                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                             October 22, 2010



Ms. Mary Ann Williamson, Chair                         Opinion No. GA-0812
Texas Lottery Connnission
Post Office Box 16630                                 Re: Whether bingo gift certificates and similar
Austin, Texas 78761-6630                              items constitute "noncash merchandise prizes,
                                                      toys or novelties" under section 47.01(4)(B) ofthe
The Honorable Senfronia Thompson                      Penal Code and whether certain business
Chair, Connnittee on Local and Consent                practices, which may be used by charities that
      Calendars                                       conduct bingo to maximize their net proceeds,
Texas House of Representatives                        comply with chapter 200 1, Occupations Code, and
Post Office Box 2910                                  other applicable law (RQ-0884-GA)
Austin, Texas 78768-2910

Dear Ms. Williamson and Representative Thompson:

         You each have submitted questions asking about the legality, under Texas gaming laws, of
amusement machines that award bingo merchandise. Representative Thompson asks whether the
operation of such machines "compl[ies1with Chapter 200 I, Occupations Code, and other applicable
law."[ Ms. Williamson asks whether bingo cards, card-minding devices, and pull-tab bingo, or a gift
certificate for the same, "are considered 'noncash merchandise prizes, toys or novelties' under Tex.
Penal Code § 47.01 (4)(B).,,2 Because of the similar nature ofyourrequests, we have combined them
and provide this single response.

       Under the Penal Code, "[a1person commits an offense if, with the intentto further gambling,
he knowingly owns, manufactures, transfers, or possesses any gambling device." TEx. PENAL CODE
ANN. § 47.06(a) (West 2003). "Gambling device" is defined as

               any electronic, electromechanical, or mechanical contrivance not
               excluded under Paragraph (B) that for a consideration affords the
               player an opportunity to obtain anything of value, the award of which
               is determined solely or partially by chance, even though accompanied



       iThompson Request Letter at I (available at http://www.texasattomeygeneraLgov).

       'Williamson Request Letter at I (available at http://www.texasattomeygeneraLgov).
Ms. Mary Ann Williamson - Page 2                         (GA-OSI2)
The Honorable Senfi"onia Thompson


                  by some skill, whether or not the prize is automatically paid by
                  contrivance. The term:

                          (A) includes, but is not limited to, gambling device versions
                  of bingo, keno, blackjack, lottery, roulette, video poker, or similar
                  electronic, electromechanical, or mechanical games, or facsimiles
                  thereof, that operate by chance or partially so, that as a result of the
                  play or operation of the game award credits or free games, and that
                  record the number of free games or credits so awarded and the
                  cancellation or removal of the free games or credits; and

                         (B) does not include any electronic, electromechanical, or
                  mechanical contrivance designed, made, and adapted solely for bona
                  fide amusement purposes if the contrivance rewards the player
                  exclusively with noncash merchandise prizes, toys, or novelties, or a
                  representation of value redeemable for those items, that have a
                  wholesale value available from a single play of the game or device of
                  not more than 10 times the amount charged to play the game or
                  device once or $5, whichever is less.

Id. § 47.01(4). You both explain that some amusement machines, commonly referred to as eight
liners, award coupons or tickets that are redeemable for bingo cards, card-minding devices, and pull-
tab bingo. 3 See Williamson Request Letter at 2; Thompson Request Letter at I. Some also award
bingo gift certificates that can be used to purchase the same. Williamson Request Letter at 2. Your
requests therefore require us to determine whether these awards constitute "noncash merchandise
prizes, toys, or novelties, or a representation of value redeemable for those items, that have a
wholesale value available from a single play of the game or device of not more than 10 times the
amount charged to play the game or device once or $5, whichever is less." TEx. PENAL CODE ANN.
§ 47.01(4)(B) (West 2003).

        Substantial litigation has arisen in Texas surrounding the rewards provided through eight-
liner machines and whether those rewards constitute noncash merchandise prizes. Relevant to your



         'This office has previously explained that an eight liner "is an electronic device, resembling a slot machine, on
which a person wins by 'matching symbols in one of eight lines - three horizontal, three vertical, and two diagonal. ",
Tex. Att'y Gen. Op. No. GA-0527 (2007) at2 (quoting Hardy v. State, 102 S.W.3d 123, 125 (Tex. 2003)). The Bingo
Enabling Act defmes "pull-tab bingo" as "a fonn of bingo played using tickets with perforated break-open tabs, made
of paper or paper products, the face of which is covered or otherwise hidden from view to conceal numbers, letters, or
symbols, some of which have been designated in advance as prize winners." TEX. OCC. CODE ANN. § 2001.002(24)
(West Supp. 2010). The Texas Lottery Commission has defmed "bingo card/paper" as "[a] hard card, disposable bingo
card/paper, shutter card, or any other bingo card/paper approved by the Commission." 16 TEX. ADMIN. CODE §
402.301(a)(l) (2010) (Tex. Lottery Comm'n, Bingo CardlPaper). It has defmed "card-minding device" as "[a]n
electronic or mechanical device, either portable or fixed-base, that is used by a bingo player to mark representations of
bingo card faces stored in the device." ld. § 402.302(a)(2)(A) (2010) (Tex. Lottery Comm'n, Card-Minding Systems).
Ms. Mary Ann Williamson - Page 3                        (GA-0812)
The Honorable Senfronia Thompson


requests, courts have consistently concluded that cash or credit to be used for further play is an award
of value to the recipient and not a noncash merchandise prize, toy, or novelty falling under the "fuzzy
animal" exclusion of section 47.01(4)(B). Hardy v. State, 102 S.W.3d 123,132 (Tex. 2003); In re
Fifty-One Gambling Devices, 298 S.W.3d 768, 778 (Tex. App.-Amarillo 2009, pet. denied)
(concluding that rewards of tickets that were then converted to cash by an employee and deposited
into a machine for additional play were not noncash merchandise prizes); Elmore v. State, 116
S.W.3d 809,813 (Tex. App.-Fort Worth 2003, pet. refd) (concluding that "[clash to be used for
play on another machine is not a noncash merchandise prize").

        Awards for bingo cards or pull-tab bingo are analogous to awarding credit for further play.
Although the winners may not receive awards for further play on the same machine, winners on the
eight-liner machines receive the opportunity to play bingo or pull-tab bingo for free when they would
otherwise be required to pay for that opportunity. See TEx. OCC. CODE ANN. § 2001.056(d) (West
2004) (providing that a bingo card may not be sold "at a price other than a price authorized by the
commission or a schedule adopted by the commission"). Because Texas courts have consistently
concluded that an award for further play does not fall within the statutory exception to gambling
device, we conclude that an eight liner that awards bingo cards, card-minding devices and pull-tab
bingo is not rewarding "the player exclusively with noncash merchandise prizes, toys, or novelties.,,4
TEx. PENAL CODE ANN. § 47.01(4)(B) (West 2003).

        Furthermore, to qualifY for the gambling device exclusion in section 47.0 I (4)(B), the eight
liners at issue must be "designed, made and adapted solely for bona fide amusement purposes." Id.
(emphasis added). By awarding bingo cards, card-minding devices, and pull-tab bingo, or gift
certificates for the same, an additional effect of the eight liners is to encourage individuals playing
them to play other bingo games as well. Whether the machines were designed, made and adapted
for that purpose will be a fact question that this office cannot decide. However, to the extent that
the eight liners were designed, made and adapted for the purpose of encouraging participants to play
other bingo games, they are not solely for amusement and thus are gambling devices.

        Ms. Williamson also asks whether a gift certificate issued by an organization licensed to
conduct bingo that is redeemable for bingo cards, card-minding devices and pull-tab bingo is
considered a noncash merchandise prize. Williamson Request Letter at 1. A number of Texas courts
have considered the legal status of eight-liner machines that award prizes such as gift certificates,
or tickets redeemable at various retail establishments. Those courts determined that such machines
are gambling devices and do not meet the requirement for exclusion under section 47.01 (4)(B). See
Hardy, 102 S.W.3d at 131 (addressing eight liners that awarded five-dollar gift certificates,
redeemable for merchandise at Wal Mart); State v. One Super Cherry Master Video 8-Liner
Machine, 102 S.W.3d 132, 133 (Tex. 2003) (concluding that eight liners that dispense gift
certificates redeemable at local retailers do not, as a matter of law, meet the gambling device


        'Your request suggests that the eight liners at issue each award "bingo cards or paper, electronic or mechanical
card-minding devices, and pull-tab bingo" or gift certificates redeemable for the same. Williamson Request Letter at
1 (emphasis added). We therefore address whether these items collectively constitute noncash merchandise prizes, toys,
or novelties.
Ms. Mary Ann Williamson - Page 4                        (OA-0812)
The Honorable Senfronia Thompson


exclusion under section 47.01(4)(B)). In concluding that such eight liners were gambling devices,
the Texas Supreme Court explained that the gift certificate "reward operates in the same manner as
legal tender in a retail establishment, [and] it does not qualifY as a noncash merchandise prize, toy
or novelty item." Hardy, 102 S.W.3d at 132. While the gift certificates that you describe are
redeemable only at bingo establishments, they are analogous to the gift certificates addressed in
Hardy in that they are a medium of exchange and are redeemable for merchandise that would
otherwise cost money. See id. Like the gift certificates redeemable at other retail establishments,
gift certificates used to purchase bingo cards, card-minding devices, and pull-tab bingo do not
constitute noncash merchandise prizes. Thus, an eight liner that issues such certificates does not fall
within the exception of section 47.01(4)(B) and is a gambling device, possession of which is
generally prohibited under subsection 47.06(a) ofthe Penal Code.'




         'Because we conclude that amusement machines that award bingo cards, card-minding devices and pull-tab
bingo, or gift certificates redeemable for the same, are gambling devices generally prohibited under Texas gaming laws,
we do not separately address whether they otherwise comply with chapter 2001 of the Occupations Code. We note,
however, that whether a specific machine complied with the many requirements found in that chapter would involve
multiple fact questions inappropriate for an attorney general opinion.
Ms. Mary Ann Williamson - Page 5             (GA-0812)
The Honorable Senfronia Thompson


                                      SUMMARY

                      Texas courts have repeatedly considered the legal status of
              eight-liner machines that award gift certificates redeemable at retail
              establishments or tickets redeemable for further play and have
              determined that those machines are gambling devices and do not meet
              the requirements for exclusion under subsection 47.01(4)(B) of the
              Penal Code. Similarly, a device that awards bingo cards or paper,
              card-minding devices and pull-tab bingo, or gift certificates
              redeemable for the same, is not rewarding the player exclusively with
              "noncash merchandise prizes, toys, or novelties," under subsection
              47.01(4)(B) of the Penal Code.




DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
