DAN MORALES

ATTORNEY GENERAL 

### Q?Mce of tfy !Zlttornep @eneral 

## &ate of PCexae April 20,1992

Honorable Ron Lewis chairman Natural Resources Committee Texas House ofRepresentatives P. 0. Box 2910 Austin, Texas 78768-2910 opinion No. DM-112 Re: The legality of “casino night” fundraising by nonprofit organizations (RQ-284)

Dear Representative Lewis: You ask about the legality, under the gambling laws. of a charitable fundraising event which you describe as follows:

Admission for the patrons of this event is paid for on a table by table basis. A main attraction at this event is a large room full of casino games.. . . [Platrons would present a verification of their reservation for a table and then would be.given a certain amount of chips (more of which could be purchased during the night). At the close of play, they would then enter a room where they could “purchase”prizes. These prizes would be donated by local merchants. Section 47.02(a) of the Penal Code provides in part: A person commits an offense if he: (1) makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest;

. . . .

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(3) plays and betsfor money or other thing of value at any game played with cards, dice, or balls. (Emphasis added.) “Ret,”for purposes of section 47.02, is defined as “an agreement that, dependent on chance even though accompanied by some skill, one stands to win or lose something of value.” Penal Code 5 47.01(l). In our opinion, those participating in the event you describe would be “making bets” within the section 47.01 definition of “bet” and the section 47.02provisions making it an offense to “make[] a bet.” Attorney General Opinion JM-412 (1985.),in considering the legality under sections 47.01 and 47.02 of a “casino night” sponsored by a school district, noted that
“in Texas, three basic elements comprise the offense of gambling: consideration, chance, and prize.” Attorney General Gpiion JM-412 at 2; see also Odle v. State, 139 Tex. Crim. 288, 139 S.W.2d 595 (1940), ovemrled on other grounds, Green v. State, 578 S.W.2d 411,413 n.1 (Tex. Grim App. [Panel Op.] 1979);EUis v. State,80 Tex. Crim. 208,209,189 S.W. 1074,107s (1916,no writ). The fund raising event you ask about appears to satisfy this definition: the admission fee and any other sums paid for “chips”by participants would constitute “consideration,” the “casino games” would presumably involve “chance,“1and the chips retained by participants at the close of play as well as the items donated by local merchants which the chips could be used to purchase would constitute “prizes. We note that section 47.02(b) of the Penal Code provides that “itis a defense to prosecution under this section that:”

(1) the actor engaged in gambling inaprivuteplace; (2) no person received any economic benefit other than per-al winnings; and

lwe note thatarecent attorney general option anlcludcd thatinordertow within

thestale constitution

’s rcslriclions 011

‘lotteries,’ see Tex. Coo&. art. III, 0 47, the Yhame” element of a game must prdodate owx tbc. element of skill. See Attorney General Opinion JM-1267 (1990) (and antbolitics cited lherein). Tbe opinion noted, bowever, that the dlaptw 47 Penal code proh.iitioaJ on gambling are broader than the constitutional restrictions on ‘lotteries and that they “ effectiwly prohibit thcec.types of games typically conducted in gambling casinos.’ See a&o Seamy & Patterson, huctice Cinnmem, Tu Penal Code 0 47.02 (Vernon W73).

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(3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants. (Emphasis added.)

“Private place” is dehned in section 47.01(7) of the Penal Code, in part, as “aplace to which the public does not have access. You say that the fund-raising event in question would be held at the Plan0 Civic Center. Your description indicates that the general public would have access. Accordingly, the event would not fall within the defense set out in section 47.02(b). See, e.g., Co& v. Stute, 28 Ten App. 536, 13 S.W. 859 (1890) (schoolhouse a public place even while building not being used for school purposes). We also note that in defining “bet,” section 47.01(l) of the Penal Code provides that [a]bet does not include:

. . . .(C) an offer of merchandiie, with a value not greater than S2S, made by the proprietor of a bona fide camival contest conducted at a carnival sponsored by a nonprofit religious, fraternal, school, law enforcement, youth, agricultural, or civic group, if the person to receive the merchandise from the proprietor is the person who performs the wmlvof wnmt; or (D) an offer of merchandise, with a value not greater than $25, made by the proprietor of a bona fide camival contest conducted at a canrival sponsored by a nonprofit agricultural or civic group incorporated by the State of Texas prior to 1955. (Emphasis added.) You have not characterized the event you ask about as a “camival” or the casino games to be played there as “camival contests.” Determining whether the event would qualify as a “carnival,”or the games as “carnival contests,” withhr the meaning of the section 47.01(l) exception to the definition of “bet,” would require

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consideration of facts which we do not have before us.* See WEBSTER’S NINTH NEWCOLLEGIATE

DICTIONARY

208,209 (1987) (defining “camival” as, inter alia,
“an organized program of entertainment or exhibition”). But see, Health & Safety Code ch. 824 (providing licensing requirements for “circuses, carnivals, and zoos”); id. 9 824.001(4) (defining “camival” as “a commercial variety show featuring animal acts for public entertainment”)?

Those participating in “casino games” at the descriid nonprofit charitable organization fund-raising event would violate the Penal Code section 47.92prohibition on gambling - “making bets” - unless, as a matter of fact. the “casino games” in question fall within a “carnival contests” exception to the definition of

“bet”in the Penal Code section 47.01(1)(C) and (D). Very truly yours,

DAN MORALES Attorney General of Texas

3iavin.g determined that, uakss the ‘candval contest” ucmptions to the dehition of w appIy,those partSparIng Inthe casino gammaat the tx.nt you ask about woutd violate the se&m 47.U2 prohIbition on gambling “makingbets.’ We do not think it nccwary to determine here wkthcr or to what cent the event would implicate other chapter 47 penal pwxisions. See Penal Code % 47.03 (gambling promotion), 47.04 (keephg a gambling place), 47.06- 47.07 (paascarioo of gambling de&e, equipment, or paraphemalia).

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WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General RENEAI-mm Special Assistant Attorney General MADELElNE B.JOHNSON Chair, Opinion Committee Prepared by William Walker Assistant Attorney General

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