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 aprize constitute both the marble machine and the music box agaming 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, wequote as follows from your letter:

“Wehave several persons whoownavarying quantity of marble tables which they have placed in numerous places of business over this county. Along with each marble table is also placed aphonograph or music box containing automatic record plag

### ers in which can be dropped anickel and the customer mayselect the particular tune he desires to hear. Themarble tables themselves donot 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 whenaplayer places anickel in the marble machine and plays agameof marbles andhits acertain required score arecord in the music box automatically begins playing. If the player so desires hemaypush abutton on the music box before hebegins playing the marble gameandthereby select aparticular piece of music he desires to hear in the event he strikes the required score onthe marble table. There is noother prize or pay-off onthe marble tables.” Based uponthe foregoing statement of facts, you have posed several questions. For the first one, wequote from your letter as follows:

“Question No. 1. Does this combination in giving the free music as aprize constitute both the marble table and the music box agaming 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.” TheTexas courts have held that “a thing of value” referred to in the above article, includes, amongother things, free
I2d) f48, Broaddus v. ames wononmarble 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 wonon amachine dSl~, Mills v. Browning, 59S.W.
I ?ood for trade-in onmerchan2d) 291, Moore v. State, 91

s:w: 2d) 447; andmoneywonon amachine, Houghton v. Fox, 93 Aselection of music wononamarble 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. (2df is aquotation 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 andwasbeing then and there used byhim in connection with abookmaking shop with reference to horse racing; that the blackboards referred to were likewise being used byhim to write the results ,of the races upon; and that the loud speakers, which were connected with aradio, were also being used byhim for the purpose of announcing the results of the horse races to manypersons assembled for the purpose at that place, whohad tickets showing that abet had been madeon such horse races; in other words, the appellant had been using his place there for the purpose of promoting betting onhorse races by means of pool selling, and In connection therewith and in furtherance thereof, hehadbeen so using the seized property

.” The court took the view that since betting onhorse 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 apart thereof. and in the furtherance of playing the machine constitutes “gaming equipment” condemnable under the statute.

Foryour next question, weagain 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 anofficer go into these places and seize these machines without the necessity of first securing asearch warrant?”
The court in the case of Moore v. State, 91S.W. (2d) 447, said the following with reference to searching and seizing gaming equipment at public places:

“The Constitution and statutes donot prohibit every character of search and seizure without awarrant, but prohibit unreasonable searches and seizures. These machines were operated for gaming purposes in public places to which the entire public, including the sheriff andhis officers, had access. Hehad actually seen parties gambling on at least apart of the machines involved. There wasno unlawful entry to makethe 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 sameeffect 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, 140Tex. 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 wasbeing used for gambling, a seizure of U-e equipment could be madewithout first securing a search warrant

For the third question, wequote 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 uponwhich to secure a confiscation order or would it be necessary for the officer to play the marble table and actually secure apiece of music free, or, of course, to see somebody else dothis?” The court in the case of Hightower v. State, supra, had the following to say with reference to the evidence necessary to secure anorder of the confiscation of so-called gaming equipment:

11 .*.The statute does not expressly classify marble boards, or like devices, as inherentlyHonorable Dwight Whitwell, page 4

offensive; hence the question of illegality musthinge upon the nature of their actual use. 'A slot machine, it has been said, is not per se agambling device, since it maybe 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. 93S.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 wasdesigned for gaming purposes is immaterial

. . . it is the gameor 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 noevidence 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, nomatter what the structure of these particular boards maybe, 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 nomoneyor thing of value is bet thereon. Anentirely different situation would exist if, by mechanical adjustment, the machines w,ere madeto pay off; or if an understanding be had with the proprietor 'over the counter' to the sameeffect: or in case of knowledge,and acquiescence by the machine keeper to awagering by players upon resulting scores. Themachines 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 andauthorize its destruction, it must be shown that such property wasdesigned for gaming andwas, 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 aconfiscation order. That before such anorder 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 amechanical adjustment between the music box andmarble 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, weagain quote from your letter

‘euestion No. 4. Under Article 4667 of the Civil Statutes will anInjunction Suit eonthe 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 whomayuse or be about to use, or whomayaid or abet another in the use of any such premises for any purpose mentioned in this article maybe madeaparty defendant in such suit.

. . .” Asweconstrue 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 madeaparty 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 andall 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 madeaparty thereto, but that under this statute, the owner of the machines alone could not be enjoined from continually operating them. ROK:db:hp APPROVED

JUN24, 1943 /s/ Grover Sellers FIRSTASSISTANT ATTORNMGENERAL APPROVED

Opinion Committee By/s/ BWB Chairman Yours very truly ATTORNEY

GENERAL

OFTEXAS
By/s/ Fred C. Chandler

Fred C. Chandler

Assistant
By/s/ Robert 0. Koch

Robert 0. Koch