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 of Representatives 

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; 

. . . . 

p. 566 
Honorable Ron Lewis - Page 2 (DM-112) 

(3) plays and bets for 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 47.02 provisions 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,“1 and 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 “it is a defense 

to prosecution under this section that:” 

(1) the actor engaged in gambling in aprivuteplace; 

(2) no person received any economic benefit other than 

per-al winnings; and 

lwe note that a recent attorney general option anlcludcd that in order to w within the stale 

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). 

p. 567 
HonorableRonLewis - Page 3 (DM-112) 

(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 “a place 

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 

p. 568 
HonorableRonLewis - Page 4 (DM-112) 

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

NEW COLLEGIATE 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 47.92 prohibition 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 In the casino gamma at the tx.nt you ask about woutd violate the se&m 47.U2 

prohIbition on gambling “making bets.’ 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). 

p. 569 
Honorable Ron Lewis - Page 5 (DM-112) 

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 

p. 570