DAN MORALES 

ATTORNEYGENERAL 

QTNfice of tty IZlttornep Qkneral 

&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 gift 
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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 

‘This general pmbibition now appears as s§ion (a) of article III, section 47. It rcsdr: 

(a) lltc Lcgislatmc shall pass laws pmhtbiting lcttcries anfl gift enterprtses 

in this State other than those autherircd by Sobsectioos (b), (d), and (e) of this 

section. 

ZTbc briefers acknowledge, of came, that cpxatloo of slot machines is still prohibited by 

statute, viz., as a “gambling device” onder chapter 47 of the Fkoal code, hot wntend that tk h&slatox 

may simpIy amend that slatWe to ox&de slot machinca from its ambit. 

fThc Prendergcrrl court considered a very early version of the slot machine. It con&ted of five 

colored slots-red, black, greeo, white, and yellow-into which the player could insert a nickel. If the player 

%on,“theredandblackslotspaidootadime; thegreenslotaqoarter, thewhiteslottitlycents; and 

theplIowsIotadolhr. Ofcomse,intheosualciraunstance, the player did not “win” anything. The 

COWI decimal that, even tboogh the mechioc itsclf‘kutdd be indictable as a gaming device,” there is “oo 

nrason why the keeper [of the machine, i.e., the owner of the premises io which the machine was 

&played] was not also indictable for establishing a Muy.” Pcndcgasr v. .%k. 57 SW. at 851. 

4Griffithqw~amotionpichurtheatrr:nthecitydWinlr. Onoocnightperwuk, 

denombmtcd “bank nigh&” a drawing was hold in the theater for which the prize was $35. A pamm 

becane “eligible” for the drawing by signing a register Ml open at the ticket wiodow of the theater. 

Griffithcontmdedthatanypcrsonwaspermittedtosignthemgistersimplybyaskingto&so,andlhu4 
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Honorable Senfronia Thompson 

the wnstitution. Ciiy of Wink v. 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 privilege of participating in the drawing. The court was not 

pemaded by this argument: “[The] admission charge is inseparable from the privileges enomemted 

[se&g the movie sod participating in the drawing], which were materially diEerent from the privileges of 

those who mnained ootidc of the theater holding the s+called ‘free registration mnnbers.” City of Wtnk, 

100 S.W.Zd at 699. Forthermore, it made no ditTemnce Yhat a claimant’s right to the prize was 

evideneed hy a registmtion book instead of a tick& as is usual in lotteries. The registration nmnbers 

mprcaentcd %hances’ at the prize just as effectively as wootd tickets to the drawing.” Id. (Otiginal 

wapbasis). 

sAt least one of the briefs constmes the constitotional language to prohibit 1) lotteries, 2) gift 

enterprises, and 3) “rhe sale of tickets in lotteries, giJl enterprises or other evasions im&ing the lot&y 

@zip/e. ” Undex this reading, the “other evasions” language is applicable only when tickets are sold. 

As ayWactically atlmcth es this wostrwtion might k, 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 nor into 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. Srare 494 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 the 
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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 elernenr of 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 or judgment and permeates the whole plan, a lottery is 

established.” See Adams 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, Ginsberg v. Centennial Turf Club, 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 briefs also contend that the legislature may simply redetine “lottery” to exempt 

from its porview the operation of slot machiaes. The brie&s rely on Pams v. Texm Breeders & Racing 

Ash, 80 S.W.Zd I020 (TX. Civ. App.-Galveston 1935, writ distn’d) to support their position. In that 

care, the court determioed that the legislature was coastitotionally authorized to permit belting on home 

raea. As WC have indicated, however, suprcr, pari-motoel betting on home or dog races is not entimly a 

game nf chance. TIE legislatare is not empowzred to statutorily remove from the dehitkm of %mery” a 

game which inarguably conforms to the constitutional meaning of”lottery.” 
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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! they were 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 State Lottery Act defines “lottery” as ‘lhc prccedurcs operated by the state under this 

chapter Uuough which prizes are awarded M distributed by chance among pewms who have paid, or 

mcmditiondly agreed to pay, for a chance or other opporhmity to receive a prize.” God Code $ 

466.002(3). 

sTaps of the House debate on the second and third r&dings of H.J.R 8 mntain 110 refwhatever to slot machines. 
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; the 
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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-re two proposals IO amend the wIKIinltion to allow casino gaming before the 

legishue in 1993. Both House Joint Resolution 4 and Howe Bill 105 clearly articulate amstitutiond 

pmposds to allow charity casino gaming. Neither bill uses the term “lottery” in its generic sense applied 

bytbecascLawto~rrssthe~ofallowinggamingactiviticsnotcurrcatlyincludcdinthe 

exceptions to article III, section 47. House Bill 105, in kt, includes the term lottery in a list of activities 

oxksting of pari-mumel wagering, bingo, charitable rattles, and a sports pool, all of which are 

spec&zlly excluded from the definition of casino gaming. The language proposed to be put before the 
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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. 

San Antonib 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 “TIE wwtihniod amendment authorizing castno gaming by charttable orgattizations.” Tex. 

H.J.R 4,73d Leg. (1993). Clearly it would be absurd to impute to either the legislature or the voters the 

intention to include casino gaming in the phrase “a state lot&y” as used in the cousthtional amethwnt 

panposition that pass& in 1991 when, with so little conhsion and dilliculty, it could have been prt before 

the votetx in plain and direct language, as House Joint Resohttion 4 would bavc, bad it passed the 

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 Texas 
Honorable 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