                            Ausxxu 11. Texas


                            August 18, 1950

  Hon:, Wiley L, Caffey              opinion    No. v-~1091
  Dietriot  Attorney
  Abilene,  Texas                    Re:   Legality of machines
                                           which dispense ball
                                           gum or metal trinket
  Dear Sir:                                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.”
              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 men-
       tioned 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 , pa 10 is
                                                               ;
       Acts 1913, pl 277.”       (Emphasis supplied. 1

               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 ma-
    chino 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, ques-
       t,ion,,-ratiglng   from log ‘to o,ne dollar,   a8 above lndi-
       ci&&+       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        %?hlarule vat3held
    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 Tt $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 un-
der 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 of-
fers sufficient   element of ohanoe to constitute   gaming.    In our
opinion,   the machine is a gaming device contrary to publio pol-
Log 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 pro-
         hibited by   Article  619, V.P.C.
                                              Yours very truly
APPROVED:                                        PRICE DAI’iIEL
                                              At to%ne y General
Ned blcDan~ls1
State Affairs  Division
Everett Hutohinson
Executive Assistant
Charles D. Mathews
First Assistant
JSM/rt
