HonorableRobert R. Barton~

District Attorney OpinionNo. M-773
Second 38th JudicialDistrict 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 eliminatedand which has been "converted"Into a souvenirvendingmachine so as to resemble a slot machine violates the provisionsof 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 adaptationor modificationof 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 combinationof lndicla appearingon the wheels. That the adaptationor modificationof the slot machine comprehended by the Patent on the machine In question is the ellminatlonof the gambling
or game of chance feature of the conventionalslot machine, so that the player receives the same return with each play, I.e., the machine returns an Identical souvenir-typecoin every time a coin Is Inserted therein and the rotary wheels activatedby the pulling of the lever. It Is further described asbelng a coin vendingmachine similar In appearanceand operationto a so-called slot machine and designed to permit Its efficientand simple adaptationand constructionfrom a conventionalslot machine.

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Article 642a, Vernon's Penal Code, provides In relevant part as follows:

"Section1. The term 'slotmachine,' as used In this act, means: (a) Any so-called 'slotmachine' or any other machine or mechanicaldevice, by whatsoevername known, an essentialpart of which is a drum or reel with Insignia thereon, and
(1) which when operatedmay deliver, as the result of the applicationof an element of chance, any money, or property or other valuable things, or (2) by the operationof 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 manufacturedor adapted to operateby means of the Insertionof a coin, token, or other object and designed,manufacturedor adapted so that when operated It may deliver, as the result of an applicationof an element of chance, any money, or property; or (c) Any subassemblyor essentialpart ~lntended todmm~~ be used in connectionwith such machine or mechanical device."
"Section2. 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 convictionthereof 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 definitionsof a "slotmachineW as proscribedby the Act.

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Subsection (a) defines a machine with drums or reels with Insignia thereon whichmay 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 operatingplayer 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 deliberatelyIn the machineunder considerationthat the machine now does not come within the terms of subsection (a).
Subsection (b) proscribesa machine or mechanicaldevice operated by a coin and "designed, manufactured or adapted so that when operated it may deliver, as the result of an applicationof an elementof chance, any money or property". (Emphasis added.)
Subsection (c) extends the proscription of the statute to any subassemblyor essentialpart Intended to be used In connectionwith 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 questionpresented. Therein, the Court held that a marble table was within the prohibition of Article 642a even though the mechanismdelivering free games through an element of chance was disconnectedso that free games could not be given. The Court reasoned the marble table was designed and manufactured so as to give free games by operationof 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-OffPin-BallMachines, D.C., 113 F. Supp. 230, holding the design and manufacture of the machine to be controllingrather than the actual use or conditionof the machine at the time of the seizure.

In the device YOU describe and under the facts you present, which-wem&t assum; are true, it seems apparent that thk machine was also originally designed and manufacturedor 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 vendingmachine In question is constitutedIn the main by an essentialpart of the original slot machine prescribedby said Article 642, Vernon's Penal Code, and thus comes within the purview of Subsections (b) and (c) of the Article,
Article 642a containsalmost the Identicallanguage found in Section 1171, Title 15, U.S.C.A., forbiddingtransportation In Interstatecommerce of gambling devices. The federal courts, In construingthe statute , have uniformlyheld that the design and manufactureof the machine Is controlling rather than the actual use or conditionof 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-BallMachines, 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.358U.S. 936; reh. den. 353 U.S. 978).

It seems that the gravamen of the offensewhich Article 642a was designed to eliminate is the use of any machine, in whole or In part, that originallycame into being with the functions of a slot machine as defined by statute,regardless of how such machinemay thereafterbe altered. Therefore,It Is to be understoodthat we are not passing upon the legality of any such vendingmachine with the functionsof the one In question but which was fabricatedwholly from new materialwhich had never been a part of any machine designed and manufactured or adapted to operateby means of the insertionof 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 applicationof an element of chance,money or property.

We are in agreementwith your conclusionthat the machine, having been originallydesigned and manufacturedto operateby means of the Insertionof a coin to the end that when operated it may deliver as the result of the applicationof an element of chance,money, or property, Is a slot machine within the intent and meaning of Article 642a, irrespectiveof its current conditionor use. After the removal of the gamblingdevice from the machine, the remaining $ortlon thereof would constitute "subassembly

or essentialpart of a slot machine as defined ind proscribed In Section 1 (c) of Article 642a.

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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, operatedby the Insertionof
a specie coin and by the pulling of a lever, comes wittiiheproscriptionof Article 642a, Vernon's Penal Code, since it was originallydesigned and manufactured to deliver, when operated,a thing of value through an element of chance,money, or property.

very trulyA

Preparedby R. L. Lattimore AssistantAttorney 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 ExecutiveAssistant
Nola White First Assistant

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