Criminal District Attorney

Beaumont, Texas Re: OpinionNo. WW-1506 Dear Sir: Subject: Marble Machines You have recently requestedan opinion of this office relative to a specialkind of marble machine. The letter of inquiry states in part:

"On April 10, 1963,we requested an opinion from your office on the legality of a certainmarble machine which allowed free balls on obtaining a certain objective.

...'I You then state that this office furnishedyou with a copy of the opinion request of Mr. Henry Wade upon which OpinionNo. ~~-1506 was based. You state:

"The letter of inquiry did seem to indicate that the subjectmarble machine was one which is similar to themarble machine which our Inquiry inferred. "However, we are In need of an opinion that sets forth and states that a marble machine which allows an additionalball is in fact Illegal, If that is your opinion. Therefore, we request thatyou clarify or modify your opinionNo. ~~-1506 to set forth a clear and definiteholding on the legality of such a machine. The opinion, as now written,makes no reference to an additionalball except In the quotation from a New York decision, and the facts describing themachine only Indicate that it is equippedwith 'fllppers.l" In ~~-1506 we held as follows:

"Under the facts presentedby you, we agree with you 'FlipperCowboy' does not fall into the category of a coin operated gambling
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Mr. W. C. Lindsey, Page 2 (C-89 )

device. In short,we can say thatwhen a player deposits hismoney in 'FlipperCowboy' he pays for and receivesone game. That is all he bargained for and all he will get. Only the length of thegame is left to be determined and that by the skill of the player. When that one game is completed the only way themachine canbe replayed Isby depositing an additionalcoin." We thenheld that "FlipperCowboy," a type of coin-operated marble machine was not a gambling device and was not prohlblted under Article 642a of the Texas Penal Code. In your letter of April 10, 1963, you described the marblemachine as follows:

"The said 'marblemachine' has a playing field set on four legs and is played by inserting a coin in themachine: 'No free games or money are returned to the player under any circumstances. 'The machine hasmechanical devices on either side of the playing field called 'flippers',which, if properly,manipulated, enable the player to hit theball in play therebypreventing theball'from falling into the 'returnhole' and allowing the player to continue the same game. "The game Is played with one ball, which is allowed to fall Into the 'returnhole' after passing through the playing field, the time required to pass through the playing field and the score accumulatedbeing dependentupon the skill of the player in using the 'flippers'to keep the ball In play and make It strike certain objects In the field of play. "AS the ball Is allowed to fall Into the 'returnhole',-itIs re-played a minimum of five times In one game. "The game may be continuedby the player and with the same ball if saidplayer is skillful enough to obtain certain scores or
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to strike certain objects In the field of play under certainknown circumstances. This continuation of the game is by the process of allowing theball to be shot additional times,up to 'amaximum of five shots in addition to the original five shots, but the score accumulatedand the whole process constitutes only one game." As we understand the operation of themachine, a minlmum of five and a maximum of ten balls constitute one game. Whether the player receives theminimum of fiveballs or more, up to themaximum of ten, Is dependent on hisskill inmanipulating the "flippers". He has, therefore, received only one game for his consideration (coin). Under these circumstanceswe affirm our holding In Opinion ~~-1.506. SUMMARY

A marble machlne,which allows additional free balls as,.certainscores are obtained, such balls being obtainedwithin the same game and upon the payment of a single consideration, Is not a'gambllng device per se and is not thereforeprohibitedunder Article 642a of the Texas Penal Code. Very trulyyours,

General ofpxas

Norman V. Suare NVS:nss

-435-Mr. W. C. Lindsey, Page 4 (C-89 )

APPROVED: OPINION COMMITTEE W. V. Geppert,Chairman F. R. Booth Howard Mays Gilbert J. Pena Howard Fender APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone,