Honorable Robert R. Barton~ 

District Attorney 

Opinion No. M-773 

Second 38th Judicial District Re: Whether a vending 

Kerrvllle, Texas 78028 machine, converted 

from a slot machine, 

which returns an 

ldentlcal souvenir 

coin with each play 

without application 

of an element of 

chance, violates the 

provisions of Article 

642a, Vernon's Penal 

Dear Mr. Barton: Code. 

In your recent letter you requested our opinion as to 

whether a slot machine from which the chance or gaming feature 

has been eliminated and which has been "converted" Into a 

souvenir vending machine so as to resemble a slot machine 

violates the provisions of Article 642a, Vernon's Penal Code. 

You state that the machine In question Is described, in 

part, by the United States Patent Office as an Invention 

comprehending the adaptation or modification of a gaming 

device, often being referred to as a slot machine, with which 

the player receives a chance of winning a return of several 

minted or specie coins upon Inserting the required coin into 

the slot and the pulling of a lever which activates coaxial 

rotary wheels adapted to exhibit a pay-off combination of 

lndicla appearing on the wheels. That the adaptation or 

modification of the slot machine comprehended by the Patent 

on the machine In question is the ellminatlon of the gambling 

or game of chance feature of the conventional slot machine, 

so that the player receives the same return with each play, 

I.e., the machine returns an Identical souvenir-type coin 

every time a coin Is Inserted therein and the rotary wheels 

activated by the pulling of the lever. It Is further described 

asbelng a coin vending machine similar In appearance and 

operation to a so-called slot machine and designed to permit 

Its efficient and simple adaptation and construction from a 

conventional slot machine. 

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Hon. Robert R. Barton, Page 2 (M-773) 

Article 642a, Vernon's Penal Code, provides In relevant 

part as follows: 

"Section 1. The term 'slot machine,' as used In 

this act, means: 

(a) Any so-called 'slot machine' or any other 

machine or mechanical device, by whatsoever name 

known, an essential part of which is a drum or 

reel with Insignia thereon, and 

(1) which when operated may deliver, as the result 

of the application of an element of chance, any 

money, or property or other valuable things, or 

(2) by the operation of which a person may be 

entitled to receive, as the result of the application 

of an element of chance, any money or property or other 

valuable thing; or 

(b) Any machine or mechanical device deslgned 

and manufactured or adapted to operate by means 

of the Insertion of a coin, token, or other object 

and designed, manufactured or adapted so that when 

operated It may deliver, as the result of an 

application of an element of chance, any money, or 

property; or 

(c) Any subassembly or essential part ~lntended todmm~~ 

be used in connection with such machine or mechanical 

device." 

"Section 2. Whoever shall manufacture, own, store, 

keep, sell, rent, lease, let on shares, lend or give 

away, transport or possess a slot machine, as defined 

In Section 1, shall be guilty of a felony and upon 

conviction thereof shall be confined in the State 

penltentlar 

than four ( % 

not less than two (2) years nor more 

) years." 

Section 1 of Article 642a quoted above contains three 

definitions of a "slot machineW as proscribed by the Act. 

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Hon. Robert R. Barton, Page 3 (M-773) 

Subsection (a) defines a machine with drums or reels with 

Insignia thereon which may deliver "as the result of the 

application of an element of chance", money or other things of 

value, snd a machine which may entitle (as opposed to deliver 

to) the operating player to money or a thing of value "as a 

result of the application of an element of chance." It seems 

clear that since the element of chance has been eliminated 

deliberately In the machine under consideration that the 

machine now does not come within the terms of subsection (a). 

Subsection (b) proscribes a machine or mechanical device 

operated by a coin and "designed, manufactured or adapted so 

that when operated it may deliver, as the result of an 

application of an element of chance, any money or property". 

(Emphasis added.) 

Subsection (c) extends the proscription of the statute 

to any subassembly or essential part Intended to be used In 

connection with any machine or mechanical device proscribed 

by said Subsection (b). 

We believe that the case of State v. One Slot Machine, 

305 S. W. 2d 386 (Tex. Clv. App. 1957, no writ), which you 

cite In your brief accompanying your opinion request, Is directly 

In point on the question presented. Therein, the Court held 

that a marble table was within the prohibition of Article 642a 

even though the mechanism delivering free games through an 

element of chance was disconnected so that free games could 

not be given. The Court reasoned the marble table was designed 

and manufactured so as to give free games by operation of 

chance. Several federal cases were cited in the opinion In 

support of the Court's holding, among them being United States 

v. 19 Automatic Pay-Off Pin-Ball Machines, D.C., 113 F. Supp. 

230, holding the design and manufacture of the machine to be 

controlling rather than the actual use or condition of the 

machine at the time of the seizure. 

In the device YOU describe and under the facts you present, 

which-we m&t assum; are true, it seems apparent that thk 

machine was also originally designed and manufactured or 

adaoted to ooerate by means of the lnsertlon of a coin, token 

or &her object and beslgned, manufactured or adapted SO that 

when operated It may deliver, as the result of an application 

of an element of chance, money or property. 

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. . 

Hon. Robert R. Barton, Page 4 (M-773) 

Furthermore, it seems apparent that the vending machine 

In question is constituted In the main by an essential part of 

the original slot machine prescribed by said Article 642, 

Vernon's Penal Code, and thus comes within the purview of 

Subsections (b) and (c) of the Article, 

Article 642a contains almost the Identical language found 

in Section 1171, Title 15, U.S.C.A., forbidding transportation 

In Interstate commerce of gambling devices. The federal 

courts, In construing the statute , have uniformly held that 

the design and manufacture of the machine Is controlling rather 

than the actual use or condition of the machine at the time of 

the seizure. U. S. v. 24 Digger Merchandising Machines, 202 F. 

2d 647 (8 th Clr. 1958, cert. den. 345 U.S. 998); U. S. v. 19 

Automatic Pay-Off Pin-Ball Machines, 113 F. Sup, 230 (W.D. La. 

1953); U. S. v. Ansanl, 138 F. Supp. 451, 454 (at p. 458) 

(N.D. Ill. 1955, aff. 240 F. 2d 216, 221; cert. den.358 U.S. 

936; reh. den. 353 U.S. 978). 

It seems that the gravamen of the offense which Article 

642a was designed to eliminate is the use of any machine, in 

whole or In part, that originally came into being with the 

functions of a slot machine as defined by statute, regardless 

of how such machine may thereafter be altered. Therefore, It 

Is to be understood that we are not passing upon the legality 

of any such vending machine with the functions of the one In 

question but which was fabricated wholly from new material which 

had never been a part of any machine designed and manufactured 

or adapted to operate by means of the insertion of a coin, 

token or other object, and which was designed, manufactured 

or adapted so that when operated It may deliver as a result 

of an application of an element of chance, money or property. 

We are in agreement with your conclusion that the machine, 

having been originally designed and manufactured to operate by 

means of the Insertion of a coin to the end that when operated 

it may deliver as the result of the application of an element 

of chance, money, or property, Is a slot machine within the 

intent and meaning of Article 642a, irrespective of its current 

condition or use. After the removal of the gambling device 

from the machine, the remaining $ortlon thereof would constitute 

"subassembly or essential part of a slot machine as defined 

ind proscribed In Section 1 (c) of Article 642a. 

-3768- 
Hon. Robert R. Barton, Page 5 (M-773) 

SUMMARY 

A vending machine of souvenir type coins, converted 

from a slot machine from which the chance or gaming 

mechanism has been removed and constructed so as to 

resemble a slot machine, operated by the Insertion of 

a specie coin and by the pulling of a lever, comes 

wittiihe proscription of Article 642a, Vernon's Penal 

Code, since it was originally designed and manufactured 

to deliver, when operated, a thing of value through an 

element of chance, money, or property. 

very trulyA 

Prepared by R. L. Lattimore 

Assistant Attorney General 

APPRWD: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Mel COrley 

Steve Hollahan 

James Quick 

Wardlow Lane 

Meade F. Griffin 

Staff Legal Assistant 

Alfred Walker 

Executive Assistant 

Nola White 

First Assistant 

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