          GERALD          C. MANN
                                               Au-       11. TEXAS
,x--xx
         *-BZNFI      nF4N-L

                                                 May   16, 1939


          Hon. Sam Bain                                  Opinion    No. O-792
          Cpunty Attorney
          Leon County                                    Re:    Pool halls.
          Centerville, Texas

          Dear     Sir:

                          This Department    is in rec’eipt of your letter of May 9,
          1939. wherein jou request our opinion as to whether or not the pro-
         posed enterprise,    set out in your letter, would be a pool hall and would
         be prohibited by the terms of Article     653 of the Penal Code of Texas.
         .We quotefrom.   your letter as follows:

                                 *We have a situation    as follows    ‘in this city:

                              “The owner of a building has the same and is ‘not
                     being used for any other purpose.    He wishes to place two
                     pool tables and a domino table in this building and form a
                     club of ,members who will pay dues of approximately        $1.00
                     each per month; A large part of the dues wiIl;necessaiily
                     go toa’person   to take care of the tables andjanitor’ser~
                     vice.:,~

                                 “There will   be nothing else in same and nothing
                     for sale.     Members     will pay by the month and not by the
                     game.

                             “Would this be prohibited          by the terms     of Art.    653
                     of the Penal Code ? w

                               Article   653 of the Penal      Code of Texas     reads     as follows:

                             “Operating   pool hall. Whoever    shall operate or main-
                     tain a pool ball, as that term is.defined   by the laws of this
                     State, shall be fined not less than twenty-five   nor more than
                     one hundred dollars    or be confined in jail not lessthan  one
                     ‘month nor more than one year.      Each day of such violation
                     shall be a separate   offense.”

                               Article   4668, Revised     Civil   Statutes   of Texas     reads   as    .*
          follows:

                             “No personacting    for himself ,or’others shall main-
                     tain or operate a pool ball within this State. The term ‘pool
Hon. Sam Bain,    May   16. 1939, fige     2 (O-792)




       hall,’ as used herein, includes any room, hall, building
        or part thereof, tent or enclosure         of any kind similar      to
       those named, or any enclosed open space; in which are
       exhiiited   for hire, revenue, fees or gain of any kind, or
       for.advertising     purposes     of any kind, any pool or billiard
       table or stand or structure         of any kind or character       on
       which may be played pool or billiards,            or any game simi-
       lar to pool or billiards      played with balls, cues or pins or
       any similar     device.    Any such table, stand or structure           of
       any kind used or exhibited in connection with any place
       where goods, wares or merchandise              or other things of
       value are sold or given away or wher’e or upon which any
        money or thing of value is paid or exchanged shall be re-
       garded as a place where is exhibited the same for hire,
       revenue or gain.       The habitual, actual, or contemplated
       use of any premises,        place, room. building or part tbere-
       of or tent, or any kind or character          of enclosure     similar
       to those named., or any uninclosed          open space for the pur-
       pose of exhibiting any table, stand or structure             of any kind
       described    in this article may be enjoined at the suit of
       either the Sta$e or any citinen thereof.           The Attorney Gen-
       .eral of this State, or any district er county attorney, or
       any citizen of any county in wh&ch any pool hall is main-
       tained, operated or contemplated           may, either in term time
        or vacation, apply tothe district judge of the district in
       which is located the place where such pool hall is m&n-
       tamed. operated or contemplated,            or to.any district judge
        in Travis County. for an injunction to prohibit the mafn-
       tenance and operation of any such pool hall. Such judge
        upon presentation      of a petition for suc~h injunction shall
        issue a temporary       injunction or restraining       order and. if
       ‘upon~final hearing thereof the fact be shown.tbat the de-
       ,fendant is guilty of keeping. maintaining,          or operating a
        pool hall, or of contempiating        such act, the court before
       which the,case is tried shall grant a permanent              injunction
        against such parity as prayed for in the petition.            Any per-
        son operating    or contemplating       the operation of any pool
        hall in violation of any provision        of this article, ,or anyone
       raiding or abetting such person may be made a party defend-
        ‘ant in such suit:?

                On February   22. 1919. this Department  held in an opinion
written by Hon. John C. Wall, Assistant   Attorney General of Texas, to
Hon. Barton H, Royson. that a canteen of a company of United States Ma-
,rine Corps may not operate pool tablesand    charge soldiers  a small fee
therefor.  even though the fee goes back into the canteen fund. We quote
from said opinion as follows:

               :‘The fees paid~ by the soldiers for the use of the
       pool tables mentioned in your letter would constitute
‘




    Han   Sam   Bain.   May   16, 1939, Page    3 (O-792)



             ‘fees or gains of any kind’ as those terms are used in
             the act. They are things of value and ‘go to the can-
             teen fund,,which fund is used for the purchase of sup-
             plies or amusements.’    ,.

                       “You will readily see that to make a.different
             holding you would permit a person,or        ~association of
             persons to rent a building or hall, purchase ~billiard
             and pool tables and operate the same for hire, provid--
             ed only that the fees charged for the use of such pool
             or billiard   tables were used for the payment of the rent
             of such building,or     hall, the purchases price of the.tab.les.,
             the up-keep of. the tables and the care,and supervision:         ,. :
             of the.building    or :hall, and this would defeat:the evident!.
             purpose and .intention of the act. ‘”

                      On March 3 1,‘1920. this Department   held in.a confer’ence
    opinion, written by E. F. Smith, Assistant     Attorney .General;~add,res~sed
    to A. T. Dribble,   which held that a s~o-called club ~which charges a mem-
    bership fee or annual or monthly dues, and its principal       busines~s is to
    afford an opportunity to its members     to play Bool hand billiards,   was a
    public pool hall within the meaning of Section 1,. of.Gbapter      14, Acts of
    the 36th Legislature,   and therefore,  unlawful:   We quote from said opin-
    ion as follows:

                        “I have your.~letter .of March 29th. addressed        to the
             :Attorney General, wherein you request an opinion of this
              Department      with ,reference   to clubs maintaining and oper -
            ~atfng pool and billiard      tables.
                                                       .,
                        “In reply, you are respectfuDy         advised that it is
              a violation of the law for anyone to maintain and operate
              pool and billiard     tables for .hire;that    is. to charge a fee
          ~~ for the use of the facilities      .afforded.for, playing the game
              of pool or billiards,     or tommaintain and operate Poole and
              billiard   tables in connection with any place of .busiuess
             where ,goods. wares or merchandise             or’other~ things of
              value are sold ore given away;. or to maintain and operate
              pool and billiard     tables for.advertising      purposes.

                      ‘A bona fide’social~or~ ,busine,ss club     may main-
             tain and ope’rate pool,and:‘billiard   tables,for    the use of
             its members..provided     that .no fee is charged     for playing
             the ~game and the tables are not operated in         connection
             with. the sale or the .giving ~away of anything      of value, or
             for advertising  purposes.

                     ?By bona     fide club, as above used, we mean a so-
             cial or business     organization   which maintains and operates
             pool and billiard    tablesmerely     as. an incident to its organi-
             zation and not as     the principal  purpose ofthe organization.
                                                                                               ’   .




Hon. Sam Bain,     May   16. 1939, Page    4 (O-792)




        It would be unlawful .for a, club,,to maintain and operate
        pool and billiard tables, which was organieed.for      the pur-
        pose or whose principal    purpose in organizing ;would Abe
        to afford its members    an opportunity to play pool and bil-
        liards and which charged a fee for membership        or that
        charged monthly or annual dues. Such an organization
        would be conducting a pool hall for hire just as much so
        as if a fee was charged for the privilege    of playing each
        game.

                  ‘In determining   whether a club is a~ ‘bona fide,’
         club or merely an attempt to evade the law prohibiting
         puol halls, a good test is: Would the club be organized
        and maintained if the game of pool and billiards       were
        omitted from the amusement         offered the members 7 Jf
        -the pool and billiard   tables are merely incidental to the
        .main purpose of the,club, their removal would not ser-
        iously affect the purposes for which the club was organized.
         On’the-other   hand, if the purpose of the club is, merely to
        ~afford an opportun‘ity for its members. to play pool .and bil-
        .liards. the removal    of the pool and billiard tables from the
         clubroom woulddiscard        the purpose for which the club was
         organized.

                 .*By applying this test, we are of the opin%on’that
         the prosecuting   officers  of the state will have no diffi-
        ‘culty in determining    for themselves   or ~of convincing the
        ,courts and juries of the -state as to whether’ or not a club
         is maintaining pool and billiard, tables in violati:on of Chap-
         ter 14. Acts of the Regular Sess~ion of the 36th Legislature,
        known as the ‘Pool.Hall      Law.‘”

                 In the case of McCombs         et al vs. State, 48 SW (2nd) 665,
the state sought an injunction against h&Combs            et al to enjoin them from
operating a pool hall under Artic~le 4668, supra.           The defendants answered
that they were employees     and managers        of tbe Tyler .Recreational      Club,
duly organized,   maintained and operated as a recreational            c,lub for the ex-
clusive use ,ofthe -membns      ~of x&id cfuband      not to serve the general pub-
lic. The evidencedisclosed      thatthe     alleged club~~~ocured       an outfit con-
sisting of sixpooltables,    ‘one snuoker ‘table;-Darobuwling        alleys, a loung-
ing parlo,r, readingroom.    .desks, chairs:-and       ~etc.’ Only members      of the
club could use the pool and ,snooker tables for which they paid membership
fees.   The witness,   McCombs,     testifying in his own behalf swore that no
fee was paid directly~for   the use of the.pool tables.         There was no evidence
offered to show that anything was sold on the premises.,             The appellate     court
used the following language:

                  “We think enough-of the testimony to authorize a find-
         ing that the association  in question was a.sham and a subter-
        -fuge to evade the prohibitions ,in said Article 4668.1~
    .
_




        Hon. Sam Bain,    May   16, 1939. Page   5 (O-792)




                         The case of Vaiden et al vs. State, 52 SW (2nd) 3i8. ex-
        pressly  approves the holding in the McCombs     case above.  The court in
        the Vaiden case uses the following language:

                          “It is appropriate   to add, that it is our opinion,
                aside from the reasoning        in the Countee case (44 SW
                2nd 994) that the facts in tbis case bring it squarely
                within the prohibition     of the statute, where it appears
                from the record that appellant ‘acting’ both for ‘him-
                self’ and ‘others’,    ‘maintained’ (and) operates a ‘pool
                hall’, that is a ‘room* . . . in which are exhibited for
                hire, revenue, fees or gains of any kind . . . any pool
                or billiard    table.”

                        Article  4668, supra, which defines pool halls, is a very
        broad and comprehensive      statute.    The Legislature   in writing this statute
        undoubtedly took into consideration       that ingenious human beings would
        doubtless attempt to evade this statute by sham, evasion and subterfuge,
        and in order to prevent this evascon, the Legislature        therefore, set up
        the all encompassive    provisions    in this statute for the purpose of accom-
        plishing the purposes desired and to prevent and cure the “pool hall evils.”

                         You are therefore,  respectfully   advised that it is the opin-
        ion of this Department   that the owner of the building mentioned in your let-
        ter who proposed to place two pool tables and a domino table therein, forms
        a club of members    who would pay dues of approximately      $1.00 each per
        mohth and not by the game, a large part of the money going to a person to
        take care of the tables and janitor service.    with nothing else in the build-
        ing and nothing for sale, would be operating and maintaining a pool hall as
        defined by Article 4668, RevisedCivil     Statutes of Texas. and would be in
        violation of Article  653, Penal Code of Texas.

                         Trusting   that this answers    your inquiry.    we are

                                                 Very    truly   yours

                                                 ATTORNEYGENEULOF                   TEXAS

                                                 By     /s/ Wm.    J. Fanning

                                                                         Wm.    J. Fanning
                                                                                Assistant

        W JF:AW/cm                                                 Approved
                                                                 Opinion Committee
        APPROVED:                                                B-y   /s/ GRL
        /s/ Gerald C. Mann                                            Cbalrman
        ATTORNEYGENERALOF               TEXAS
