Honorable Dwight Whitwell Opinion NO. O-5068 

Criminal District Attorney 

Collin County Re: Under the facts submitted, 

McKinney, Texas does giving the free music 

as a prize constitute both 

the marble machine and the 

music box a gaming table 

Dear Sir: or gaming device? 

This will be in reference to your letter requesting 

the opinion of this department on the above stated question 

and other related matters. With reference to the facts submitted, we quote as follows from your letter: 

“We have several persons who own a varying 

quantity of marble tables which they have placed 

in numerous places of business over this county. 

Along with each marble table is also placed a phonograph or music box containing automatic record plagers in which can be dropped a nickel and the customer may select the particular tune he desires to hear. 

The marble tables themselves do not pay off anything in money or prizes but most of the marble 

tables are connected to the music boxes by an electric cord so that when a player places a nickel 

in the marble machine and plays a game of marbles 

and hits a certain required score a record in the 

music box automatically begins playing. If the 

player so desires he may push a button on the 

music box before he begins playing the marble 

game and thereby select a particular piece of 

music he desires to hear in the event he strikes 

the required score on the marble table. There is 

no other prize or pay-off on the marble tables.” 

Based uponthe foregoing statement of facts, you have 

posed several questions. For the first one, we quote from your 

letter as follows: 

“Question No. 1. Does this combination in 

giving the free music as a prize constitute both 

the marble table and the music box a gaming table 

or gaming device?” 

Article 619, Vernon’s Annotated Penal Code, deals ti81 

the offense of keeping or exhibiting gaming tables, banks, and 

other devices used or exhibited for gambling purposes, and in 

part provides: 
Honorable Dwight Whitwell, page 2 

“Any such table, bank, wheel, machine, or device 

shall be considered as used for gambling, if money 

or any thing of value is bet thereon.” 

The Texas courts have held that “a thing of value” 

referred to in the above article, includes, among other things, 

free 

I 

2d) f48, Broaddus v. 

ames won on marble tables, State v. Langford, 144 S.W. 

State, 141 Tex. Cr. R. 512, 150 S.W. 

26) 247, Hightower v. State, 156 S.W. (2d) 327, writ of error 

refused; tokens won on a machine 

dSl~, Mills v. Browning, 59 S.W. 

I 

? 

ood for trade-in on merchan2d) 291, Moore v. State, 91 

s:w: 

2d) 447; and money won on a machine, Houghton v. Fox, 93 

A selection of music won on a marble table would 

likewiEt)c%titute a “thing of value” within the statute and 

hence the marble machine would be considered as used for gaml%ng 

The followin 

v. State, 118 S.W. (2d f 

is a quotation from the case of MSbovI.1 

615, as to what the court considered as 

constituting “gaming :equipment”: 

. . . . the evidence offered was sufficient to 

sustain findings to the effect that the property the 

sheriff seized at the location given belonged to the 

appellant and was being then and there used by him in 

connection with a bookmaking shop with reference to 

horse racing; that the blackboards referred to were 

likewise being used by him to write the results ,of 

the races upon; and that the loud speakers, which were 

connected with a radio, were also being used by him 

for the purpose of announcing the results of the 

horse races to many persons assembled for the purpose 

at that place, who had tickets showing that a bet had 

been made on such horse races; in other words, the 

appellant had been using his place there for the purpose of promoting betting on horse races by means of 

pool selling, and In connection therewith and in furtherance thereof, he had been so using the seized 

property .” 

The court took the view that since betting on horse races thrcu$-~ 

pool selling was gambll,ng. the property used In connection then+ 

with constituted gam iog equipment.” 

Since it is the opinion of this department that the 

circumstances surrounding the playing of the marble machine under 

discussion is gambling, the phonograph or music box used in 

connection therewith, as a part thereof. and in the furtherance 

of playing the machine constitutes “gaming equipment” condemnable under the statute. 

For your next question, we again quote from your letter: 
Honorable Dwight Whitwell, page 3 

“Question No. 2. Since these machines are displayed in public places such as restaurants and 

sandwich stands and so forth, where the general ~publit Is invited, can an officer go into these places 

and seize these machines without the necessity of 

first securing a search warrant?” 

The court in the case of Moore v. State, 91 S.W. (2d) 

447, said the following with reference to searching and seizing 

gaming equipment at public places: 

“The Constitution and statutes do not prohibit 

every character of search and seizure without a warrant, but prohibit unreasonable searches and seizures. 

These machines were operated for gaming purposes in 

public places to which the entire public, including 

the sheriff and his officers, had access. He had actually seen parties gambling on at least a part of 

the machines involved. There was no unlawful entry to 

make the seizures. The court passed on probable cause, 

and, In our opinion, under the facts, were authorized 

to find that the defendant in this case acted on 

probable cause .I’ 

Also to the same effect are Raker v. State, 131 Tex. Cr. R. 626, 

101 S.W. (2d) 816, Judge Looney’s opinion in Hightower v. 

State, supra, Lee v. State, 140 Tex. Cr. R. 155, 143 S.W. (2d) 

389. 

It Is the opinion of this department, under the facts 

as submitted, that if the officer had sufficient probable cause 

that the equipment was being used for gambling, a seizure of U-e 

equipment could be made without first securing a search warrant 

For the third question, we quote from your letter: 

“Question No. 3. Would the fact that the officer 

finds the marble table connected to the music box by 

an electric cord be sufficient evidence upon which to 

secure a confiscation order or would it be necessary 

for the officer to play the marble table and actually 

secure a piece of music free, or, of course, to see 

somebody else do this?” 

The court in the case of Hightower v. State, supra, 

had the following to say with reference to the evidence necessary to secure an order of the confiscation of so-called gaming equipment: 

11 .*. The statute does not expressly classify 

marble boards, or like devices, as inherently 
Honorable Dwight Whitwell, page 4 

offensive; hence the question of illegality must hinge 

upon the nature of their actual use. 'A slot machine, 

it has been said, is not per se a gambling device, 

since it may be used or played upon for innocent purposes; and the courts cannot, therefore, take judicial 

notice that every slot machine is a gambling device, 

since the use to which it has been put must determLne 

its character.' 24 Amer. Jur. B35, supra. 'A gaming 

table is not determined by its structure, but of the 

purpose for which it is exhibited'; Houghton v. Fox, 

Tex. Civ. App. 93 S.W. (2d) 781, 782; and in all annotations under An. 619, Vernon's P.C. Vol. 1, p. 566, 

where this phase of the statute has been considered, 

it is uniformly stated that 'Whether or not the table 

was designed for gaming purposes is immaterial . . . 

it is the game or character of play on it that determines its status. ’ It would follow, therefore, that 

the marble machines of the 'non-pay-off' variety, as 

to which no evidence is adduced of their being used 

for gaming purposes at the time of seizure, are not 

gaming devices within the inhibition of the above 

statute; for, no matter what the structure of these 

particular boards may be, whether games of chance or 

of skill, they are not to be classed ipso facto as 

gambling devices, so long as not used for gambling 

purposes; i.e., where no money or thing of value is 

bet thereon. An entirely different situation would 

exist if, by mechanical adjustment, the machines w,ere 

made to pay off; or if an understanding be had with 

the proprietor 'over the counter' to the same effect: 

or in case of knowledge,and acquiescence by the 

machine keeper to a wagering by players upon resulting scores. The machines would then become gambling 

devices per se, placing the defendants factually 

within the purview of Houghton v. Fox, suprz; but such 

evidence is wholly absent from this record. 

In Callison v. State, 146 S.W. (2d) 468, the court 

held that in order to condemn property that might be used for 

gaming and authorize its destruction, it must be shown that such 

property was designed for gaming and was, at the time of seizure, 

being used for gaming. 

Therefore, it is the opinion of this department that 

merely finding the music box connected to the marble machine 

would not be sufficient evidence to secure a confiscation order. 

That before such an order could be secured there must be some 

evidence, whether offered by the peace officer from his observation or knowledge, or offered by others from their observation 

or knowledge, that by a mechanical adjustment between the music 

box and marble table, the latter would 'pay off" in the nature 

of musical selections emanating from the music box. 
Honorable Dwight Whitwell, page 5 

For your last question, we again quote from your letter 

‘e uestion No. 4. Under Article 4667 of the Civil 

Statutes will an Injunction Suit eon the part of the State 

to enjoin the continued operation of these devices be 

properly brought under said Article of the Statutes?” 

Article 4667, Vernon’s Annotated Civil Statutes of 

Texas, provides in part as follows: 

“The habitual use, actual, threatened or contemplated, of any premises, place or building, or part 

thereof, for any of the following uses shall be enjoined at the suit of either the state or any citizen 

thereof: 

“1 . For gaming or keeping or exhibiting games 

prohibited by law. 

II 

. . . 

“Any person who may use or be about to use, or 

who may aid or abet another in the use of any such 

premises for any purpose mentioned in this article 

may be made a party defendant in such suit. . . .” 

As we construe this article, the using of the premises 

for the purpose of operating the machines under discussion child 

be enjoined and the owner of the devices could be made a party 

defendant. However, it is our opinion that under this article 

an injunction would not lie merely to enjoin the owner of such 

devices from operating them in the future at any and all places. 

In other words, the owner of the premises could be enjoined from 

using particular or certain described premises to operate gaming 

devices and the owner of the machines could be made a party 

thereto, but that under this statute, the owner of the machines 

alone could not be enjoined from continually operating them. 

ROK:db:hp 

APPROVED JUN 24, 1943 

/s/ Grover Sellers 

FIRST ASSISTANT 

ATTORNM GENERAL 

APPROVED Opinion Committee 

By /s/ BWB 

Chairman 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Fred C. Chandler 

Fred C. Chandler 

Assistant 

By /s/ Robert 0. Koch 

Robert 0. Koch