                        The homey                 General cd Texas
                                          April    12,    3.978

JOHN L. HILL
Attorney General


                    Honorable Felipe Reyna                        Opinion No. HA 1153
                    Criminal District a +t.xney
                    McLennan Cour~ty Courthouse                   Rez Whether a coin game which
                    Waco, Te%as            .                      awards tokens redeemable for a
                                                                  prize may be used in Texas.

                    Dear Mr. ,Reyna:

                          You have requested our opinion regarding the operation of a coin game
                    which awards tokens redeemable for a prize; You describe the game; called
                    theTreasurech~“ason~

                               consists     -of a boxlike structure contahtii    a coin
723bh.6”“.616                  insert, a motor drive, and a wing    fie7d.l ‘lhe player,
HkRaTx.na6                     by means of a coin slot at the front of the machine,
71-1
                               inserts the coin on a playhig board covered with stacks
                               of coins of equal denomi@ation and the ‘playing token’
                                Which bMis the bksis of Fe object of the game. llm
                               play,er then manipt&tes his c&i over the dther coins
                               in the mt%hine’s playhig area by use of a ,.m&haiiiial
                               d&e;      the object beii to remove one of the tokens
4n3N.Tal6l.sutmF
                               from the playhg area into a device to return it to~the
Md6mTx76661                    player. The token fif reeoVeredI is then exchanged for
61-7                           a prize.r

%33Md”Plu*SUi*UJ6
                         Under section 47.06 of the present Texas Penal Code, “a person
6mAnbmlo.lx.76m6    corn&s an off&e if he knowingly i . . possesses any gambling device that he
6-161               kmws ls designed for gambling purposes . . .” “Gambling device” is defined
                    as

                                any mechanical contrivance thet for a consideration
                                affords the player an opportunity to obtain anything of
                                value, the award of whi&h is determined by chance,
                                even though, accompanied by some skill, whether or not
                                the prize is automatically paid by the contrivance.

                    Section 47.01(3).




                                                  p.     4677
Honorable Pelipe Reyna    -   Page 2   UI-1153)         .~


      The prior Texas Penal Code did not make a distinction between games of
chance and games of skill. Adams v. Antonio, 88 S.W.2d 503, 505 (Tex. Civ. App. -
- Waco 1935, writ ref’d). Marble machines, which appear to be closely akin to the
game at issue here, have been held to violate the gaming statutes.      See, e.g.,
Barkley v. Conklin, 101S.W.%d 405 (Tex. Civ. App. - Waco 1937, no writ); Speed v.
w      ll0 S.W.%d 1245 (Tex. Civ. App. - Waco 1937, no writ).

       The statutory definition of “gambling device” apparently now requires proof
of at least some element of chance in the operation of a game. You state that the
operation of the “Treasure Chest” is dependent to some extent upon chance. Cn
the basis of that determination,  we believe it is clear that the game, as you have
described it, is embraced within the statutory definition of “gambling device,” the
posse&on of which is prohibited by article 47.06 of the Penal Code.

                                  SUMMARY

           As described, a coin game known as the “Treasure Chest” is
           a “gambling device,” the possession of which is prohibited by
           article 47.96 of the Texas Penal Code.

                                          Very truly yours,




C. ROBERT HEATH. Chairman
Opinion Committee ’

jst




                                         ‘P-   4678
