                 TEE     ATTORNEY           GENERAL
                             OF   TEXAS
GERALD C. MANN               AUSTIN   aa,TEXAS


Honorable R.T. Burns                             June 6, 1939
County Attorney
Walker County
Huntsville, Texas
Dear Sir:                         Opinion NO. o-659
                                  Re: Is the mach~inedescribed a gambling
                                       device?
              Your request for an opinion on the above stated question
has been received by this office.
             Your letter reads, in part, as follows:
              "Article 619 of the Penal Code of Texas
    prohibits the exhibiting of machines for gambling
    purposes.
              "We have a party here in Huntsville that
     has a machine where the player places a nlckle in
     the machine and if h,e strikes a lucky hole he gets
     more plays and if he does not strike a lucky hole
     he has to contribute anoth~ernickle if he is success-
     ful."
              We quote from your letter of June 3, 1939, clarifying the
above paragraphs as follows:
              'The sheriff informs me and also the operator
     of the machine informs me that if a man played a nickle'
     in th,emach,ine,and if he struck a lucky hole, he would
     get three more plays, and if he did not strike a lucky
     hole, he would have to contribute another nickle. I am
     informed by the sheriff that at times they get all the
     way from eigh~tto fifty or sixty free playg and If the
     person does not want to play them at that time, they
     give them a receipt for the plays on a slip of paper, I
     have been unable to ascertain whether they pay for
     these extra plays in money or not, but it is the con-
     sensus of opinion of,,thesheriff's department that they
     do pay off in money.
                 Article 619 of the penal Code reads 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 ga~mingtable, bank, wheel or device of any
     name or description whatever, or any table, bank, wheel
Honorable R.T. Burns,    June 6,   1939,   Page 2                 o-659

       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, regardless
       of the name or whether named or not, he shall be con-
       fined in the penitentiary not less than two nor more
       than four years regardless of whether any of the above
       mentioned games, tables, banks, wheels, devices or slot
       machines are licensed by law or not, Any such table,
       bank, wheel, machine or device shall be considered as
       uaed for gaming, if money or anything of value is bet
       thereon."
                Article 620 of the Penal Code reads as follows:
                "It being intended by the foregoing Article to
       include every species of gaming device known by the name
       of table or bank, of every kind whatever, this provision
       shall be construed to include Any and all games which in
       common language are said to be played, dealt, kept or
       exhibited.
              The constituent elements of a gaming table or a bank are
as follows: It Is a game, it has a keeper, dealer or exhibitor; it is
based on the principle of theeone against the many, the keeper, dealer
or exh~ibitoragainst the bettors, directly or indirectly; and must be
exhibited, that is, displayed for the purpose of obtaining bettors.
Starnes vs. State, 21 Tex. 692; Lyle vs. State, 30 Cr. Rep. 11.8; Averheart
vs. State, 18 S.W. 416; Bell vs. State, 22 S.W. 687; Shower vs. State,
33 S.W. 107%.
                We quote from the case of Sternes vs. State, supra, as
follows:
                "Any change, cover, disguise, or subterfuge
       in any such ingredients, or in relation to the struc-
       ture upon which the game: is exhibited, or the instru-
       ment. by which the result is developed, for the purpose
       of evasion, will not change the character of the game.
       It Is difficult to imagine any species of table or
       bank, or a gaming device resembling either, that is
       kept for gaming, that would not be included in the
       clauses of the code."
              It matters not how the table or the bank is constructed
or operated if it is kept or exhibited for gaming purposes. Whether
or not the table was designed for gaming purposes is immaterial; it is
the game or character of play on it thatdetermines its status. Doyle
vs. State, 19 Cr. Rep. 410; Estes vs. State, 10 Tex. 300.
              In the cases of Carroll vs. State, 81 S.W. 294. Brogden
vs. State, 80 S.W. 387';and Houghton vs. Flacks, 93 S.W. (2dj 781, it
was held among other things that it is unnecessary to prove that money
or anythlng of value was bet upon the game.
              In the cases of Adams, et al. vs. Antonio, 88 S.W. (2d)
504; Roberts, et al. IS Gossett, et al., 8% S.W. (2d) 507; and Harrington
vs. Fla~cks,93 S.W. (2d) 781, and a number of otherscases which we do not
deem necessary to cite here, it was held that marble machines were in
the class of gaming tables and banks as prohibited by Article 619 of
the Penal Code.
              By virtue of the foregoing authorities, you are respect-
fully advised that it is the opinion of this department that the
machine described and the purpose for which it is exhibited constitutes
a gambling or gaming device.
              Trusting that the foregoing answers your inquiry, we
remain
                                 Yours very truly
                                  ATTORNEY GENERAL OF TEXAS
                                 By s/ Ardell Williams
                                       Ardell Williams
                                       Assistant

AW:FG:wc

APPROVED:
s/ GERALD C. MANN
A'FPORNEYGENERAL OF TEXAS

Approved Opinion Committee By s/RQB Chairman
