                              January    8, 1975


The Honorable    Tom Hamilton             Opinion No.   H-   489
District Attorney
Courthouse                               Re:       Whether quarters of
Plainview,’ Texas 79072                            fraternal and veterans
                                                   organizations   and private
                                                   clubs are “private places”
                                                   within section47.02,    Penal
Dear Mr.   Hamilton:                               Code

     You have requested an opinion as to whether quarters of fraternal
and veterans’ organizations   and private clubs are “private places” within
section 47.02(b)  of the Penal Code.

    Chapter 47 of the Penal Code contains the penal provisions      proscribing
gambling and related activities.    Section 47.02(b)   provides as one element
of a defense to a gambling prosecution     that “the actor engaged in gambling
in a private place. I’ Section 47,01(7) defines a private place as:

       a place to which the public does not have access,
       and excludes,    among other places,        streets,
       highways,    restaurants,    taverns,     nightclubs,
       schools,   hospitals,  and the co-on          areas of
       apartment    houses,   hotels,   motels,     office
       buildings,   transportation    facilities   and shops.

   Article 666-15e,  Penal Auxiliary      Laws,    part of the Texas   Liquor
Control Act, defines a private club:

       (a) ‘Private  Club’ shall mean an association   of
       persons,    whether unincorporated or incorporated
       under the laws of the State of Texas,   for the
       promotion of some common object and whose mem-
       bers must be passed upon and elected as individuals,
       by a committee    or board made of members     of the
       club.




                                  p.   2213
The Honorable     Tom Hamilton,     page 2      (H-489)




The Act further    implies   that services     shall be limited     to members     and
their guests.

    The State Bar committee     which drafted the proposed             Penal    Code
discussed  the defense in question as follows:

            The committee’s   main concern is to prohibit
       social gambling in public places . . . . The defense
       is not extended to clubs and other locations that are
       only nominally private and to which, in fact, the
       public has access.
       State Bar Committee     on Revision of Penal Code.
       A Proposed Revision of Texas Penal Code at 330
       (Final Draft 1970).  See Practice Commentary.
       Penal Code § 47.02   ;;F?O6.

    The committee’s   draft of the defense was adopted by the Legislature
without change, thus it is reasonable   to assume that the Legislature  intended
the provision to have the effect the committee   said it would.

    In our opinion, whether quarters of private clubs and fraternal and veterans’
organizations  are “private places ” for purposes of establishing one element
of the defense to a gambling prosecution   under section 47.02(b) depends on
whe.th.er such quarters are in fact places to which the public does not have
acces8,   and are not only nominally private.

                              SUMMARY

           Whether the quarters    of private clubs and fraternal
       and veterans’ organizations    are “private places” for
       purposes of the defense to a gambling prosecution
       depends on whether such quarters      are in fact places
       to which the pub1i.c does not have access,    and are not
       only nominally private.
                                        Very truly yours,
                                       A




                                              Attorney    General    of Texas




                                      p.     2214
The Honorable   Tom Hamilton,     page 3        (H-489)




APPROVED:




DAVID   M.   KENDALL.   First   Assistant




Opinion Committee




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