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 of your letter of May 9, 

1939. wherein jou request our opinion as to whether or not the proposed enterprise, set out in your letter, would be a pool hall and would 

be prohibited by the terms of Article 653 of the Penal Code of Texas. 

.We quotefrom. your letter as follows: 

*We have a situation as follows ‘in this city: 

“The owner of a building 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 of approximately $1.00 

each per month; A large part of the 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 of Art. 653 

of the 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 of this 

State, shall be fined not less than twenty-five nor more than 

one hundred dollars or be confined in jail not lessthan one 

‘month nor 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 ‘pool 
Hon. Sam Bain, May 16. 1939, fige 2 (O-792) 

hall,’ as used herein, includes any room, hall, building 

or part thereof, tent or enclosure of any kind similar to 

those named, or any enclosed open space; in which are 

exhiiited for hire, revenue, fees or gain of any kind, or 

for.advertising purposes of any kind, any pool or billiard 

table or stand or structure of any kind or character on 

which may be played pool or billiards, or any game similar to pool or billiards 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 of value 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 of any premises, place, room. building or part tbereof or tent, or any kind or character of enclosure similar 

to those named., or any uninclosed open space for the purpose of exhibiting any table, stand or structure of any kind 

described in this article may be enjoined at the suit of 

either the Sta$e or any citinen thereof. The Attorney Gen- 

.eral of this State, or any district er county attorney, or 

any citizen of any county in wh&ch any pool hall is maintained, operated or contemplated may, either in term time 

or vacation, apply tothe district judge of the 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 of any such pool hall. Such judge 

upon presentation of a petition for suc~h injunction shall 

issue a temporary injunction or restraining order and. if 

‘upon~final hearing thereof the fact be shown.tbat the de- 

,fendant is guilty of keeping. maintaining, or operating a 

pool hall, or of contempiating 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 of any pool 

hall in violation of any provision of this article, ,or anyone 

raiding or abetting such person may be made a party defend- 

‘ant in 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 of a 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 of the 

pool tables mentioned in your letter would constitute 
‘ 

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

‘fees or gains of any kind’ as those terms are used in 

the act. They are things of value 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 of the.tab.les., 

the up-keep of. the tables and the care,and supervision: ,. : 

of the.building or :hall, and this would defeat:the evident!. 

‘” purpose and .intention of the act. 

On March 3 1,‘1920. this Department held in.a confer’ence 

opinion, written by E. F. Smith, Assistant Attorney .General;~add,res~sed 

to A. 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 to its members to play Bool hand billiards, 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: 

“I have your.~letter .of March 29th. addressed to the 

:Attorney General, wherein you request an opinion of this 

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 of the facilities .afforded.for, playing the game 

of pool or billiards, or tom maintain and operate Poole and 

billiard tables in connection with any place of .busiuess 

where ,goods. wares or merchandise or’other~ things of 

value are sold ore given away;. or to maintain 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 .no fee is charged for playing 

the ~game and the tables are not operated in connection 

with. the sale or the .giving ~away of anything 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) 

It would be unlawful .for a, club,,to maintain and operate 

pool and billiard tables, which was organieed.for the purpose or whose principal purpose in organizing ;would Abe 

to afford its members an opportunity to play pool and billiards and which charged a fee 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 of playing 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 of pool and billiards were 

omitted from the amusement offered the members 7 Jf 

-the pool and billiard tables are merely incidental to the 

.main purpose of the,club, their removal would not seriously affect the purposes for which the club was organized. 

On’the-other hand, if the purpose of the club is, merely to 

~afford an opportun‘ity for its members. to play pool .and bil- 

.liards. the removal of the pool and billiard tables from the 

clubroom woulddiscard the purpose for which the club was 

organized. 

.* By applying this test, we are of the opin%on’that 

the prosecuting officers of the state will have no diffi- 

‘culty in determining for themselves or ~of convincing the 

,courts and juries of the -state as to whether’ or not a club 

is maintaining pool and billiard, tables in violati:on of Chapter 14. Acts of the Regular Sess~ion of the 36th Legislature, 

known as the ‘Pool.Hall Law.‘” 

In the 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 a pool hall under Artic~le 4668, supra. The defendants answered 

that they were employees and managers of tbe Tyler .Recreational Club, 

duly organized, maintained and operated as a recreational c,lub for the exclusive use ,ofthe -membns ~of x&id cfuband not to serve the general public. The evidencedisclosed thatthe alleged club~~~ocured an outfit consisting of sixpooltables, ‘one snuoker ‘table;-Darobuwling alleys, a lounging parlo,r, readingroom. .desks, chairs:-and ~etc.’ Only members of the 

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 of the.pool tables. There was no evidence 

offered to show that anything was sold on the premises., The appellate court 

used the following language: 

“We think enough-of the testimony to authorize 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 to add, 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 of the 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* . . . in which are exhibited for 

hire, revenue, fees or gains of any kind . . . any pool 

or billiard table.” 

Article 4668, supra, which defines pool halls, is a very 

broad and comprehensive statute. The Legislature in writing 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 of accomplishing the purposes desired and to prevent and cure the “pool hall evils.” 

You are therefore, respectfully advised that it is the opinion of this 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 to a person to 

take care of the 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 of Article 653, Penal Code of Texas. 

Trusting that this answers your inquiry. we are 

Very truly yours 

ATTORNEYGENEULOF TEXAS 

By /s/ Wm. J. Fanning 

W JF:AW/cm 

APPROVED: 

/s/ Gerald C. Mann 

ATTORNEYGENERALOF TEXAS 

Wm. J. Fanning 

Assistant 

Approved 

Opinion Committee 

B-y /s/ GRL 

Cbalrman