                               January    27, 1950


Hon. Stewart W. Hellman
Criminal District Attorney
Fort Worth, Texas                Opinion No. V-991

                                 Re:     The legality of operating the
                                         amusement    device called the
Dear   Sir:                              “Hollycrane”   in Texas.

              Your   request   for an opinion   reads   in part as follows:




                ‘“We are advised that the “HOLLYC,RANE”
        consists    of a wooden cabinet 48 inches by 32 inches,
       which is enclosed on two sides and the top with
        crystal-clear     glass, which provides perfect vision
       without distortion.       The cabinet contains a portable
        playing field 30 inches long by 20 inches wide, the
        floor of which is dressed with colored sea shells,
        upon which are laid small metal animals.           The play-
        ing field is illuminated by flourescent      lights, giving
        the player a perfect view of the field and all operat-
        ing features of the machine,       and which, in the opera-
       tion of the machine,       permits the player to use his own
       judgment of depth perception by the operation of two ;
       electric    controls,   one each for forward and cross mo-
       tion. The skill with which these electric         control
       levers are manipulated        regulates  and controls the
       operation of the crane.        The levers are provided at
       the front of the machine,       one lever enables the play-
       er to move the crane in a forward motion along the
       length of the playing field from one end to the other
       or to any desired position on said playing field.         The
       other lever enables the player to move the crane to
       the right across the playing field entirely from one
        side to the other or to any desired location on the
       playing field.



             ““Upon reaching the desired location either for-
       ward or sideward or both, the crane, automatically
       lowers to the playing field, upon which are laid the
Hon. Stewart      W. Hellman,    page 2 (V-991)




          metal animals,   and the crane then depending on
          the skill and accuracy of the player, picks up one
          of the metal animals.   The crane then automatically
          rises and returns to the starting position . . ~ *”

                 You subsequently    advised   us that:

                 “It is my understanding    that there are three types
          of the HOLLYCRANE        machine.    They are all operated
          in a similar manner, the difference      in them being the
          premiums which are given, if the operators       of said
          machines    are skillful enough to receive anything for
          their efforts.

                 ‘MACHINE    NUMBER ONE.      It is my understand&
          ing that this machine will deliver to the operator a
          premium;    which, when so operated, would be a gambling
          device and a violation of law.

                  “MACHINE   NUMBER TWO.       It is my understand-
          ing that on this machine, the operator can also receive
          free games from the machine,    if he is skillful enough
          in the operation of same.  This also would be a violation
          of law.

                 “MACHINE      NUMBER THREE.       It is my contention
          that when an operator of this machine,     in using his skill,
          comes in contact with one of the premiums,       and said
          premium is lifted by the HOLLYCRANE,          and nothing de-
          livered and no free games given, that this is not a vio-
          lation of law, but a game of skill.   This is the machine
          on which I would like to have an opinion from the Attor-
          ney General’s   office, if you think I am correct in my
          views of the matter.”

                Trade literature   submitted with your original      request   de-
scribes     the Hollycrane   and its operation as follows:

                 “Wide expanse of play-field       adds to the excitement
          of play and emphasizes      the skill-factor  which is important
          in practically  all territory   ~ ~ ~ Mirror   at end of cabinet
          creates illusion of greater-than-actual       size . D . Although
          average operating cycle is only 10 seconds, the excitement,
          suspense and skill-thrill     is so intense that players receive
          complete satisbction      and are eager to try again ~ . . -*

            You have expressed  the opinion that those models of the Hol-
lycrane described by you as “Machine No. One” and “Machine No. Two”
are gaming devices, but wish to know whether the operation of “Machine
.




    Hon. Stewart    W. Hellman,       page 3 (V-991)



    No.   Three”   violates   the gaming     laws of Texas.

                   Article    619, V.P.C.,   provides   as follows:

                  “If any person shall directly,   or as agent or
           employe for another, or through any agent or agents,
           keep or exhibit for the purpose of gaming, any policy
           game, any gaming table, bank, wheel or device of any
           name or description     whatever,  or any table, bank,
           wheel or device for the purpose of gaming which has
           no name, or any slot machine,     any pigeon hole table,
           any jenny-lind   table, or table of any kind whatsoever,
           regaidless   of the name or whether named or not, he
           shall be confined in the penitentiary    not less than two
           nor more than four years regardless       of whether any of
           the above mentioned games, tables, banks, wheels, de-
           vices or slot machines    are licensed by law or not. Any
           such table, bank, wheel, machine,     or device shall be
           considered   as used for gaming, if money or anything
           of value is bet thereon.”

                  We agree with your conclusion  that the fiirst two types
    of the Hollycrane   described  by you are gaming devices as defined by
    our statutes.   In the recent case of Hoffman v. State, 219 S.W.Zd 539
    (Tex. Civ. App. 1949), it was held:

                   “Appellant first argues that his Bridgo game
           (the ball-throwing     feature) is admittedly and in fact
           one of skill and such as the statutes against gaming
           were never intended to cover; as opposed to pure
           games of chance with associated          gambling or betting.
           We will consider the ball-tossing         device as a game
           of skill in accordance      with stipulations,   though the
           question of whether it was predominantly           of such
           character,    if open, would appear debatable.        However,
           the point need not be argued.        Our courts have son-
           strued Arts. 619, 621 and 625 as drawing no distinction
           between games of chance and games of skill, but as
           condemning all games upon which money or ‘anything
           of value’ is staked or waged on the outcome; taking the
           view, in short, that playing a game, whether of skill or
           chance, for money or ‘other thing of value’ constitutes
           gambling or gaming.        Adams v. Antonio, Tex. Civ. App.,
           88 S.W.2d 503 (writ refused);        Callison v0 State, Tex.
           Civ. App., 172 S.W.2d 772. ‘This betting on games is the
           evil our law seeks to eradicate.’         Stearnes v. State, 21
           Tex. 692, 693.     Texas courts further hold that amuse-
           ment is a ‘thing of value’ and that free games won on
           marble machines       at least are within condemnation      of
Hon. Stewart   W. Hellman,   page 4 (V-991)




      the statutes. State v. Langford,   Tex. Civ. App., 144
      S.W.2d 448; Hightower v. State, Tex. Civ. App., 156
      S,W.2d 327 (writ refused) . , . .”

             We do not believe the present statutes on gaming devices
prohibit that model of the Hollycrane  which gives no reward to the
player, and described   by you as “Machine No. Three.”     However,
actual employment    of this model as an adjunct to gaming, as by ‘side-
bets” or by separate rewards by the displayer,    for example, would
bring this model within the statutes proscribing   gaming.   Hightower,
v. State, 156 S.W.Zd 327 (Tex. Civ. App. 1941, error ref.), wherein
the court said:

             “As to the other machines    . . . it is undisputed ~:::r,:
                                                                      ;
      that none had any automatic ‘pay-off’ adjustment;         and
      that the only result from playing thereof was the smuse-
      ment of the player in securing a high score,       No testi-
      mony whatever discloses      an understanding    on%hepaTtibf
      any store proprietor    to pay ‘over the counter’ for high
      or particular   scores;  or thatany player was seen or
      permitted   to bet on the machines’ operation.      . . .

              “It would follow, therefore,   that marble machines
      of the ‘non-pay-off’    variety, as to which no evidence is
      adduced of their being used for gaming purposes at the
      time of seizure,    are not gambling devices within the in-
      hibition of above statute?; . . . An entirely different situa-
      tion would exist if, by mechanical      adjustment,  the ma-
      chines were made to pay off; or if an understanding be
      had with the proprietor      ‘over the counter’ to the same
      effect; or in case of knowledge and acquiescence        by the
      machine keeper to a wagering by players upon resulting
      scores.     The machines would then become gambling
      devices per se, placing defendants factually within the
      purview of Houghton v. Fox, supra; . . . .”

            From the above it follows that the model of the Hollycrane
which gives no reward to the player, while not per se illegal may be-
come so if it is used as an adjunct to gaming.


                              SUMMARY

             Two described models of the mechanically      oper-
      ated amusement     device known as the “Hollycrane,‘    one
      of which rewards the player in premiums      and the other
      in free games, are gaming devices under the provisions
      of Art. 619, V.P.C.    Hoffman v. State, 219 S.W.2d 539 (Tex.
      Civ. App. 1949). A third model, giving no reward to the
Hon. Stewart   W. Hellman,   page 5 (V-991)



        player, while not per se illegal may become so if used
        as an adjunct to gaming.   Hinhtower v. State, 156 S.W.
        2d 327 (Tex. Civ. App. 1941, error ref.).

                                   Yours   very truly,

                                    PRICE DANIEL
                                   Attorney General




                                              Willis   E. Gresham

APPROVED:                                          Assistants

Charles D. Mathews
Executive Assistant
     : ‘7


WEG:v
