 

ATTORNEY GENERAL oF TEXAS
G R E G A B B O T T

February 27, 2012

The Honorable Lisa Pence Opinion No. GA-0913

Erath County Attorney

100 West Washington Re: Whether an eight-liner machine that dispenses
Stephenville, Texas 76401 tickets for prizes redeemable only at the bingo hall

in which the machine is located is a “gambling
device” within the meaning of section 47.01(4) of
the Penal Code (RQ-0995-GA)

Dear Ms. Pence:

You write seeking an opinion about eight-liner machines at a bingo hall.1 Your request letter
indicates that a “local bingo hall wants to install eight-liner machines that dispense tickets that can
be redeemed only at the bingo hall, only on the night in question, for items such as daubers, bingo
play cards, and items from the concession stand.” Request Letter at l. According to your letter, the
“tickets would have no value outside of the bingo hall.” Id. You believe the bingo hall’s proposed
eight liner operations “would not be in compliance with the subsection 47.01(4)(B) exception.” Id.
Thus, you ask this office to “provide a more detailed explanation of items that would fall within
the ‘noncash merchandise prize, toy or novelty exception”’ in Penal Code subsection 47.01(4)(B).
Id. at 2.

Chapter 47 of the Penal Code creates criminal offenses involving possession or use of a
“gambling device.” See TEX. PENAL CODE ANN. §§ 47.02(a)(3) (West 2011) (providing that “[a]
person commits an offense if he . . . plays and bets for money or other thing of value at any game
played with . . . any other gambling device”), 47.06(a) (“A person commits an offense if, with the
intent to further gambling, he knowingly owns, manufactures, transfers, or possesses any gambling
device that he knows is designed for gambling purposes or any equipment that he knows is designed
as a subassembly or essential part of a gambling device.”). A “gambling device” is

 

1See Letter from Honorable Lisa Pence, Erath County Attorney, to Honorable Greg Abbott, Attorney General
of Texas at 1 (Sept. 19, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml (“Request Letter”). You do not describe
the eight-liner machines at issue, but typically an eight~liner machine 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) at 2 (quoting Hardy v. State, 102 S.W.3d 123, 125 (Tex. 2003)).

The Honorable Lisa Pence - Page 2 (GA-0913)

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

Id. § 47.01(4); see also id. § 47.01(4)(A) (providing a nonexclusive list of specific items that are
gambling devices). As a general matter, eight-liner machines meet the statutory definition of an
illegal “gambling device.” See Hardy v. State, 102 S.W.3d 123, 131 (Tex. 2003) (“In this case, the
Hardy’s do not contend that the seized eight-liners are not gambling devices under the general
definition in 47.01(4).”).

As your request letter notes, the Penal Code contains a limited exception that excludes certain
devices that might otherwise meet the statutory definition of a “ gamblin g device.” Request Letter
at l. That limited exception excludes devices that meet the following requirements:

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.

TEX. PENAL CODE ANN. § 47.01(4)(B) (West 201 1). Thus, you ask whether the eight-liner machines
described in your request letter meet the requirements provided in subsection 47.01(4)(B) of the
Penal Code and are therefore not illegal gambling devices. See Request Letter at 2.

According to your request letter, the bingo hall proposes to install eight-liner machines that
will dispense tickets which are redeemable for bingo cards at the location where the machines would
be installed. See id. at l. Limiting the eight liners’ redemption tickets to the bingo hall where the
machines are located does not meet the requirements necessary to satisfy the Penal Code’s
subsection 47.01(4)(B) exclusion. We previously opined that gift certificates redeemable at only a
bingo establishment are still analogous to gift certificates that the Texas Supreme Court has
determined to be outside the scope of the subsection 47.01(4)(B) exclusion. See Tex. Att’y Gen. Op.
No. GA-0812 (2010) at 4; see also Hardy, 102 S.W.3d at 132 (concluding that a 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”).

We have also previously opined that awards redeemable for bingo cards, card minding
devices, and pull-tab bingo are analogous to awarding cash or credit for further play. Tex. Att’y Gen.

The Honorable Lisa Pence - Page 3 (GA-0913)

Op. No. GA-OS 12 (2010) at 3. Texas courts have held that awarding cash or credit for further play
does not fall within the subsection 47.01(4)(B) exclusion. Hardy, 102 S.W.3d at 132; In re Fifty-
One Gambling Devices, 298 S.W.3d 768, 778 (Tex. App._Amarillo 2009, pet. denied); Elmore v.
State, 116 S.W.3d 809, 813 (Tex. App._Fort Worth 2003, pet. ref’d). Citing appellate court
decisions and the Texas Supreme Court in Hardy, Opinion GA-0812 found that awarding credit for
further play constitutes an award of value that is not a “noncash” merchandise prize, toy or novelty.
See Tex. Att’y Gen. Op. No. GA-0812 (2010) at 3-4. We determined in Opinion GA-0812 that
awards redeemable for bingo cards are analogous to the exchange of a ticket for further play
discussed in the Hardy decision. See id. at 4. Accordingly, we concluded that an eight-liner machine
awarding credit for further bingo play does not satisfy subsection 47.01(4)(B) and therefore does not
qualify for the Penal Code’s exclusionary provision. See id. The conclusion reached in Opinion
GA-08 12 applies to your question to the extent you inquire about eight-liner machines in a bingo hall
dispensing tickets redeemable for bingo play cards.

Under the express language of the Penal Code, subsection 47.01(4)(B) excludes only a
contrivance or machine that rewards players “exclasively with noncash merchandise prizes, toys,
or novelties, or a representation of value redeemable for those items.” TEX. PENAL CODE ANN.
§ 47.01(4)(B) (West2011) (emphasis added); see also Hardy, 102 S.W.3d at 131 (“Eight-liners fall
within the statutory exclusion only if they reward players ‘exclusively with noncash merchandise
prizes, toys, or novelties, or a representation of value redeemable for those items.”’). The fact that
the eight-liner machines you describe issue tickets redeemable for bingo play cards_which we have
concluded do not constitute noncash merchandise prizes, toys, or novelties_necessarily means that
the machines do not reward players “exclasively with noncash merchandise prizes, toys, or novelties,
or a representation of value redeemable for those items.” TEX. PENAL CODE ANN. § 47.01(4)(B)
(West 2011) (emphasis added). Accordingly, the eight-liner machines here are not included within
the scope of subsection 47.01(4)(B) and are, therefore, illegal gambling devices under the Penal
Code.2

Your question focuses on whether the eight-liner machines described in your letter constitute
illegal gambling devices. See Request Letter at 1-2. However, given the Penal Code’s broad
prohibition on gambling devices_and narrow exclusionary provisions-the very nature of an eight-
liner machine renders it highly suspect as a legal matter. For a device to qualify for the Penal Code’ s
narrow exception, it must satisfy the plain language of subsection 47.01(4)(B), which requires that
the machine be “designed, made, and adapted solely for bona fide amusement purposes.” TEX.
PENAL CODE ANN. § 47.01(4)(B) (West 2011); see TEX. GOV’T CODE ANN. § 311.011(a) (West
2005) (requiring words and phrases to be construed according to common usage). Absent a Texas
judicial opinion construing this phrase, we consider the definitions of its terms in order to determine
subsection 47.01(4)(B)’s meaning and scope. One Texas court has construed the term “designed”

 

2Because we conclude that the machines here 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. Such
an inquiry would involve numerous fact questions inappropriate for an attorney general opinion. See e.g., Tex. Att’y
Gen. Op. No. GA-0751 (2009) at l (“This office does not resolve questions of fact in the opinion process.”).

The Honorable Lisa Pence - Page 4 (GA-0913)

to mean “intended.” Williams v. State, 264 S.W.2d 731, 733 (Tex. Crim. App. 1954); see also IV
OXFORD ENGLISH DICTIONARY 519 (2d ed. 1989) (defining “design” to mean “purpose, aim,
intention”). “Made” means “‘produced or manufactured artificially’ and ‘put together of various
ingredients.”’ In re Bigler, L.P., 458 B.R. 345, 376 (Bankr. S.D. Tex. 2011); see IX OXFORD
ENGLISH DICTIONARY 174 (2d ed. 1989) (defining “made” to mean “produced or obtained by
‘making’ as distinguished from other modes of origin or acquisition”). The term “adapted” means
“‘to make suitable or fit (as in for a particular use, purpose, or situation), by means of physical
change, modification, or alteration.”’ Chopps v. State, 79 S.W.3d 258, 263 (Tex. App._Houston
[14th Dist.] 2002, no pet.) (citation omitted); see IOXFORD ENGLISH DICTIONARY 139 (2d ed. 1989)
(defining “adapted” to mean “fitted; fit suitable” and “modified so as to suit new conditions”). Thus,
for an eight-liner machine to be legal, the machine must be intended, produced and made fit solely
for bona fide amusement purposes.

Texas courts have defined the word “solely” to mean “singly; alone; only; without another.”
Consol. Una'erwriters v. Wilson, 111 S.W.2d 865, 866 (Tex. Civ. App.--Texarkana 1937, writ
dism’d) (citation omitted), Standard Life &Accidem Ins. Co. v. Roberts, 318 S.W.2d 757, 761 (Tex.
Civ. App._-Amarillo 1958, writ dism’d); see also Tex. Att’y Gen. Op. No. H-943 (1977) at 2.
“Bona fide” means “made in good faith; without fraud or deceit.” BLACK’S LAW DICTIONARY 199
(9th ed. 2009). Finally, “‘amusement”’ means “‘a pastime, an entertainment Hegman v. State,
227 S.W. 954, 957 (Tex. Crim. App. 1920) (citation omitted); see IOXFORD ENGLISH DICTIONARY
421 (2d ed. 1989) (defining “amusement” to mean “[t]he action of amusing, or a thing done to
amuse”). Putting these definitions together, subsection 47.01(4)(B)’s exclusion includes only those
machines that are in good faith intended, produced, and made fit only for the single, limited purpose
of entertainment Thus, for an eight-liner machine to qualify for the exclusion under the Penal Code,
the device must in good faith be intended, produced, and made fit for the single purpose of
entertainment See cf. House Research Organization, Bill Analysis, Tex. S.B. 522, 73d Leg., R.S.
(1993) at 2 (stating that subsection 47.01(4)(B) was added to “ensure that video poker games and
other electronic gambling games would fall under the gambling device definition”). Accordingly,
if an eight-liner machine is designed, made or adapted as anything other than a pure amusement
device, the machine cannot meet the requirement of subsection 47.01(4)(B) and is therefore illegal.

,”

Further, we note that Texas courts have previously found that an eight-liner machine may be
used for gambling purposes. See Hardy, 102 S.W.3d at 132; see also State v. One Super Cherry
Master Via'eo 8-LinerMach., 102 S.W.3d 132, 133 (Tex. 2003) (holding eight-liner machines in case
constituted gambling devices); Elmore, 116 S.W.3d at 806 (same). Thus, even if an eight-liner
machine may have some entertainment value, if it was nonetheless created or produced with the
purpose or intention that it could also serve gambling purposes, then the machine’s sole and
exclusive purpose is not entertainment Accordingly, it is unlikely eight-liner machines satisfy the
standard for subsection 47.01(4)(B)’s limited exclusion. Such machines are therefore likely to
constitute illegal gambling devices under all circumstances

The Honorable Lisa Pence - Page 5 (GA'0913)

S_MB_Y

Because the eight-liner machines described in your request
issue tickets redeemable for items that do not constitute noncash
merchandise prizes, toys, or novelties, the machines do not meet the
standard for the illegal gambling device exception provided in
subsection 47.01(4)(B), Penal Code, Accordingly, the eight-liner
machines are illegal gambling devices under the Penal Code.

If an eight-liner machine is designed, made or adapted as
anything other than a pure amusement device, the machine cannot
meet the requirement of subsection 47.01(4)(B) and is therefore
illegal.

Very truly yours,

 

Attorney Gene al of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JAS ON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

