ocured an outfit consisting of sixpooltables, ‘onesnuoker ‘table;-Darobuwling alleys, a lounging parlo,r, readingroom. .desks, chairs:-and ~etc.’ Only members ofthe club could use the pool and ,snooker tables for which they paid membership fees. The witness, McCombs, testifying in his own behalf swore that no fee was paid directly~for the use ofthe.pool tables. There was no evidence offered to show that anything was sold onthe premises., The appellate court used the following language:

“We think enough-of the testimony toauthorize a finding that the association in question was a.sham and a subter- -fuge to evade the prohibitions ,in said Article 4668.1~.

_

Hon. Sam Bain, May 16, **1939.** Page 5 **(O-792)**

The case of Vaiden et al vs. State, 52 SW (2nd) **3i8.** expressly approves the holding in the McCombs case above. The court in the Vaiden case uses the following language:

“It is appropriate toadd, that it is our opinion, aside from the reasoning in the Countee case (44 SW 2nd **994)** that the facts in tbis case bring it squarely within the prohibition ofthe statute, where it appears from the record that appellant ‘acting’ both for ‘himself’ and ‘others’, ‘maintained’ (and) operates a ‘pool hall’, that is a ‘room*

. . .inwhich are exhibited for hire, revenue, fees or gains ofany kind

. . .any pool or billiard table.”

Article 4668, supra, which defines pool halls, is avery broad and comprehensive statute. The Legislature inwriting this statute undoubtedly took into consideration that ingenious human beings would doubtless attempt to evade this statute by sham, evasion and subterfuge, and in order to prevent this evascon, the Legislature therefore, set up the all encompassive provisions in this statute for the purpose ofaccomplishing the purposes desired and toprevent and cure the “pool hall evils.”

You are therefore, respectfully advised that it is the opinion ofthis Department that the owner of the building mentioned in your letter who proposed to place two pool tables and a domino table therein, forms a club of members who would pay dues of approximately $1.00 each per mohth and not by the game, a large part of the money going toa person to take care ofthe tables and janitor service. with nothing else in the building and nothing for sale, would be operating and maintaining a pool hall as defined by Article 4668, RevisedCivil Statutes of Texas. and would be in violation ofArticle 653, Penal Code of Texas.

Trusting that this answers your inquiry. we are Very truly yours ATTORNEYGENEULOF TEXAS By /s/ Wm. J. Fanning

WJF:AW/cm APPROVED: /s/ Gerald C. Mann ATTORNEYGENERALOF TEXAS Wm. J.Fanning Assistant Approved Opinion Committee B-y /s/ GRL Cbalrman