               OFFICE   OF   THE   ATTORNEY    OENERAL   OF TEXAS

                                      AUSTIN

*-   c. MANN


      Saorzble CU.& A. Zaarbaa
      County Attorm;
      Wrath Comty
      St3~hzmlllo. Texas
       EGar sir:




                                                                                 f
                                                        rest all the persom
                                                        a pne of cll3nce,in-
                                                     0 o-vnzras *Jellas his

                                                         of goxr request for
       our oplni
                                               vhich 52ace oTflc,Grs    are      ._
                                                rarrants      ai+e,fcllerallg
                                                    of Crkinal Procedure,
                                                         Spoclal provisions of
                                         rests   for     certain violations;
                                 motor vehicles, wd other vlolatlom of
                             otar vehicles (Art. 603, P.C.);unlavflil
                                   ka7, IbAd); etc.,'but ye Tend XI0such
                                 &hMlzlng the arrest vithout varraat of
                                 ations O? thG 3fAtUt03 a&r&i +D.iILg.
                                 11, PollalOode, Articles 615 to 642.
                Article 212, Code 320Czi=cinalP~ocedwe, 1925, zoads
       as fcllavsr
    Honorable Cl%t A. %&am,   Page 2



             "A peace officer or any other person,
        my, without varrant, arrest an offender whsn
        the offense is comltted in his presence or
        vlthln his vlev, if the offense 1s one classed
        as a felony, or as Ian offense againet the pub-
        110 peace."
              This Jtatute, which is controllingin most lustmce3,
    13 very plain - in order to justify an arrest under it the
    offense must amount either to a felony or an offense against
    the public peace. 4 Tex. Jur. 743, 0 5 and case3 cited ~IZI
    notes. The circumtances must be such a3 to varrant a rea-
    sonable and cautious man &I the.belief that a felony is being
    connltted. Xoore v. State, 107 TPX. Cr. R. 24, 294 9. W. 550.
              Article 618 of the Penal Code makes it a mf3denetior
    to bet or vager any money or ctker thing of value at any game
    played with dice. For violations of this particular Article
    warrants are essential to perfect a legal arrest.
              Articles 625, 626 and 627 of the Paaal coda 0f
    1325 are taken from Artiole 559 of the lgll.revision, and
    condenn as a felony the keeping of a placa for the purpose
    of beF?g used as a place to bet, vager or amble vlth various
    named things, among them dice. Article 628 i&cm it a mls-
    demeanor for one to permit such games to be played 3n his
    hou3e, or in a house uuder his control, the said house baiag
    qither a publi.o.placeor ap,purtenantthereto.
               The Court of Crininal Appeals has seemlngly encounter-
    ed considerable dlffloulty in construing these several provl-
    slons, but apparentlyhas mde a distinction "betveen petitting
    a casual game on one's pretises snd that of permitting premises
    to be kept for the purpose of gaming." Frldge v. State, 90
    Tex. Cr. R. 75, 233 9. W. 979. See alao the ca3e of Francis
    v. State, go Tex, Cr. R. 67, 233 S. Y. 974. In the latter
    case we lnterppet the opinicm to hold that It vas not the in-
    tent of the Legislature to denounce as a felony the acts of
    one vho mrely suffered the playing of a prohibited game in
    M.&h;Ee, but the proof must show that ttfepretises were kept
              puyO3e of being used as a place to gamble. We like-
    v‘ise direct your attention to the cases Of Born   Vs. State,




i
Ronarable Clint A. Barham, Page 3


117 Tex, cr. R. 116, 33 9. W. (2d) 439   and   Grundy v. State,
129 Tax. Cr. R. 93, 83 3. W. (26) 991.
         The presence of para hernalia and. equipment
                                              _    --_ ror
gaubllng (as additlanal proofP vould seem to be eurrlclent
to sustain a felony comlction sunderthe faots submitted
                    Reese v. State (Tex. Cr. A.) 143 S. V.

         In the Reese ca3e an attack vas made on the suf-
ficiency of the search varrant wed by the offloers. The
Court held that lnasmch as said officers sav gambling going
on and gambling paraphernaliain the house before entering
the house, they had the right, without a warrant, to arrest
the person vho controlled and occupied it. 3ee also ‘Kavang
v. State (Tex. Cr. A.) 147 S. W. (2d) 262.
         It la our opinion from a careful reading of the
above and mauy other cases that ¶.fan officer happened to
see an owner of a private residence and several guests en-
gaged in a dice game in the resldence,neventhough vagerlng
on the outoome of the “pne, of chawe,     absent other evidence
of the residence being kept for the purpose of being    wed
a3 a place to gamble” there vould be no justlflcationfor
arre3t of any of the participantsuntil a varrant of arrest
had been obtained. If, hovever, from the existence of
gmbling paraphernalia, or other facts, suoh residence vas
belzigoperated as a place for the purpose   of being used aa
a place to bet and vager, and to gamble vith dice, the
arrest of the.ovner votid .be legal utiderthe provisions of
Article 212, Code of Crlmlnsl Procedme, for 8 felony being
commltted in the presence of the officer. Reese v. State,
stlpra.
         If the extent of the conduct of the “guests” of
the ovner was to do no more than to participatein the game
as players, such “guests” vould not be guilty of felonious
canduct and a warrant vould be essential to legal arr83t.
To sustain 8 convlotlon for keeping of premises for use as
a gambling hou38, it must be shovn that the accused had some
interest In the place in vhlch prohibited games Yore playedj
~evl3.v. state, 136 Tex. Cr. R. 105, 124 9. W. (26) 121.
Bonorable Clint A. Bsrhsm, Page 4


Ye do not believe one uerely playing at 8 proh#lted game
could be properly convicted as a priaclpsl vlth one
charged with keeping a place to be used as a place for
gambllrig. Therefore, such persons could only be legally
arrested vlth a varrant.
                                Your3   very truly
