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 at a Texas port. 

Dear Mr. Wilson: 

You have requested our opinion regarding the presence 

of slot machines aboard a cruise ship docked at a Texas port. 

You state that the operators of a certain cruise ship have 

proposed to visi~t the Port of Galveston to pick up passengers 

enroute to foreign destinations. One room of the vessel 

will contain approximately 50 slot machines. You ask if 

the owners and operators of the vessel may place themselves 

in violation of Texas law under the following alternative 

sets of facts: 

1. If the slot machines are electronically 

disabled and thus inoperable at all times 

during which the vessel is within the. 

territorial jurisdiction of the State of 

Texas; and 

2. If the room in which the slot machines 

are located is sealed off by officials of 

the United States Bureau of Customs at all 

times during which the vessel is within the 

territorial jurisdiction of the State of Texas. 

Section 47.06 of the Penal Code provides, in pertinent 

part: 

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

"Gambling 

(a) A person commits an offense if he 

knowingly owns, manufactures, 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. (Emphasis added). 

device" is defined as 

any mechancial 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. Penal Code, 5 47.01(3). 

You have suggested that a slot machine which has been electronically disabled so that none of its parts move may not 

be a "mechanical contrivance" within the meaning 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 619 and 637 of the former Penal 

Code. Five of the devices, however, had no automatic pay-off 

mechanism. The court held that, as a result, the prosecutor 

must demonstrate that these machines were "being used for 

gaming purposes at the time of seizure," since a slot machine 

"is not per se a gambling device." Hightower v. State, supra 

at 329. The design of the machine, the court said, was 

immaterial -- "it is the game or character of play on it 

that determines its status." 5 

In 1951, however, article 642a was added to the Penal 

Code. That statute included a definition of "slot machine" 

as one 

designed and manufactured or adapted . . . 

so that w= operated it rn= deliver, as 

the result of an application of an element of 

chance, any money or property . . . . 

(Emphasis added). 

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

By virtue of the "designed and manufactured" language of 

article 642a, the court held in State v One Slot Machine, -I-- 

305 S.W.Zd 386 (Tex. Civ. App. -- San Antonio 1957, no writ), 

that a slot machine might legally be confiscated even though, 

at the time of seizure, certain of its parts 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 and manufactured" language of article 642a was 

omitted from the definition of "gambling device." It was, 

however, retained in the language describing the substantive 

offense. Article 47.06 prohibits the possession of "any 

equipment that [the actor] knows is designed as a subassembly 

or essential part of a gambling device." If a person has in 

his possession a slot machine 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." (Emphasis added). 

Under the terms of One Slot Machine, supra, so long as it 

can be demonstrated 

--_ 

that a piece of equipment was so 

designed, its operating condition at the time of seizure 

is irrelevant. Thus, it is our opinion that a slot machine 

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 ask whether the owners and operators of the 

vessel would be in violation of Texas law if the room in 

which the slot machines are located is placed under the seal 

of the United States Bureau of Customs while the vessel is 

in Texas waters. In Hostetter v. Idlewild Liquor Corp., 

377 U.S. 324 (1964), the United-States Supreme Court held 

that the State of New York was not empowered "to prohibit 

absolutely the passage of liquor through its territory, 

under the supervision of the United 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, 19 U.S.C. 5 1311. The conduct which the Court 

proscribed was New York's attempt "totallv to nrevent transactions carried on under the aegis of a law passed by 

Congress in the exercise tits expxcitpower under the 

Constitution to regulate commerce with foreiqn nations." 377 

U.S. at 334. (Bmphasis added). 

P. 3933 
. . 

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 slot machines while the vessel is 

in Texas waters by the mere act of sealing off the room in 

which the machines are located. It would in fact appear that 

the transportation of the slot machines into Texas waters 

could constitute a violation of federal law: 

It shall be unlawful knowingly to transport any gambling device to any place in a 

State, the District of Columbia, or a 

possession of the United 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 a place in any 

State which has enacted a law providing for 

the exemption of such State from the provisions of this section, or to a place in any 

subdivision of a State if the State in which 

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 in which the transported 

gambling device is specifically enumerated as 

lawful in a statute of that State. 15 U.S.C. 

5 1172. 

A "gambling device" under federal law includes any slot 

machine "designed or manufactured primarily for use in 

connection with gambling . . ." as well as "any subassembly 

or essential part" thereof. 15 U.S.C. § 1171(a)(2) and (3). 

Thus, since we are aware of no statute or procedure by which 

the Bureau of Customs might seal off a room containing slot 

machines aboard a vessel while the vessel is within the 

territorial jurisdiction of the State of Texas, and since 

the transportation of such machines 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. 3934 
The Honorable Ronald L. Wilson - page 5 (H-940) 

SUMMARY 

A slot machine 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. We are aware of no statute or 

procedure by which the Bureau of Customs 

might seal off a room containing slot 

machines aboard a vessel while the 

vessel is within the territorial jurisdiction 

of the State of Texas. Furthermore, the 

transportation of such machines into 

Texas waters may constitute a separate 

violation under 15 U.S.C. S 1172. 

Very truly yours, 

rst Assistant 

c. ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

P. 3935