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 ofdistributing same?
We have re.c.&iv& your letter requesting the opinion ofthis department upon the above stated question.

Your letter reads as follows: “Please advise me whether~or not, inyour opinion, we will be authorized to seize punch boards, tip sheets, and/or slot machines from the warehouse or distributing point ofa person, or I persons, inthe business ofdistributing the aforementioned devices. “The aforementioned devices, of course, are not being used for gambling purposes in the warehouses, but are bking held tobe distributed for illegal purposes.”
We presume that you are interested inascertaining 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 ofa person, or persons, in the business of distributing same, before they are actually distributed and exhibited for illegal purposes.

Article 630 ofthe Penal Code ofTexas provides:

“If any person shall knowingly permit any gaming paraphernalia, table, or device or equipment of agaming house, of any character whatever, to remain inhis p+ession or on premises under his contr~ol or ofwhich he is owner and to be used for gaming pur,po.ses,: he shall be impii&oned injail 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 ofTexas pr,ovides: “Whenever it comes to the knowledge ofany sheriff or other peace officer, by affidavit ofa reputable citizen, or otherwise, that any provision of the preceding articles ofthis chapter is being violated, such officer shall immediately avail himself ofall lawful means to suppress such violation; andhe shall be authorized, by any s,earch warrant that is issued by virtue ofthis law, toenter any house, room or place tobe searched, using such force as may be necessary to accomplish such purpose.” Article 636, ofthe Penal Code, provides:

“It shall be the duty ofevery sheriff, or other peace officer byvirtue of thewarrant au,thorieed by this chapter to seize and take into his possession all gaming tables, devices and other equipments or paraphernalia ofgambling houses, the existence ofwhich has come to his knowledge and to immediately file with tie justtce ofthe peace, county judge, or district judge, awritten list ofproperty 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 ofthe peace, county or district judge shall note the same upon his docket and issue, or cause the clerk ofthe court to issue awritten notice to the owner or person inwhose possession the articles seized were fourid, commanding him to appear at a designated time, not earlier thapfive days from the service of s,uch notice, and show cause why such articles should not be destroyed.

. . .” Article 637 ofthe Penal Code provides:

“If upon ahearing of the matter referred to in the preceding article, thejustice ofthe peace, countyjudge 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, andwas being used for gaming pu,rposes, he shall order same tobe destroyed, but any part of same may, by order ofthe court beheld as evidence tobe used in any case until the case is finally disposed of. -Property not ofthat character or not so used shall be ordered returned to the person entitled to possession ofthe 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 ofwhich has b&enordered 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. Ifupon ahearing ofthe matter referred to in Article 636, Penal Code ofTexas (1925) thejustice ofthe 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 ofbeing used for some legal purposes, he may, inhis discretion, by order ofthe court declare the same confiscated and cause the same to be delivered to the State ofTexas, or any political subdivision thereof or to any State institution tobe kept by itfor its own use and benefits. “The officer shall show byhis return the disposition ofthe property made by him which shall be in compliance with the orders ofthe court. Acts 1907, p. 110; Acts 1935, 44th Leg., p. 490, Ch. 203, i 1.”
Inthe case ofScott v. State, 95 SW 2d, 140 (Grim. App.) Judge Lattimore, in construing Article 630 ofthe Penal Code, supra, wrote:

“Such said A.rticle 630, supra, seems aimed athim who permits gaming tables, etc., to remain onhis premises, or onpremises ofwhich he is owner, but which may not actually be in use as such gaming devices, tables, etc., we have upheld misdemeanor convictions in cases ofprosecutions under said article, charging that the accused permitted these tables, devices, etc., to remain onhis premlses. See Abraham v. State, 118 Tex. Grim. Rep. 136, 39 SW 2d42; France v. State, (Tex. Grim. App.) 39 SW 2d43. Itseems clear to us that said Article 630 would and could, have no application toany state offacts from which itappears that the paraphernalia, devices, tables, etc., mentioned or included in said article, were being made use ofat 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 ofvalue was being bet, wagered or staked.” The above case was followe,d inthe case ofGraham v. State, 125 SW 2d 562, decided by the court of criminal appeals ofTexas on January 25, 1939.

A slot machine 1sspecifically named as a gambling device in Article 619 ofthe Penal Code, and although tip sheets and punch boards are not specifically mentioned in the Penal Code, the case ofStarnes v. State, 21 Tex. 693, holds, in effect, that it is difficult to imagine any species ofa table or a bank or gaming device that would not be includedHon. Homer Garrison, Jr., Page 4 (Opinion No. O-1947)

in the clauses ofthe Code.

Whether or not the device was designed for gaming purposes is immaterial. Itis the game or character ofplay on itthat determines its status. Estes v. State, 10Tex. 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.

Ifthe machine or article is a gambling device, or equipment or paraphernalia ofany gambling house, It 1stobe destroyed. A gambling device may be one which.is made primarily and principally for gambling, such ,as aroulette wheel, and this primary and principal purpose being established, nofurther proof of its actual use is required: or itmay be adevice which is useful for service to law abiding society, inwhich 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 ofthe Constitution ofTexas provides:

“The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures and searches, andno 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 toArticle 1, Section%9, ofthe Constitution ofTexas, the Legislature enacted Article 4, Code of Criminal Procedure, the language ofwhich is identical with Article 1, Section 9, supra, andArticle 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 ofha; ‘:.ti’%n, place ofbusiness, person or personal posessions ofany 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 awarrant, but only prohibits unr-e,asonable searches and seizures. Itwas held inMoore v. Adams, 91.SW 2d 447, that the sheriff ofPotter County had a right to seize slot machines without awarrant, 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. Inthis case, the machines were operated for gaiming purposes in

### pu61ic palaces, towhich the entire public, including the sheriff and his deputies, had access,.

Under the state of facts as outlined inyour letter, the gambllngHonHomer Garrison, Jr., Page 5 (Opinion No. O-1947)

devices or paraphernalia, are ,stored in awarehouse, and not in apublic place towhich the entire publi,c, including members ofthe Department of Public Safety, have access.

Inview oftheforegoing statutes and authorities, you are respectfully advised that it is,the.opinion of this department that the Department ofPublic Safe’ty is authorized.to seize under a search war*& punch .boards. tip sheets and/or slot machines from the warehouse or distributing point ofaperson or persons inthe busine,ss of distributing same. However, members ofthe’Department ofPublic 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