### DAN MORALES

ATTORNEYGENERAL 

## QTNfice of tty IZlttornepQkneral &ate of aexae August 23, 1994

Honorable John T. Montford Chaif Finance Committee Texas State Senate P.O. Box 12068 Austin, Texas 78711

Honorable Senfronia Thompson Chair Committee on Judicial Affairs Texas House of Representatives P. 0. Box 2910 Austin, Texas 78768-2910 Opinion No. DM-302

Re: Whether the legislature may, by statute, and in the absence of a constitutional amendment, authorize the operation of slot machines within the state of Texas; or, in the alternative, whether it may authorize the state to operate slot machines and to contract with one or more entities that will operate the slot machines on behalf of the state (RQ-642, ID# 23991)

Dear Senator Montford and Representative Thompson:

Senator Montford requests our opinion as to whether the legislature may, by statute and in the absence of a constitutional amendment, authorize the operation of slot machines within the state of Texas. If the answer to this question is “no,” Representative Thompson asks whether, under the 1991 amendment to the Texas Constitution, the legislature may authorize the slate “to operate slot machines and to contract with one or more entities that will operate the slot machines on behalf of the State.” We do not here determine whether any particular device which might be labeled a “slot machine” actually conforms to the statutory definition of “gambling device.” Rather, for purposes of this opinion, we accept Senator Montford’s description of a “slot machine” as

a machine that runs electronically or mechanically and contains slots into which the player deposits money in the form of currency, coins, tokens, or a magnetic card. on the chance of receiving some amount of money greater than that deposited. Furthermore, we add the qualification that the machine records the credits won on each play, and the credits are exchangeable for something of value. See Stare v. Menaid, 871 S.W.Zd 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.).

In order to answer Senator Montford’s question, we must determine whether a slot machine is a “lottery” within the meaning of article III, section 47 of the Texas Constitution, which requires the legislature to “pass laws prohibiting lotteries and giftHonorable John T. Montford - Page 2 @M-302)

Honorable Senfronia Thompson

enterprises.” If slot machines fall into the category of “lotteries,” the legislature may not authorize their operation without a constitutional amendment.

When the present Texas Constitution was adopted in 1876, it contained the following provision regarding “lotteries”:

The Legisiature shall pass laws prohibiting the estabtiahment of lotteries and gift enterprises in this State, as well as the sale of tickets in lotteries, giB enterprises or other evasions involving the lottery principle, established or existing in other States.’
Some of the briefs submitted to this office suggest that this provision, because it distinguished between “lotteries,” “gift enterprises,” and “other evasions involving the lottery principle,” means that the term “Jottery” should be construed, for constitutional purposes, very narrowly, and that in 1876, “lottery” could not have been intended to proscribe slot machines since that device was not invented until 1895. At most, these briefs argue, operation of a slot machine is an “evasion based on the lottety principle.” When, in 1980, the “other evasions” language was deleted from article III, section 47, these briefs contend that the colLFtihltioMI proscription against slot machines was litIed.s

As early as 1899, however, the Court of Criminal Appeals held that operation of a

“slot machine,” as described therein,3 constituted a “lottety.” prendergasr v. &are, 57 SW. 850, 851 (Tex. Crim. App. 1899). Then, in 1936, the Texas Supreme Court considered whether a “bank night” held weekly at a local thea& was a “lottety” under

‘Thisgeneral

pmbibition

nowappears

as s§ion(a)ofarticle III,section47. Itrcsdr: (a) lltc Lcgislatmc

shallpasslawspmhtbiting

lcttcriesanflgiftenterprtses in this Stateotherthan thoseautherircdby Sobsectioos (b), (d), and (e) of this section.
ZTbcbriefersacknowledge,of came, that cpxatloo of slot machines is still prohibitedby statute,viz., as a “gambling device”onderchapter

47 ofthe Fkoalcode, hot wntend thattk h&slatox maysimpIy

amendthatslatWe

toox&de slotmachinca

fromitsambit.

fThc Prendergcrrl court considereda veryearlyversionof the slot machine. It con&ted of five colored slots-red, black,greeo,white,andyellow-into which theplayer

couldinserta nickel. Ifthe player %on,“theredandblackslotspaidootadime; thegreenslotaqoarter, thewhiteslottitlycents; and theplIowsIotadolhr. Ofcomse,intheosualciraunstance, the playerdid not “win” anything. The COWI decimal that,eventbooghthe mechiocitsclf‘kutdd be indictable as a gamingdevice,”

thereis “oo nrasonwhy the keeper [of the machine, i.e., the owner of the premisesio which the machine was &played] was notalso indictable forestablishing

a Muy.” Pcndcgasr v. .%k. 57 SW. at 851. 4Griffithqw~amotionpichurtheatrr:nthecitydWinlr. Onoocnightperwuk, denombmtcd

“banknigh&”

a drawingwas hold in the theater for which the prize was $35. A pamm becane “eligible”for the drawingby signing a registerMl open at the ticketwiodow of the theater. Griffithcontmdedthatanypcrsonwaspermittedtosignthemgistersimplybyaskingto&so,andlhu4Honorable John T. Montford - Page 3 @M-302)

Honorable Senfronia Thompson

the wnstitution. Ciiy of 

### Winkv. 

### Gr#rh Amu.wnenr Co., 100 S.W.Zd 695 (Tex. 1936). In the wurae of its opinion, the court declared that article IJJ, section 47, proscribed three activities: 1) lotteries, 2) gift enterprises, and 3) other evasions involving the lottety princip1e.s Furthermore, the court clearly articulated the three elements necessary to constitute a lottery: 1) the offering of a prize, 2) by chance, and 3) the giving of consideration for an opportunity to win the prize. Of the three, the wutt declared that

“‘chance’ is the one which wnstitutes the very basis of a lottery, and without which it would not be a lottery.” C@ of 

### Wink 100 S.W.2d at 701. Although the court in 

### City of 

### Wink did not rule that “bank night” was a lottery, it did hold that “the Court of Civil Appeals had substantial grounds for the wncluaion to the effect that the ‘Bank Night’ plan of defendant in error was a lottery.” 

### Id., at 699-700. Furthermore, even if “not a lottery within the meaning of the Penal Code,” it was nevertheless “at the vety leaat a gift enterprise involving the lottery principle,” and, as such, was proscribed by the Constitution. 

### Id. at 

### 700.

For our purposes, however, it is sufficient to note that the Supreme Court had by 1936 laid out the detinitive elements which wnstitute a “Iott* in the state of Texas. Texas courts have wnsistently found that the term “lottery” includes a wide range of activities involving the distribution of something of value by chance in ex+ange for valuable wnsideration. This construction of the tetm “lottery” predates our current wnstitution. The constitution of 1845 and every subsequent constitution have included a prohibition against lotteries. The wnstitutions of 1845, 1861, 1866, and 1869 stated that “No lottery shall be authorized by this State; and the buying and selling of lottery tickets within this State is prohibited.” TEX. CONST. art. XII, $36 (1869); TFX CONST.art VII, 6 17 (1866); TEX CONST.art. VII, $ 17 (1861); TEX. CONST.art. VII, 5 17 (1845). The wnstitutional convention of 1875 expanded this language in response to activities authorized by the Legislature of 1873 to state that “The Legislature shall pass laws prohibiting the establishment of lotteries and gifi enterprises in this State, as well as the sale of tickets in lotteries, gift enterprises, or other evasions involving the lottery principle,

no coaridcration was required for the privilegeof participating in the drawing. The courtwas not pemaded by this argument: “[The] admissionchargeis inseparable from the privilegesenomemted [se&g themoviesod participating in thedrawing],

whichwerematerially

diEerent fromtheprivilegesof thosewho mnained ootidc ofthetheater holdingthes+called ‘freeregistration mnnbers.” City of Wtnk, 100 S.W.Zd at 699. Forthermore, it made no ditTemnce

Yhat a claimant’sright to the prize was evideneed

hy a registmtion

bookinsteadof a tick& as is usualin lotteries. The registration nmnbers mprcaentcd %hances’at the prizejust as effectivelyas wootd ticketsto the drawing.” Id. (Otiginal wapbasis).
sAt leastone of the briefsconstmesthe constitotional languageto prohibit1) lotteries, 2) gift enterprises,and 3) “rhesale of tickets in lotteries, giJl enterprises or other evasions im&ing the lot&y @zip/e. ” Undexthis reading,the “other evasions”languageis applicable only when ticketsare sold. As ayWactically

atlmcth es this wostrwtion mightk, it is barred by the Siqreme Coo& oneqoivocal bguage in City of Wink.Honorable John T. Montford - Page 4 @M-302)

Honorable Senfronia Thompson

established or existing in other States.” But even prior to the 1876 wnstitution, the Texas Supreme Court had found that

it makes not the slightest di&rence whether it be styled a ‘Gift Enterprise,’ ‘Book Sale,’ ‘Land Distribution,’ or ‘Art Association, each and all are lotteries when the element of chance is wtmected with, or enters into the distribution of its prizes.

. . . Courts will inquire 

### norinto the name, but the game, to ‘determine whether it is a prohibited game.’
RandZe 

### v. Stare,42 Tar. 580 (Tex. 1875) (Original emphasis). Later cases interpreted the prohibition to include bingo, raflles, sales schemes, and other giveaways, whether or not 

### they had the three elements of “prize, chance and consideration,” used by the court later to 

### charactaize a lottery. 

### See, e.g., Civ of 

### Wink, 100 S.W.Zd 695.

In 1971, the legislature amended article 654 of the Penal Code, the &mitral statute then implementing article IQ section 47, to permit certain “charitable organizations to conduct loneties for their benefit on property owned by the wnducting agency” and allowing the “sale or drawing of a prize at a fair held in this State for the be&it of a church, religious society, veteran’s organization,” or similar entity. Acts 1971,62d Leg., ch. 922. g 1, at 2823. As enacted, the amendment was intended to permit activities held under the aegis of a particular class of charitable or quasi-charitable institution, such as churches and veterans’ organizations, that were otherwise proscribed by the Penal Code. 

### In Tussey v. Sbte, 494 S.W.Zd 866, 869 (Tex. Ctim. App. 1973), the court held that the language of article III, section 47, prohibited the legislature from granting this exemption. The court found that “any effort by the Legislature to authorize, license or legalize lotteries is unwnstitutional in light of the wnstitutional provision in question.

. Further, the Legislature is likewise prohibited from indirectly doing so by way of exemption from miminal prosecution.” 

### Tussey v. Srare494 S.W.2d at 869; see also 

### City of 

### Wink, 100 S.W.Zd 695. It is clear that the term “lottery” will be broadly wnstrued by the wurts, and that any game newly sanctioned by the legislature must be care&lly scrutinized to determine whether it is a “lonery.” If it is, it cannot be lawlitlly operated without a wnstitutional amendment. Subsequent to the wutt’s decision in 

### Tussey, the legislature proposed, and the electorate approved, a series of amendments. to article III, section 47. A 1980 amendment-the present subsections (b) and (c) of article III, section 47-excepted “bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs.” S.J.R. 18, Acts 1979, 66th Leg., at 3221. Subsection (d) was added in 1989 to permit “charitable rdles” held by those entities which were already authorized to conduct bingo games. H.J.R. 32, 6 1, Acts 1989, 71st Leg., at 6427. The most recent amendment, subsection (e), permits theHonorable John T. Montford - Page 5 @M-302)

Honorable Senfronia Thompson

legislature to “authorize the State to operate lotteries and [to] authorize the State to enter into a contract with one or more legal entities that will operate lotteries on behalf of the State.” H.J.R 8, Acts 1991,72dLeg., 1st C.S., at A-2.

“Lottery” is defined in section 47.01(6) ofthe Penal Code as
any scheme or procedure whereby one or more prizes are diatriiuted by chance among persons who have paid or promised wnsideration for a chance to win anything of value, whether such scheme or procedure is called a pool, lottery, de, g& gift enterprise, sale, policy game, or some other name. 

### Atton General Opiion JM-1267 (1990) wnsidered whether a variety of “casino games,” including “slot machines,” wuld be validated by the legislature without the necessity of amending article III, section 47. The opiion “aasume[d] that two of the ~cessary three elements of a lottery would be present during the holding of the gaming activities” described in the opinion-“i.e., the payment of consideration and the awarding of a prixe”-and that the wnstitutionality of a particular game would be determined according to whether, and to what extent, it wntained the element of ckmce. Opiion JM-1267, relying on judicial decisions and Attorney General Opiion C619 (1966), declared that the characterixation of a particular game as a ‘Totte$ is dependent upon “whether the 

### dominating elernenrof the entire scheme was that of chance, or that of skill, judgment, or ingenuity.” Quoting from Sherwootf & 

### RobertsYatim~, Inc. v. Cw G. 

### Leach, 409 P.2d 160 (Wash. 1%5), Opinion C-619 stated that

“[i]f chance predominates over skill orjudgment and permeates the whole plan, a lottery is established.” 

### SeeAdams v.Antonio, 88 S.W.2d 503 (Tex. Civ. App.-Waco 1935, writ refd).

As this office stated in JM-1267, section 47 of article III does not “proscribe all forms of gambling.” Pari-mutuel betting on horse or dog races, for example, although it may wntainaome element of chance, also depends, at least in part, 

### on the bettor’s skill. 

### See Pams v. Texas Breeders & Racing Ass’n, 80 S.W.2d 1020 vex. Civ. App.- Galveston 1935, writ dism’d); 

### see also, Ginsbergv. Centennial TurfClub,Inc., 251 P.2d 

### 926 (Colo. 1952); 

### People ex rel.Luwrence 

### v.Fallon, 46 N.E. 296 (N.Y. 1897). Opinion JM-1267 did not resolve whether any of the games at issue there “involve[d] the dominating element of skill, as opposed to chance,” since resolution of that question was deemed to require findings of fact not appropriate to the opinion process. If, however, it
can be determined that the slot machine pay out is based entirely on chance rather than skill, we can say that the operation of that device constitutes a “lottery” us a mrrer of law. See Srare v. 

### Fty, 867 S.W.Zd 398 (Tex. App.-Houston [14th Dist.] 1993, writ. ref.); 

### Srcrie

v. Me&Z, 871 S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.)..Honorable John T. Montford - Page 6 @M-302)

Honorable Senfronia Thompson

Your request letter expresses your “understanding” that [wlhether the player wins or not .depends entirely on chance and is not a&cted by any skill,judgment, or knowledge of the player.

In our opinion, this is a fair charactetization of the device commonly referred to as a “slot machine.” In a very recent opinion, the Attom General of Kentucky held it to be

“immediately apparent” that slot machines, as well as such games as roulette and craps, are purely games of chance:

No one can know what the next pull on the handle, spin of the wheel,
or throw of the dice will produce. It is impossible under these games as we know them for any player, no matter how killfhl, to destroy the element of chance. They are lotteries, and in the case of slot machines, have routinely been held so. Attorney General ofKentucky, opinion No. 93-58 (1993).
Furthermore, the odds of “win&g” are the same for every play. No matter how many games a player has played and lost, his odds of winning on the next pull of the handle remain unchanged. It is clear that operation of a “slot machine*’which iimctions in the matmer described herein, is, as a matter of law, a “lottery” for purposes of section 47 of article III of the Texas Constitution, and accordingly, may not be authorized by the legislature in the absence of a wnstitutional amendment.6 Representative Thompson asks whether, if the legislature is prohibited from directly authorizing private individuals and companies to operate slot machines within the state, it may authorize the state itself to do so and to contract with one or more entities that will operate the machines on behalf of the state. Representative Thompson’s inquiry is prompted by the 1991 amendment to article III, section 47-the present subsection (e)-which authorized the state lottery:

(e) The Legislature by general law may authorize the State to operate lotteries and may authorize the State to enter into a wntract with one or more legal entities that will operate lotteries on behalf of the State.

%ome of the briefsalso contendthat the legislaturemay simply redetine “lottery” to exempt fromits porviewthe operation of slot machiaes. The brie&s relyon Pams v. Texm Breeders & Racing Ash, 80 S.W.ZdI020 (TX. Civ. App.-Galveston 1935,writ distn’d)

to support

theirposition. In that care,the courtdetermioed thatthe legislature

was coastitotionally

authorized

to permitbeltingon home
raea. As WC

haveindicated,

however, suprcr, pari-motoel

bettingon homeordog racesis not entimlya gamenfchance. TIElegislatare is notempowzred

tostatutorily

remove fromthe dehitkm of %mery” a gamewhich inarguably

conforms totheconstitutional

meaningof”lottery.”Honorable John T. Montford - Page 7 @M-302)

Honorable Senfronia Thompson

Some have argued that the State 

### Lottery Commission may authorize its lottery operator to append “slot machines” to its repertoire of games, even in the absence of Snther statutory intetvention. Indeed, it has even been suggested that some of the games currently being conducted are in fact “slot machines” in all but name.’ As we will demonstrate, such hypertechnical arguments cannot survive serious scrutiny.

In our view, the circumstances surrounding the adoption of subsection (e) make it abundantly clear that the voters who approved proposition 11 on the general election ballot of November 5, 1991, did not intend to legalize the operation of alot machines, whether by a private individual or company, by the state, or by a private individual or wmpany on behalf of the atate.
The joint resolution which placed the lottery amendment on the ballot, H.J.R. 8, Acta 1991.72 Leg., 1st C.S., at A-2. used the language which now appears as subsection (e) of article III, section 47, i.e., “[t]he legislature by general law may authorize the State to operate 

### lotteries.

. .” (Emphasis added).* However, the joint resolution read as follows:
SECTION 2. This proposed wnstitutional amendment shall be



### submitted

to the voters at an election to be held on November 5, 1991. The ballot shall be printed to provide for voting for or against the proposition: ‘The wnstitutional amendment authorizing a stnfe lottery. ’
Zu! (emphasis added). We believe it is self-evident that voters presumed from the ballot language tha! theywere voting for or against the wmmon perception of a “state lottery,”
as denoted by the clear language of the ballot proposition, rather than a broad spectrum of games which embody the “lottery principle,” as articulated by Cify of 

### Wink, Tussey, and
numerous other judicial decisions. This view is amply supported by extrinsic evidence from contemporary newspaper accounts.
Fist, every newspaper article and editorial to which we have been directed refers to “a state lottery,” “a lottery,” or “a state-nm lottery.” 

### See, e.g.. Austin AmericanSrccresmun,

November 1, 1991, November 3, 1991, November 6, 1991. In addition, the articles make frequent reference to other governmental bodies which have previously

‘The StateLotteryAct defines“lottery”as ‘lhc prccedurcs operatedby the state under this chapter Uuough which prizesare awarded M distributed

by chanceamongpewms who havepaid, or mcmditiondly agreedto pay, for a chance or otheropporhmity to receivea prize.” God Code $ 466.002(3). sTaps of the Housedebateon the secondand third r&dingsof H.J.R 8 mntain 110refwhatever to slotmachines.Honorable John T. Montford - Page 8 @M-302)

Honorable Senfronia Thompson

adopted “lotteries,” e.g., Washington D.C., and New York State, neither of which permit government-operated slot machines. 

### LklhsMxning News,November 1,199l. Revenue estimates mentioned in newspaper accounts are based on the experience of other states which have conventional lotteries involving the purchase of lottery tickets and drawings for winning numbers. 

### Id

Some accounts also refer to the proposed state lottery as a %umbers game.” 

### Hauston Chrtmicle,November 4, 199 1;Dallas Movning News, November 3, 1991. The term “numbers game” has been authoritatiwly de8crlbed as United States alang for “an illegal form of gambling in which bets are taken on the occtmnce of numbers in a 

### lottery
or in the ilnancial whtmns of a newspaper.” Oxford English Dictionary, 2d ed., 1989, v. 10, at 590. The OELI reference notes the use of the term as early as 1897 and as recently
as 1975. We have found no evidence that the term “numbers game” has ever been used to refer to a “slot machine.” Furthermore, some wntemporary newspaper accounts make the point that the adoption of the lottery amendment will permit more than one form of

“game,” begimhg with “scratch-off lottery tickets,” and progressing to %e big-money, wmputerdriven lotto games. , .” 

### DailasMoming News, Nove-mber 5, 1991; see aLso, 

### Austin Americun-Sraresman, November 6, 1991. We believe it is significant that mxre of the articles cited make any reference to “slot machinea.”

Them are well-established principles of wnstitutional construction that apply in answering Representative Thompson’s question. It must be determined whether the wnstitutional language is “plain and definite” and thus not subject to Snther interpretation. It is clear, as stated above, that the language voted upon by the electorate, that is, “The wnstitutional amendment authorizing a s?&e 

### lorrery, ” is plain and definite. The wnstitutional amendment as passed by the voters does not include slot machines. Some have suggested, however, that the term “lotteries” as wntained in subsection (e) should be interpreted as broadly as the wurts have interpreted the same term in subsection (a). Assuming for the sake of argument that further interpretation is necessary, then we may apply principles of constitutional construction established by our courts in our consideration of the term, the first and most important of which is to give intent to the voters who adopted it. Based on the extrinsic evidence cited above, we do not believe the intent of the voters in approving the proposition, “The constitutional amendment authorizing a 

### state lorre~, ” (H.J.R. 8, 

### supra, emphasis added) was to authorize slot machines.
The limdamental rule for the government of wutts in the

interpretation or construction of a Constitution is to give effect to the intent of the people who adopted it. The meaning of a Constitution is &ted when it is adopted, and it is not different at any subsequent time when a court haa occasion to pass upon it. Where its terms are plain and de&rite, that which the words declare is the meaning of the instrument. In such cases there is no room for construction; theHonorable John T. Montford - Page 9 @M-302)

Honorable Senfronia Thompson

words of the instrument lie before the court already molded to their use, and its province extends no further than the enforcement of the htnguage as written.


### Cm v.Robinson, 150 S.W. 1149,llSl (Tex. 1912) (citations omitted).


### In Son Antonio Independenr School Dist. v. State, 173 S.W. 525 (Tex. Civ. App.-San Antonio 1915), the court declared:

[A] state Constitution should not receive a technical construction like
a statute, but that rule of inkrpretation should be followed which carries out the apparent intention of the people who enacted it.

To construe the term “lotteries” in subsection (e) to include slot machines, would require applying a technical construction to the word “lotteries” derived from the case law which was not before the voters in 1991. Nor does the language placed before the voters suggest, on its face, such a construction. “mhose who are called upon tp construe the [c]onstitution are not authorized to thwart the will of the people by reading into the [c]onstituGon language not contained therein.” Cramer 

### v. Shqpard, 167 S.W.2d 147, 154 (Tex. 1945). “It does not follow, either logically or grammatically, that, because a word is found in one sense in one connection in a [clonstitution, therefore, the same sense is to be adapted in every other connection in which it occurs. Story on Constitution, 

### $454. Koy 

### v. Schneider, 221 S.W. 880. 914 (Tex. 1950). Far less should the construction of a word approved by voters separated in time by more than a century be construed without reference to the context in which it was used and the intention it expressed.
Rather, we should construe the language of the exception in light of our contempory situation, by limiting the meaning of the term “lottery” as approved by the voters in 1991 to its plain meaning. To do otherwise,~ is to allow the exception to swallow the rule. We decline to give the language of subsection (e) so unreasonable a construction when a more sensible one suggests itself, especially when the more sensible interpretation gives effect to the proposition actually presented to the voters. If the proposition passed by the legislature and presented to the voters had been intended and understood to authorize state-operated casinos, it would have been a simple matter for the language to rekct that intention.y

vberc wr-retwo proposalsIOamend the wIKIinltionto allow casino gaming before the legishue in 1993. BothHouseJointResolution 4 andHowe Bill 105clearlyarticulate amstitutiond pmposds toallowcharity casinogaming. Neither

bill usesthe term“lottery” in its genericsenseapplied bytbecascLawto~rrssthe~ofallowinggamingactiviticsnotcurrcatlyincludcdinthe exceptions

to article III,section47. HouseBill 105,in kt, includesthetermlottery in a list of activities oxksting of pari-mumelwagering, bingo, charitablerattles, and a sports pool, all of which are 

### spec&zlly excluded fromthe definitionof casino gaming. The languageproposed to be putbeforetheHonorable John T. Montford - Page 10 @M-302)

Honorable Senfronia Thompson

However, again for the purpose of argument, another principle of constitutional construction that may be applied to the construction of the word “lotteries” in subsection (e) is the rule of ejus&tt 

### generis, which result in the same above mentioned conclusion.

where general words follow an enumeration of persons or things by words of a particular and speci6c meaning, such general words
are not to be construed in their widest extent, but are to be held BS applying only to persons or things of thesame kind or class as those specifically mentioned.


### SanAntonib LSD. v. Stute, 173 S.W. at 527. Simply put, the term “lotteries” is the third of three specific exceptions to the general prohibition against “lotteries and giiI enterprises.” Therefore, the term “lotteries” in subsection (e) may not be given its widest meaning but must be construed as belonging to the same “class” or category aa charitable biio and charitable rat&.. Considered as the third in a series of narrowly circumscribed activities, the term “state-operated lotteries” would have to be understood to be a specific activity, and not to mean the entire class of activities to which bingo and raflles also belOt@. To read the amendment otherwise would lead to an absurd result.

“[C]onstitutional and statutory provisions will nor be so continted or interpreted as to lead to absurd conclusions

. if any other conclusion or intetpre-tation can reasonably be indulged in.” Cramer v. 

### Sheppard, 167 S.W.2d 147, 155 (Tex. 1943).

The term “slot machine,” with its associated images of Las Vegas-style casinos, evokes intense emotion in many individuals who look upon a “state lottery” as a harmless,
even benigu, method of raising state revenue, one which is qualitatively different from the concept of “slot machine.” No evidence has been presetned that any portion of the electorate believed that, in approving the amendment for a “state lottery,” it was thereby sanctioning slot machines. And as indicated, 

### mpru, a great deal of evidence suggests that the voters who adopted the lottery amendment inmnded thereby to authorize only the traditional form of “state lottery.” We cont5htde, therefore, that subsection (e) of article III, section 47, does not empower the legislature to permit the state itself to operate slot machines, nor does it authorize the legislature to permit the state to contract with one or more entities that will operate the machines on the state’s behalf Representative Thompson also asks whether the legislature may permh private individuals or entities to operate slot machines “on a riverboat or dockside casino” merely

wters was“TIEwwtihniod amendment authorizing

castnogaming

by charttable

orgattizations.”Tex. H.J.R 4,73d Leg. (1993). Clearly it wouldbe absurd

to impute

to eitherthe legislature

orthevotersthe intentionto includecasinogamingin thephrase “astatelot&y” as usedin the cousthtional amethwnt panposition

thatpass& in 1991when,with so littleconhsion anddilliculty,it couldhavebeenprt before the votetx in plain and direct language,as HouseJoint Resohttion4 wouldbavc, bad it passedthe kgiskture.Honorable John T. Montford - Page 11 @M-302)

Honorable Senfronia Thompson

by amending the definition of “bet” in section 47.01(l) of the Penal Code. As we have noted, the legislature may not, in light of the constitutional prohibition against “lotteries,” validate slot machines simply by redefining the term “‘lottery” to exclude slot machines from its purview. In our opinion, this principle applies equally to the definition of “bet.” Article III, section 47, directs the legislature to “paas laws prohibiting the establishment of lottelies.” Clearly, this wnstitutional provision is not self-enact& and had the legislature never enacted any implementing legislation, suit would not tie to compel enactment. However, where there is a history of penal statutes implementing the constitutional prohibition, repeal of one of those prohibitions is not a neutral act, and, in
our opinion, such repeal would contravene the wnstitutional proscription of subsection (a) of section 47 of article III. We conclude, therefore, that the legislature may not legalize the operation of slot machines by private entities merely by amending the definition of

“bet” in section 47.01(l) of the Penal Code.

SUMMARY

A “slot machine,” as that term is wmmoniy understood, is a device which awards cash or other prizes solely on the basis of chance, and is not a&cted by any skill,judgment, or knowledge of a particular player. As such it wnstitutes an unlawIid lottery in contravention of article III, section 47 of the Texas Constitution. Operation of “slot machines” may not be authorized by the legislature in the absence of a wnstitutional amendment. Furthermore, subsection (e) of article III, section 47, does not authorize the legislature either to pennit operation of slot machines 

### by the state, or to permit the state to contract with one or more en#es to operate slot machines on behay of 

### the state. The legislature may not legalize the operation of slot machines by private entities merely by amending the definition of ‘bet” in section 47.01(l) of the Penal Code.

DAN MORALES Anomey General of TexasHonorable John T. Montford - Page 12 @M-302)

Honorable Senftonia Thompson

JORGE VEGA Fkst As&ant Attorney General

DREW T. DURHAM Deputy Attome-y General for Criminal Justice

RENEAHICKS State Solicitor

JAVIER AGUILAR Special fktsistant Attorney General

SARAH J. SHIRLEY Chair, Opinion 

### Committee
Prepared by Rick Gilpin Assistant Attorney General