The Honorable Ronald L.Wilson Opinion No. H-940 Criminal District Attorney 405 County Courthouse Re: Legality of slot Galveston, Texas 77550 machines on a cruise ship calling ata Texas port.

Dear Mr. Wilson:

You have requested our opinion regarding thepresence of slotmachines aboard a cruise ship docked at a Texas port. You state that the operators of a certain cruise ship have proposed tovisi~tthe Port of Galveston topick uppassengers enroute to foreign destinations. One room of thevessel will contain approximately 50 slotmachines. You ask if the owners and operators of thevessel may place themselves inviolation of Texas law under the following alternative sets of facts:

1. If the slotmachines are electronically disabled and thus inoperable at all times during which thevessel iswithin the. territorial jurisdiction of the State of Texas; and

2. If the room inwhich the slotmachines

are located is sealed off by officials of theUnited States Bureau of Customs at all times during which thevessel iswithin the territorial jurisdiction of the State of Texas.

Section 47.06 of the Penal Code provides, inpertinent part:

P. 3931The Honorable Ronald L.Wilson -page 2 (H-940)

"Gambling (a) Aperson commits an offense ifhe

knowingly owns, manufactures, transfers, or possesses any gambling device that he knows isdesigned forgambling purposes or any equipment that he knows isdesigned as a subassembly or essential part of a gambling device. (Emphasisadded).

device" isdefined as

anymechancial contrivance that for a consideration affords theplayer an opportunity to obtain anything of value, the award ofwhich isdetermined by chance,
even though accompanied by some skill, whether
or not theprize is automatically paid by the contrivance. Penal Code, 5 47.01(3).

You have suggested that a slotmachine which has been electronically disabled so that none of itsparts move may not be a "mechanical contrivance" within themeaning of section 47.01.

Some support for this contention may be found in Hightower v. State, 156 S.W.Zd 327 (Tex.Civ. App. -- Dallas 194c writ ref'd). In that case, the District Attorney of Dallas County had sought the destruction of seven slot machines under articles 619and 637of the former Penal Code. Five of thedevices, however, had no automatic pay-off mechanism. The court held that, as a result, theprosecutor must demonstrate that thesemachines were "being used for gaming purposes at the time of seizure," since a slotmachine "isnot per se agambling device." Hightower v. State, supra at 329. The design of themachine, the court said, was immaterial -- "it is the game or character of play on it that determines its status." 5

In 1951, however, article 642awas added to the Penal Code. That statute included a definition of "slotmachine"
as one designed andmanufactured or adapted

. . .

so thatw= operated itrn= deliver, as the result of an application of an element of chance, anymoney or property

. . . . (Emphasisadded).

p. 3932The Honorable Ronald L.Wilson -page 3 (H-.940)

By virtue of the "designed andmanufactured" language of article 642a, the court held in State v One SlotMachine, -I-- 305 S.W.Zd 386 (Tex.Civ. App. -- SanAntonio 1957, nowrit), that a slotmachine might legally be confiscated even though, at the time of seizure, certain of itsparts had been disconnected and, as a result thereof, it could not at such time award free,games. See also Attorney General Opinion M773 (1971). --

When the new Penal Code became effective in 1974, the *designed andmanufactured" language of article 642awas omitted from the definition of "gambling device." Itwas, however, retained in the language describing the substantive offense. Article 47.06 prohibits the possession of "any equipment that [theactor] knows isdesigned as a subassembly
or essential part of a gambling device." If aperson has in his possession a slotmachine which has been electronically disabled, he also possesses the component parts thereof. Such component parts need only have been "designed as a subassembly
or essential part of a gambling device." (Emphasisadded). Under the terms of One Slot Machine, supra, so long as it
can be demonstrated--_ that apiece of equipment was so designed, its operating condition at the time of seizure is irrelevant. Thus, it is our opinion that a slotmachine which has been electronically disabled and rendered inoperable is not necessarily removed thereby from the scope of the offense described in section 47.06 of the Penal Code.

You also askwhether the owners and operators of the vessel would be inviolation of Texas law if the room in which the slotmachines are located isplaced under the seal of theUnited States Bureau of Customs while thevessel is inTexas waters. InHostetter v. Idlewild Liquor Corp., 377U.S. 324 (1964), the United-States Supreme Court held that the State of New York was not empowered "toprohibit absolutely thepassage of liquor through its territory, under the supervision of theUnited States Bureau of Customs acting under federal law, for delivery to customers in foreign countries." Id.at 329. The Bureau of Customs did not exercise such "supervision," however, merely under the general authority of the federal government to regulate foreign commerce, but under the specific terms of the Tariff Act of 1930, 19U.S.C. 5 1311. The conduct which the Court proscribed was New York's attempt "totallv tonrevent transactions carried on under the aegis of a lawpassed by Congress in the exercise tits expxcitpower under the Constitution to regulate commerce with foreiqn nations." 377 U.S. at 334. (Bmphasis added).

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The Honorable Ronald L.Wilson -page 4 (H-940)

By contrast, we have been cited to no authority which would permit the Bureau of Customs to obtain exclusive jurisdiction over the slotmachines while the vessel is in Texas waters by themere act of sealing off the room in which themachines are located. Itwould in fact appear that the transportation of the slotmachines into Texas waters could constitute aviolation of federal law:

It shall be unlawful knowingly to transport any gambling device toany place in a State, the District of Columbia, or a possession of theUnited States from any place outside of such State, the District of Columbia, or possession: Provided, That this section shall not apply to transportation of any gambling device to aplace in any State which has enacted a lawproviding for the exemption of such State from the provisions of this section, or to aplace inany subdivision of a State if the State inwhich such subdivision is located has enacted a law providing for the exemption of such subdivsion from the provisions of this section, nor shall this section apply to any gambling device used or designed for use at and transported to licensed gambling establishments where betting is legal under applicable State laws: Provided further, That it shall not be unlawful to transport in interstate or foreign commerce any gambling device into any State inwhich the transported gambling device is specifically enumerated as lawful in a statute of that State. 15U.S.C. 5 1172.

A "gambling device" under federal law includes any slot machine "designed ormanufactured primarily for use in connection with gambling

. . ."as well as "any subassembly
or essential part" thereof. 15U.S.C. § 1171(a)(2) and (3). Thus, since we are aware of no statute or procedure bywhich the Bureau of Customs might seal off a room containing slot machines aboard avessel while thevessel iswithin the territorial jurisdiction of the State of Texas, and since the transportation of suchmachines into Texas waters may constitute a separate violation under federal law,we need not address the question posed by your second alternative set of facts.

p. 3934The Honorable Ronald L.Wilson -page 5 (H-940)

SUMMARY

A slotmachine which has been electronically disabled and rendered inoperable isnot necessarily removed thereby from the scope of the offense described in section 47.06 of the Penal Code. We are aware of no statute or procedure bywhich the Bureau of Customs might seal off a room containing slot machines aboard avessel while the vessel iswithin the territorial jurisdiction of the State of Texas. Furthermore, the transportation of suchmachines into Texas waters may constitute a separate violation under 15U.S.C. S 1172.

Very truly yours,

rstAssistant

c. ROBERT HEATH, Chairman Opinion Committee
jwb

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