Hon:, Wiley L, Caffey 

Dietriot Attorney 

Abilene, Texas 

Dear Sir: 

Re: Legality of machines 

which dispense ball 

gum or metal trinket 

when penny is inserted. 

Your recent letter,~inquirea as to the’legrLd.ty of the 

operat%on d’ “Gum-Trinket Penny Machfnes” which, you advise, 

oonsist, of “a &ass ball filled with either ball gum o.r some 

other type of gum, and vlth a lesser number of! trinkets, . 

more valuable than the gum. A penny is inserted and the machine 

dispenses either a piece of gum or a trinket.” 

Ausxxu 11. Texas 

August 18, 1950 

opinion No. v-~1091 

Artfcle 619, V.P.C,, provides a8 followsn 

“off any. person ehall directly~, ‘or as agent 

or employee for another, or through any agent or 

agents, keep or exhibit for the purpose of gaming, 

any policy game, any gaming table, bank, vheel or 

devl OS Y name or delcrlption whatever, or any 

tabl”,‘l ban: wheel or device for the purpose of 

gam%ng ,vhich has no name, 02 any slot machine, any 

pigeon hole table, any jenny-lind table, or table 

of any kind whatsoever, regardless of the name or 

whether named ornot, he shall be confined In the 

penitentiary not leas than two nor more than four 

yeara regardless of whether any of the above mentioned games,, tablea, banks, wheels, devices or 

alot maohlnear are licensed by law or not. Any 

such table, bank, wheel, machine or device shall 

be considered as used for gaming, if money or an - 

thing of value is bet thereon. Acts 190 

Acts 1913, pl 277.” (Emphasis supplied. 1 

, pa 10 is ; 

The question here presented is whether the machine de- 

.,,’ scribed by you is .a g,aMng device. Since the machine contains 

both bal& gum and trinkets and dispenses either a piece of gum 

or a trinket tb) one vho inserts a coin therein, we agree with 

you that Its operation qresents 'an ~element of chance. The machino is similar to a slot machine in that the result of playing 

It depends upon the ~machine itself and not upon any skills of 

operation. However, the statute in question makes no distinction 
Hon. Wiley L, Caffey, page 2 (V-1091) 

“TiS$ ~partfrrigant paid,,54 ,for the privilege of 

drawing :&~ oapsuZe o&x&x&ng a number ,fropl the bowl. 

fluI& 2 reqzL$r~~Iru~' 'to~~qep+?he hie q~usstion f~oltr 

the,‘,graup dPepl&yeb on .the’ board .and disclose the 

coTTec~ ‘m3weT:~ In t&Tcy aeeoo.ds . If he vere unable 

~to. oomplete tM% -perfoormbnoe within the thlrt y seco~nda, 

or,,,~ if his anever be inoorrect, he lost hi8 nickel. 

i If~:vith~in time and his an8ver be oorre,ct, he reaelved 

,,, ',3he~~cpnOunt: Opposite his number combination and, quest,ion,,-ratiglng from log ‘to o,ne dollar, a8 above lndici&&+ It oannot be known what the number will’be 

unt’!&it! 18 dravn~ and removed from the oapsule.. 

“ih, are of the opinion they are *gaming devices 1 

“vi&in the meanin of Art. 6,19,, Penal Code of Texas, 

uhiob makes it un ,Lw ful to fkeep or .exhibit for the 

pu@ts5~3s. offgaming, any policy game * + * or dewloe 

&.stx4ption whatever * * * or devloe 

g$&&$& wh;$&, has, no name, + * f: 

%&code daes not define g&me or gaming, nor 

Boos the statute make any distinction between games 

,of oha@ce ..and games of skill. Texas Courts have 

madeno such distinctions. In the early case of 

Steam&3 ‘v , State, 21 Tex. 692, the Supreme Court, 

on a~ :conside.ration of the statute containing the 

L&nguage above quoted, defined a game as follows: 

iA game is a trial of skill, or of ahanoe, or of 

skill and chance, between tvo or more contending 

partlee, acaording to some rule by which each may 

euaceed or fail in the trial.1 %?hla rule vat3 held 

t be correct in Toler v. State, 41 Tex, Cr. R. 659, 

5% s.w.917. As we understand the o lnion in Adams 

v. Aateaio, Tes. Civ t APP., 88 S.W,% 503, vrft 

refWied, that def’iaition va6 a ia reoognlaed as 

oorrect. In thirp Latter oa1te T t $8 mid that it was 

unnecessary to determine whether the game played Is 

one of ahanoe or ekill for-the PeaBou the statute 

makes no such distinctIon (bottom first 6olumn, 88 

S,W,2d at page 505). !Phe ooateption that ekill 
Hon. Wiley I.0. Caffsg, page 3 (v-1091) 

predominates avails nothing. The induo6ment and 

lure of this ,game is the odds ranglng from two to 

twenty to one. . .I 

We cannot test a gaming devioe by degree or by the 

amount of money required to operate such device. The test is 

in its purpose and method of operation. The maahlae here under examination is no less a gaming device merely because the 

amount of money required for a single operation is trivial; 

in this case one ‘Benny. It is evident that trinkets are put 

in the machine to induce prospective players, regardless of 

age, to place money %herein repeatedly with the hope of getting 

a trinket more valuable thaq a ball of gum. The uncerta,inty of 

whether the machine will pay off a trinket or a ball of gum offers sufficient element of ohanoe to constitute gaming. In our 

opinion, the machine is a gaming device contrary to publio polLog and prohibited by the statvta in question. 

SUMMARY 

A pm-trinket machine consisting of a glass ball 

containing ball gum and trinkets, one of either of 

which will be dispensed upon the insertion of 8 

penny Into such mauhlne, 1,s a gaming device and prohibited by Article 619, V.P.C. 

Yours very truly 

APPROVED: 

Ned blcDan~ls1 

State Affairs Division 

Everett Hutohinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

JSM/rt 

PRICE DAI’iIEL 

At to%ne y General