Hon. Homer G,arrison, Jr., Director 

Department of Public Safety 

C,amp Mabry 

Austin, Texas 

Dear Sir: 

Opinion No. 0- 1947 

Re: Is the Department of Public Safety 

authorized to seize punch boards, 

tip sheets, and/or slot machines 

from the warehouse or di.strib$ting 

point-of a person or persons in the 

business of distributing same? 

We have re.c.&iv& your letter requesting the opinion of this department 

upon the above stated question. 

Your letter reads as follows: 

“Please advise me whether~ or not, in your opinion, we will 

be authorized to seize punch boards, tip sheets, and/or slot machines from the warehouse or distributing point of a person, or I 

persons, in the business of distributing the aforementioned devices. 

“The aforementioned devices, of course, are not being used 

for gambling purposes in the warehouses, but are bking held to be 

distributed for illegal purposes.” 

We presume that you are interested in ascertaining whether or not 

punch boards, tip sheets, and/or slot machines must be exhibited for the purpose of gaming before they are subject to seizure, or may they be seized from 

the warehouse or distributing point of a person, or persons, in the business of 

distributing same, before they are actually distributed and exhibited for illegal purposes. 

Article 630 of the Penal Code of Texas provides: 

“If any person shall knowingly permit any gaming paraphernalia, table, or device or equipment of a gaming house, of 

any character whatever, to remain in his p+ession or on premises 

under his contr~ol or of which he is owner and to be used for gaming pur,po.ses,: he shall be impii&oned in jail not less than thirty 

days nor more than one year?’ 
. . 

Hon. Homer Garrison, Jr., Page 2 (Opinion No. :0;.1,947) 

Article 632 of the Penal Code of Texas pr,ovides: 

“Whenever it comes to the knowledge of any sheriff or 

other peace officer, by affidavit of a reputable citizen, or 

otherwise, that any provision of the preceding articles of this 

chapter is being violated, such officer shall immediately avail 

himself of all lawful means to suppress such violation; and he 

shall be authorized, by any s,earch warrant that is issued by 

virtue of this law, to enter any house, room or place to be 

searched, using such force as may be necessary to accomplish such purpose.” 

Article 636, of the Penal Code, provides: 

“It shall be the duty of every sheriff, or other peace 

officer by virtue of the warrant au,thorieed by this chapter 

to seize and take into his possession all gaming tables, 

devices and other equipments or paraphernalia of gambling 

houses, the existence of which has come to his knowledge 

and to immediately file with tie justtce of the peace, county 

judge, or district judge, a written list of property seiz,ed 

designating the place where same was seized, and the owner 

of same, or the person from whom possession was taken. 

Thereupon said justice of the peace, county or district judge 

shall note the same upon his docket and issue, or cause the 

clerk of the court to issue a written notice to the owner or 

person in whose possession the articles seized were fourid, 

commanding him to appear at a designated time, not earlier 

thap five days from the service of s,uch notice, and show 

cause why such articles should not be destroyed. . . .” 

Article 637 of the Penal Code provides: 

“If upon a hearing of the matter referred to in the 

preceding article, the justice of the peace, county judge or 

district judge, before whom the cans? is pending shall determlne that the property seized is a gaming table or bank or 1s 

used as equipment or paraphernalia for a gambling house, 

and was being used for gaming pu,rposes, he shall order same 

to be destroyed, but any part of same may, by order of the 

court be held as evidence to be used in any case until the case 

is finally disposed of. -Property not of that character or not 

so used shall be ordered returned to the person entitled to 

possession of the same. The officer, within not less than 

fifteen nor more than thirty days from the entry of said 

ordee shall destroy all property the destruction of which 

has b&en ordered by the court, unless the owner, lessee or 

person entitled to possession under this law, shall, before 

the destruction of said property, flle suit to’recover same. 
Hon. Homer Garrison, Jr., Page 3 (Opinion No. 0 - 1947) 

“Sec. 2. If upon a hearing of the matter referred to in 

Article 636, Penal Code of Texas (1925) the justice of the 

peace, county judge or district judge before whom the cause 

is pending shall determine that the property seized, or any 

part thereof, is not gambling paraphernalia per se, but that 

the same or any part thereof was used as equipment or 

paraphernalia for a gambling house and was being used for 

gaming purposes and that said property is capable of being 

used for some legal purposes, he may, in his discretion, 

by order of the court declare the same confiscated and cause 

the same to be delivered to the State of Texas, or any political subdivision thereof or to any State institution to be kept 

by it for its own use and benefits. 

“The officer shall show by his return the disposition 

of the property made by him which shall be in compliance 

with the orders of the court. Acts 1907, p. 110; Acts 1935, 

44th Leg., p. 490, Ch. 203, i 1.” 

In the case of Scott v. State, 95 SW 2d, 140 (Grim. App.) Judge 

Lattimore, in construing Article 630 of the Penal Code, supra, wrote: 

“Such said A.rticle 630, supra, seems aimed at him 

who permits gaming tables, etc., to remain on his premises, 

or on premises of which he is owner, but which may not 

actually be in use as such gaming devices, tables, etc., we 

have upheld misdemeanor convictions in cases of prosecutions under said article, charging that the accused permitted 

these tables, devices, etc., to remain on his premlses. See 

Abraham v. State, 118 Tex. Grim. Rep. 136, 39 SW 2d 42; 

France v. State, (Tex. Grim. App.) 39 SW 2d 43. It seems 

clear to us that said Article 630 would and could, have no 

application to any state of facts from which it appears that 

the paraphernalia, devices, tables, etc., mentioned or included in said article, were being made use of at such place 

for playing or exhibiting any game for which such devices, 

tables, etc., were usable as gambling tables and devices,, 

and upon which money or other thing of value was being bet, 

wagered or staked.” 

The above case was followe,d in the case of Graham v. State, 

125 SW 2d 562, decided by the court of criminal appeals of Texas on 

January 25, 1939. 

A slot machine 1s specifically named as a gambling device in 

Article 619 of the Penal Code, and although tip sheets and punch boards 

are not specifically mentioned in the Penal Code, the case of Starnes v. 

State, 21 Tex. 693, holds, in effect, that it is difficult to imagine any 

species of a table or a bank or gaming device that would not be included 
Hon. Homer Garrison, Jr., Page 4 (Opinion No. O-1947) 

in the clauses of the Code. 

Whether or not the device was designed for gaming purposes 

is immaterial. It is the game or character of play on it that determines 

its status. Estes v. State, 10 Tex. 300; Starnes v. State, 21 Tex. 693; 

Chappel v. State, 27 Crim. Rep. 310; Bird v. State, 148 SW 738; Mills 

v. Browning, 59 SW 2d 219. 

If the machine or article is a gambling device, or equipment 

or paraphernalia of any gambling house, It 1s to be destroyed. A gambling device may be one which.is made primarily and principally for 

gambling, such ,as a roulette wheel, and this primary and principal purpose being established, no further proof of its actual use is required: 

or it may be a device which is useful for service to law abiding society, 

in which event the article itself must be shown to be actually used in 

gambling to constitute it condemnable. Mills v. Browning, 58 SW 2d 

219. 

Article 1, Section 9 of the Constitution of Texas provides: 

“The people shall be secure in their persons, houses, 

papers and possessions from all unreasonable seizures and 

searches, and no warrant to search any place, or to sdizer~ 

any person or thing, shall issue without describing them as 

near as may be, nor without probable cause, supported by 

oath or information.“ 

For the purpose of giving effect to Article 1, Section%9, of the 

Constitution of Texas, the Legislature enacted Article 4, Code of Criminal 

Procedure, the language of which is identical with Article 1, Section 9, 

supra, and Article 4a, Code of Criminal Procedure, which reads as follows: 

“It shall be unlawful for any person or peace officer 

or State Ranger to search the private residence, actual 

place of ha; ‘:.ti’%n, place of business, person or personal 

posessions of any person, without having first obtained a 

s.earch warrant as required by law.” 

The Constitution and statutes do not prohibit every character d 

search and seizure without a warrant, but only prohibits unr-e,asonable 

searches and seizures. It was held in Moore v. Adams, 91.SW 2d 447, 

that the sheriff of Potter County had a right to seize slot machines without a warrant, so long as the sheriff acted upon probable cause, and did 

not have to commit a trespass to galn entrance to the premises from 

which the slot machines were se.ized. In this case, the machines were 

operated for gaiming purposes in pu61ic palaces, to which the entire public, including the sheriff and his deputies, had access,. 

Under the state of facts as outlined in your letter, the gambllng 
HonHomer Garrison, Jr., Page 5 (Opinion No. O-1947) 

devices or paraphernalia, are ,stored in a warehouse, and not in a public 

place to which the entire publi,c, including members of the Department 

of Public Safety, have access. 

In view of the foregoing statutes and authorities, you are 

respectfully advised that it is, the .opinion of this department that the 

Department of Public Safe’ty is authorized.to seize under a search 

war*& punch .boards. tip sheets and/or slot machines from the warehouse or distributing point of a person or persons in the busine,ss of 

distributing same. However, members of the’Department of Public 

Safety are authorized to seize slot machines, or any other gambling 

device which is a gambling device per se, at any place where the same 

may be found, when the officers are at said place by lawful means. 

Very truly yours 

ATTORNEY GENERAL .OF TEXAS 

By /s/ D. Burle Daviss 

D. Burle Davis6 

‘Assistant 

DBD:AW:ps 

APPROVED APR 25, 1940 

/so/ Gerald C. Mann 

ATTGRNEYGENERALOF TEXAS