Hon:, Wiley L, Caffey

Dietriot Attorney Abilene, Texas
Dear Sir: Re: Legality of machines which dispense ball gumor 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 gumo.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 gumor 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 nameor 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 nameor 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 maohlnearare 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 10is ; The question here presented is whether the machine de-

.,,’scribed by you is .a g,aMng device. Since the machine contains both bal& gumand 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 ~machineitself and not upon any skills of operation. However, the statute in question makes no distinctionHon. 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~usstionf~oltr the,‘,graup dPepl&yeb on .the’board .and disclose the coTTec~ ‘m3weT:~

In t&Tcy aeeoo.ds

. 

### Ifhe 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 knownwhat the number will’be unt’!&it! 18 dravn~and removed from the oapsule..

“ih, 

### areof the opinion they 

### are *gaming devices 1

“vi&in the meanin of Art. 

### 6,19,, Penal Code of Texas, ,Lw uhiob makes it un 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&meor gaming, nor Boos the statute make any distinction between games ,of oha@ce ..andgames of skill. Texas 

### Courtshave 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&nguageabove 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 rulevat3

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., 

### 88S.W,% 503,vrft 

### refWied,

that def

’iaition 

### va6 a ia reoognlaed 

### as oorrect. In thirp Latter oa1te t $8 

### mid that it 

### was T 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,2datpage505). !Pheooateption that ekillHon. Wiley I.0.Caffsg, page 

### 3 (v-1091)
predominates avails nothing. The induo6ment and lure of this ,gameis the odds ranglng from two to twenty to one. . .I Wecannot 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 gumoffers 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 gumand 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: NedblcDan~ls1 State Affairs Division Everett Hutohinson Executive Assistant Charles D. Mathews First Assistant JSM/rt PRICEDAI’iIEL Atto%ney General