JIM MATTOX Attorney Getma

supmme cowl suihiing **P. 0.**  **Box 12949**  **Atmtln. TX.**  **797ll- 2548**  **51214752991 Telex**  **Slow74.1297 1-r**  **512/4750289**

**4924 Albmte**  **Ave. Stdtb** **10 ElP4SO.T%**  **- 91615939484** 

**Uoo N.**  **Tenlh, Sulto**  **S MeAllenn.** 

**lx. 7s5o1-1(185**  **51-7**

**2ooMalnPleza,sune400 San**  **Anlonlo, lx**  **7aw-2797 612@29.4191**  : ! 

# The Attorney General of Texas

October 22, 1985

Honorable

Oscar Hauey chsirmeu Committee

on Jurisprudence Texas State Senate P. 0. Box 12068 Amstin.Texas 78711 Opiuiou R0.~'&368
Re: Whether a ticket-vending computer terminal which merely dispenaes.tickets

is a "gambling device"'under chapter 47 of the Penal Code, and relatedquestions

D& SAator ibusy:
Pea ask whethw the PAT-2000, a tickat-veading

computerterminal is a "gadlius dev!r:e" uader sections

47.01(3)and 47.06 of.the Texas Peuslr code. Pou.also ask whether subsections.(a):.&.(b) of 47.06, whickSet forth'thr! elements

of~the 'crime

of possession-of

a "gsmbliug device,"

are unccau~titutionally vague. ;.i;(' '. Sectlon'47.06

provides,

in part:

. y. ~'(a):

1~' persou cumlts au offen.se'~~.if he kuowiugl~r

~.owus, mauufactures;~ ttaasfers;~ or poasesseu any gambling de+ice that he .knWs is designed for gambl&ngpurposes or snp'equip&at that.~ he knows is designed as a subassemblyor esseatia:t

part of a gambling device. (b) A person comlts an offense if. with the intent 1.0 further gsmbling, he knowingly. owns, marmfaCtw:es.

transfers

coumerc%all~,

or p?asesses any altered gambling equipment 'that' he knows is designed for gambling purposes ore any equipment that he knows is daslgaed as a subassemblyor eseeutisl

part of such device. Section47.01(9)

provides: 'GembLLng

device'means,

any mechanicalctitriVance that for a consideration affords the player an opportunity

to obtain~aaytbing of value. %he award OF which is determined by chance, even though r.ccompanied by some skill. whether or not the prim is' automaticallypaid 'by the ~'contrivance.

p. 1689Howrable Oscar Mausy - Page 2 (~'~-368)

Application of these provfsioua depeuds upon the physical characteristics

of the prtuticular object or device ia question. See Attorney General Opiafaas MI-168 (1980); E-1153 (1978); H-940 v77). Syatech

PAT-2000

computer

tennluals

are kucwu as "transaction processing equipment." Tt.e technical information submitted to us shows that they record transaction Information

and distribute

tickets. The PAT-2000 is capableof dispeusing a wide range of products, such as airline tickets,euterta:iumeut tickets,and money orders. It is similarin function to the automatic

tellermachines

which are mu in use across the state. Neu,ertheless, many of the PAT-2000 termiuals which are.

presentlyproduced in Texas are manufactured to produce ticketswhich are used in the New York State Lottery. Because the PAT-2000terminalcontains uo data base for lottery tickets, however, the ticketscsnnot actually be dispensed

until it is connected to the main computer

in New York. The statutory defiultiw of "gambling device" requires, among other things,proof that the award of a th%ug of value by the device be "determined

by chance, even though accompanied by some skill." Peual Code 147.01(3); AttorneyGeneral Opiufous ~~-168 (1980);

E-1153, (1978). Thus. even if ths PAT-2000wasdesigned specifically for a purpose, such as a lottery,, which would copstltuteau offense iu Texae. the offensesdescribed in subsectious (a) aud (b) of sectlou 47.06 require

proof that the machlue in questionis itselfa "gambling dcvicee or subassembly of a "gamblingdevice"withiu the mesuiag of eection

47*01(3). See Attomey GeneralOpinion MW-168 (1980). - The foregoing

descrlptioa

of the PAT-2000 demoustrates that its sole fuactloais to dispenee~tickats. Ooze the temfual is connected with the rain computer.fu New York,~ .the tickets dispensed by the PAT-2000will have state lottery numbers ou them. The element of chauce,

however, is added :ln au eatlrely separate processand is uot au asseutlal

element-of

the product at issue. The elementof chance occurs %u the lotteig drtariag. ticket. not in the transfer of a lottery

Althoughthe ac=i :saleore possession

of lotteryticketsin Texas is au offeuse. see Paaal Code 4547.03(a)(S), 47.07(a).

we deal here cmly tith the Gov question of whether the PAT-2000 ‘is a "gsmblbg device"

per se. Cousequeutly.

based 01, .theinformation about the PAT-2000 submitted in couuectiou with :rour

opinion request,

we concludethat the .esseatial

element of chaacc:

is not present in the PAT-2000termfual. We uote that'although the elameutof chancemay be temporarily removed by "disabliug"a device, this will "gambling

device." uot prevent it from being a is not, however, See Attmney General Opinion E-940 (1977). This

re&t to the case at hand because the PAT-2000 contains

PO elementof chance aud~need uot be "disabled."
We do.uotbelieve that ,the legislature

intended

to include

within "gaubliug device," tickets. a termlaal which IS capable only of dispensing

The legislature

yintended

section47.01(3)to reach devices

p. 1690.. Douorable Oscar Mausy - Page 3 (JM-368)

such as slot pachiuesaud roulette vheels. See Practice Comeutary to section 47.01 (suggest* that a "sachauical~ontrivauce" may also be required

by the deff.nitf.on),
In light of this couclusion, ve do not reach your secondquestion of whether the void-for-vzgueness doctrine prevents applicationof section 47.01(3)aud subsec:tious (a) and (b) of section 47.06 to the PAY-2000terminal.
SUMMARY

A "gambling device," as defined in section 47.01(3) in coujrmctlon with subsections (a) aud (b) of section 4,7.06~, does not apply to the Syntech PAY-ZOOO,, a ticket-vending terminaluhlch awrely dispensestickets. TFz device lacks the eleawxtt of chance essential to a "gambling

device"

uuder section47.01(3).

JIM WATTOX **Attorney General**  of Texas
**TCMGNNEN** First Assistant **Attorney** General
DAVID B. XICDAXDS Executive

Assistant

Attonwy General
RCBXXYCSAY Special

Assistant

Attomey General
RICX GILPIN Chairman,

OpinionCosdttec: Prepared

by Jenniferluggs **Assistant** Attorney General
APPROVED: OP7.DIONCOMMITl'gE
Rick Gilpin.Chairman Coliu Carl Susan Garrison Tony Guillory Jim Moelliuger Jennifer

Xiggs Nancy Sutton SarehWoelk

p. 1691