THE ATTORNEY GENERAL 

OF TEXAS 

December 20, 1990 

Honorable Terra1 Smith 

Chairman 

Natural Resources Committee 

House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Dear Representative Smith: 

Opinion No. JM-1267 

Re: Authority of the legislature to permit casino games of 

chance without a constitutional 

amendment (RQ-2102) 

Article III, section 47, of the Texas Constitution 

provides that the.legislature "shall pass laws prohibiting 

lotteries and gift enterprises," while permitting the 

holding of certain charitable bingo games and raffles. The 

legislature has so provided, forbidding in chapter 47 of the 

Penal Code the holding of lotteries. In addition, the 

definitions and prohibitions set forth in chapter 47, which 

proscribes "gambling~~ as defined in that chapter, are broad 

enough to effectively prohibit those types of games typically conducted in gambling casinos. See Searcy & Patterson 

Practice Commentary, Tex. Penal Code g 47.02 (Vernon 1973).1 

You ask about the proper construction of section 47 of 

article III. Specifically you ask the following three 

questions: 

1. The Practice Commentary to section 47.02 provides 

in pertinent part: 

Section 47.02 as enacted appears to proscribe all 

forms of gambling, from coinmatching and the weekly 

football pool to lotteries and roulette to parimutuel 

betting whether on track or with a bookie. As such 

the section preserves, although with much greater 

economy, the basic scheme of prior law that in Penal 

Code arts. 615 to 618, 644, 645, and 646 to 652 outlawed most forms of gambling. 

p. 6768 
Honorable Terre11 Smith - Page 2 (JM-1267) 

1. May the legislature, without an amendment 

to Article III, Section 47, of the Texas 

Constitution, authorize any of the following 

casino gambling games [in] this state: 

(a) roulette; 

(b) dice; 

(c) slot machines; or 

Cd) other games awarding a prize solely 

by chance? 

2. May the legislature, without an amendment 

to Article III, Section 47, of the Texas Constitution, authorize any of the following 

casino gambling games in this state: 

(a) poker; 

(b) blackjack; 

(c) sports pools: or 

(d) other games involving an element of 

skill? 

3. May the legislature, without an amendment 

to Article III, Section 47, of the Texas 

Constitution, authorize casino gambling to 

exist 9$& on Port Arthur's Pleasure Island? 

There is no question that chapter 47 of the Penal Code 

proscribes those gaming activities about which you ask. See 

Penal Code 88 47.01, 47.02. The issue is whether those 

gaming activities fall within the ambit of the phrase 

"lotteries and gift enterprises" set forth in section 47 of 

article III and are thereby prohibited by the Texas Constitution. If they do, then the legislature may not authorize 

those activities by amendins the Penal Code: if not, then it 

may. &g 0, -494 S.W.Zd 866 (Tex. Crim. APP. 

1973); barrv v. State, 45 S.W. 571 (Tex. Crim. App. 1898). 

The Texas Constitutions of 1845, 1861, 1866, and 1869 

each contained the following prohibition regarding lotteries: 

P. 6769 
, 

Honorable Terre11 Smith - Page 3 (JM-1267) 

No lottery shall be authorized by this 

State: and the buying or selling of lottery 

tickets within this State is prohibited. 

Tex. Const. art. XII, 5 36 (1869); Tex. Const. art. VII, 

5 17 (1866): Tex. Const. art. VII, 5 17 (1861); Tex. Const. 

art. VII, § 17 (1845). The constitution of 1876 contained 

the following prohibition of lotteries set forth in section 

47 of article III: 

The Legislature shall pass laws prohibiting the establishment of lotteries and 

gift enterprises in this State, as well as 

the sale of tickets in lotteries, gift enterprises or other evasions involving the 

lottery principle, established or existing in 

other States. 

- 

The addition of the language prohibiting 'I 

9 

ift enterprises 

or other evasions of the lottery principle" apparently was 

included in order to indicate the drafters' support of two 

Texas Supreme Court cases that held that the 13th Legislature did not license the operation of "gift enterprises" by 

the enactment of an occupation tax on them and that a "gift 

enterprise," as then understood, was essentially a lottery.3 

See Randle v. State, 42 Tex. 580 (1875); State v. Randle, 41 

Tex. 292 (1874); 1 G. Braden, The Constitution of the State 

of Texas: An Annotated and Comnarative Analvsis 192 (1977). 

2. It is apparent that the phrase was intended to 

proscribe other forms of lotteries. See also Citv of Wink 

v. Griffith Amusement Co., 100 S.W.2d 695 (Tex. 1936): State 

V. Randle, 41 Tex. 292 (1874). 

3. The licensing statute defined "gift enterprises" in 

the following fashion: 

Every person, firm, or corporation who shall sell 

anything with a promise, either expressed or implied, 

to give anything in consideration of such sale and 

purchase, shall be regarded as the proprietor of a 

gift enterprise. 

Acts 1873, 13th Leg., ch. 121, 5 3, at 200. 

P. 6770 
, 

Honorable Terre11 Smith - Page 4 (JM-1267) 

Section 47 of article III was amended in 1980 to permit 

the operation of bingo games by charitable organizations and 

again in 1989 to permit such organizations to hold raffles. 

Acts 1989, 71st Leg., H.J.R. 32, 5 1; Acts 1979, 66th Leg., 

S.J.R. 18, § 1. Subsection (a) of section 47 of article III 

of the Texas Constitution now provides the following: 

The Legislature shall pass laws prohibiting Lotteries and uift enternriseq-in this 

State other than those authorized by Subsections (b) and (d) of this section -[which 

authorize the legislature to permit under 

certain circumstances the conducting of 

charitable bingo games and raffles]. (Emphasis added.) 

The Texas Supreme Court has declared that section 47 

was not intended to condemn merely lotteries, but was intended also to condemn separately stated schemes, which were 

not lotteries, but which involved the lottery principle, or 

chance: 

In general, it may be said that chance is 

the basic element of a lottery. Unless a 

scheme for the awarding of a prize requires 

that it be awarded by a chance, it is not a 

lottery. . . . 

There are, however, in a lottery, according to the authorities, three necessary 

elements, namely, the offering of a prize, 

the award of the prize by chance, and the 

giving of a consideration for an opportunity 

to win the prize. 38 C-J. p. 289, § 2. But 

the ons tut'o inas which 

f all sor h t 0 f containina all the essential 

elements of a lotterv. namelv. those thinas 

which involve the lotterv nrincinle. of which 

q II ce" 's itutes the 

verv basis of a lotterv. and without which it 

o. w ul (Emphasis added.) 

[ C't of W'n o., 100 S.W.2d 695, 701 

(Tex. 1936). 

But it is equally clear that the drafters did not 

intend section 47 of article III to proscribe a forms of 

gambling. During the drafting of the constitution, an 

amendment to section 47 was offered to add the words "and 

4 

P. 6771 
Honorable Terre11 Smith - Page 5 (JM-1267) 

shall pass laws prohibiting gambling of every character in 

all places." The amendment was not adopted. 1875 Texas 

Constitutional Convention, Journal of the Constitutional 

Convention of the State of Texas, Begun and Held at the City 

of Austin, September 6, 1875, at 269. Moreover, it is clear 

that the term wlottery'* was not thought at the time that 

section 47 was adopted to include all forms of gambling 

either. See Panas V. Texas Breeder & Racina Ass'n 80 

S.W.2d 1020 (Tex. Civ. App. - GalvesEon 1935, writ diAm#d) 

(construing section 47 not to prohibit wagering on horse 

races); State v. Rand&, 41 Tex. 292 (1874); V.T.C.S. art. 

179e (creating the Texas Racing Commission and permitting 

parimutuel wagering on horse races and greyhound races). 

Texas courts uniformly have held that three elements 

comprise a lottery: 

(1) a prize in money or other thing of 

value: 

(2) its distribution by chance: and 

(3) payment, either directly or indirectly, 

of a valuable consideration for the chance to 

win the prize. 

Citv of Wink * Brice v. State, 

(Tex. Crim. ipp?%;) 

242 S.W.Zd 433, 434 

; Cole v. State, 112 S.W.2d 725 (Tex. 

Crim. App. 1937); State v. Soconv Mobil Oil Co., 386 S.W.Zd 

169 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.)i4 

see also Attorney General Opinions JM-513 (1986); H-820 

(1976). 

With your first two questions, you ask whether a list 

of gaming activities typically conducted in gambling casinos 

falls within the ambit of the phrase "lotteries and gift 

4. Subdivision (6) of section 47.01 of the Penal Code 

defines *llottery" in the following fashion: 

*Lottery' means any scheme or procedure whereby one or 

more prizes are distributed by chance among persons 

who have paid or promised consideration for a chance 

to win anything of value, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift 

enterprise, sale, policy game, or some other name. 

p. 6772 
Honorable Terre11 Smith - Page 6 (JM-1267) 

enterprises." For purposes of this opinion, we assume that 

two of the necessary three elements of a lottery would be 

present during the holding of the gaming activities about 

which you inquire, h, the payment of consideration and 

the awarding of a prize. We understand you to ask whether 

the necessary third element, the award of the prize by 

chance, as opposed to an award determined by skill, would 

also be present. 

In Attorney General Opinion C-619 (1966), this office 

was asked whether a certain referral selling plan called a 

"representative purchasing commission agreement" constituted 

a lottery. In discussing the necessary element of chance, 

the opinion declared: 

The second element, the distribution of the 

prize by chance, requires a closer analysis 

in the light of the decisions as to whether 

the dominatina element of the entire scheme 

was that of chance, or that of skill, judgment , or ingenuity, 54 C.J.S. 846, Lotteries, 

Sec. 2b(2), and cases cited. If the plan or 

game depends entirely on skill, it is not a 

lottery although prizes are offered for the 

best solution. Boatriaht . State, 118 Tex. 

Crim. 381, 38 S.W.Zd 87 71931). If chance 

predominates over skill or judgment and permeates the whole plan, a lottery is established. &.9rwood & Robert Yakima. I c 

Clvde . Le 67 W.D.Zd :;8, 409 P.:d' 1:; 

(Wash.GSup.azti5). 

Id. at 5-6 (emphasis in original). m Adams v Antonio, 88 

S.W.2d 503, 505 (Tex. Civ. App. - Waco 1935,'writ ref'd) 

(dicta to the effect that gaming statute was violated in 

instance in which chance predominates over skill): see also 

Attorney General Opinions WW-222 (1957); V-1483 (1952); 

V-544 (1948); V-238 (1947). 

We conclude that the legislature, without amending 

section 47 of article III of the Texas Constitution, may 

amend chapter 47 of the Penal Code to permit the holding of 

those gaming activities that do not constitute a lottery, 

i.e., that do not comprise the elements of consideration, a 

prize, and chance. Whether any of the gaming activities 

about which you ask involves the dominating element of 

skill, as opposed to chance, is a question of fact that 

cannot be resolved in the opinion process. It is the 

character of the game, and not the skill or want of skill of 

P. 6773 
Honorable Terre11 Smith - Page 7 (JM-1267) 

the player, that determines whether the game is one of skill 

or chance. m w v. AntOnlQ m (authorities cited 

therein). Therefore, we cannoi answer your first two 

questions. 

Your third question is whether the legislature may, 

without amending section 47 of article III of the Texas 

Constitution, permit the holding of those gaming activities 

typically comprising casino gambling a in Port Arthur. 

You have not provided us with a draft of any proposed 

amendment to chapter 47 of the Penal Code. We do not 

provide general guidance or answer speculative questions in 

the opinion process. Accordingly, we decline to answer your 

third question. We note, however, #at any amendment to 

chapter 47 of the Penal Code that permitted in Port Arthur 

alone the holding of otherwise proscribed gaming activities 

should be considered in light of article III, section 56, of 

the Texas Constitution.5 But see V.T.C.S. art. 179e, 

9 6.14(c) (provides that each greyhound track licensed under 

the act must be located in a county that has a population of 

more than 190,000 according to the most recent federal 

census, and that includes all or part of an island that 

borders the Gulf of Mexico). 

We conclude that the legislature may, without amending 

section 47 of article III of the Texas Constitution, amend 

chapter 47 of the Penal Code to authorize gaming activities 

that do not constitute a lottery or gift enterprise, i.e., 

5. Article III, section 56, of the Texas Constitution 

prohibits the legislature from enacting, except as provided, 

local and special laws and provides in pertinent part: 

The Legislature shall not, except as otherwise 

provided in this Constitution, pass any local or 

special law, authorizing: 

. . . . 

For limitation of civil or criminal actions: 

. . . . 

And in all other cases where a general law can be made 

applicable, no local or special law shall be enacted. 

P. 6774 
Honorable Terre11 Smith - Page 8 (JM-1267) 

that do not comprise the three elements of consideration, 

prize, and chance. Whether any specific gaming activity 

involves the dominating element of skill, as opposed to 

chance, is a question of fact that this office cannot 

resolve in the opinion process. Therefore, we cannot answer 

as a matter of law your first two questions. Because we do 

not answer speculative questions in the opinion process, we 

cannot answer your third question. 

SUMMARY 

The legislature, without amending section 

47 of article III of the Texas Constitution, 

may amend chapter 47 of the Penal Code to 

authorize the holding of those gaming activities that do not comprise the elements of a 

lottery, i.e., consideration, prize, and 

chance. Whether any specific gaming activity 

involves the dominating element of skill, as 

opposed to chance, is a question of fact that 

this office cannot resolve in the opinion 

process. I . 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKIEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moel,linger 

Assistant Attorney General 

JIM MATTOX 

Attorney General of Texas 

‘ 

? 

p. 6775