Hon. Homer G,arrison, Jr., Director
Department   of Public Safety
C,amp Mabry
Austin, Texas

Dear Sir:

                                       Opinion No. 0- 1947
                                       Re: Is the Department      of Public Safety
                                            authorized   to seize punch boards,
                                            tip sheets, and/or slot machines
                                            from the warehouse       or di.strib$ting
                                            point-of a person or persons in the
                                            business   of distributing   same?

           We have re.c.&iv& your            letter   requesting    the opinion of this department
upon the above stated question.

            Your      letter   reads   as follows:

            “Please   advise me whether~ or not, in your opinion, we will
     be authorized to seize punch boards, tip sheets, and/or slot ma-
     chines from the warehouse or distributing     point of a person, or I
     persons,   in the business of distributing the aforementioned   devices.

             “The aforementioned   devices, of course, are not being used
     for gambling purposes in the warehouses,     but are bking held to be
     distributed for illegal purposes.”

             We presume     that you are interested   in ascertaining    whether or not
punch boards, tip sheets, and/or slot machines         must be exhibited for the pur-
pose of gaming before they are subject to seizure,        or may they be seized from
the warehouse    or distributing   point of a person, or persons,     in the business  of
distributing  same, before they are actually distributed       and exhibited for ille-
gal purposes.

            Article      630 of the Penal      Code of Texas       provides:

            “If any person shall knowingly permit any gaming para-
     phernalia,  table, or device or equipment of a gaming house, of
     any character whatever, to remain in his p+ession       or on premises
     under his contr~ol or of which he is owner and to be used for gam-
     ing pur,po.ses,: he shall be impii&oned in jail not less than thirty
     days nor more than one year?’
                                                                             .   .




Hon. Homer   Garrison,     Jr.,   Page 2 (Opinion    No. :0;.1,947)




          Article   632 of the Penal     Code of Texas          pr,ovides:

           “Whenever    it comes to the knowledge of any sheriff or
    other peace officer, by affidavit of a reputable citizen, or
    otherwise,  that any provision of the preceding articles    of this
    chapter is being violated, such officer shall immediately      avail
    himself of all lawful means to suppress    such violation;  and he
    shall be authorized,   by any s,earch warrant that is issued by
    virtue of this law, to enter any house, room or place to be
    searched,  using such force as may be necessary      to accom-
    plish such purpose.”

          Article   636,   of the Penal Code,       provides:

            “It shall be the duty of every sheriff,      or other peace
     officer by virtue of the warrant au,thorieed by this chapter
     to seize and take into his possession       all gaming tables,
    devices and other equipments or paraphernalia            of gambling
    houses, the existence      of which has come to his knowledge
    and to immediately     file with tie justtce of the peace, county
    judge, or district judge, a written list of property seiz,ed
    designating the place where same was seized, and the owner
    of same, or the person from whom possession             was taken.
    Thereupon said justice of the peace, county or district judge
    shall note the same upon his docket and issue, or cause the
     clerk of the court to issue a written notice to the owner or
    person in whose possession        the articles   seized were fourid,
     commanding him to appear at a designated time, not earlier
     thap five days from the service of s,uch notice, and show
     cause why such articles      should not be destroyed.      . . .”

          Article   637 of the Penal     Code provides:

            “If upon a hearing of the matter referred to in the
    preceding article,    the justice of the peace, county judge or
    district judge, before whom the cans? is pending shall deter-
    mlne that the property seized is a gaming table or bank or 1s
    used as equipment or paraphernalia        for a gambling house,
    and was being used for gaming pu,rposes, he shall order same
    to be destroyed,    but any part of same may, by order of the
    court be held as evidence to be used in any case until the case
    is finally disposed of. -Property     not of that character  or not
    so used shall be ordered returned to the person entitled to
    possession    of the same.    The officer, within not less than
    fifteen nor more than thirty days from the entry of said
    ordee shall destroy all property the destruction       of which
    has b&en ordered by the court, unless the owner, lessee or
    person entitled to possession     under this law, shall, before
    the destruction of said property, flle suit to’recover      same.
Hon. Homer    Garrison,   Jr.,   Page 3 (Opinion No. 0 - 1947)




             “Sec. 2. If upon a hearing of the matter referred to in
     Article   636, Penal Code of Texas (1925) the justice of the
     peace, county judge or district judge before whom the cause
     is pending shall determine that the property seized, or any
     part thereof, is not gambling paraphernalia    per se, but that
     the same or any part thereof was used as equipment or
     paraphernalia    for a gambling house and was being used for
     gaming purposes and that said property is capable of being
     used for some legal purposes,    he may, in his discretion,
     by order of the court declare the same confiscated     and cause
     the same to be delivered to the State of Texas,    or any politi-
     cal subdivision thereof or to any State institution to be kept
     by it for its own use and benefits.

            “The officer shall show by his return the disposition
     of the property made by him     which shall be in compliance
     with the orders of the court.  Acts 1907, p. 110; Acts 1935,
     44th Leg., p. 490, Ch. 203, i 1.”

             In the case of Scott v. State, 95 SW 2d, 140 (Grim. App.) Judge
Lattimore,    in construing Article  630 of the Penal Code, supra, wrote:

             “Such said A.rticle 630, supra, seems aimed at him
     who permits gaming tables, etc., to remain on his premises,
     or on premises     of which he is owner, but which may not
     actually be in use as such gaming devices,         tables, etc., we
     have upheld misdemeanor        convictions   in cases of prosecu-
     tions under said article,    charging that the accused permitted
     these tables, devices, etc., to remain on his premlses.          See
     Abraham v. State, 118 Tex. Grim. Rep. 136, 39 SW 2d 42;
     France v. State, (Tex. Grim. App.) 39 SW 2d 43. It seems
     clear to us that said Article     630 would and could, have no
     application to any state of facts from which it appears that
     the paraphernalia,    devices,   tables, etc., mentioned or in-
     cluded in said article, were being made use of at such place
     for playing or exhibiting any game for which such devices,
     tables, etc., were usable as gambling tables and devices,,
     and upon which money or other thing of value was being bet,
     wagered or staked.”

           The above case was followe,d in the case of Graham v. State,
125 SW 2d 562, decided by the court of criminal appeals of Texas on
January 25, 1939.

            A slot machine 1s specifically   named as a gambling device in
Article  619 of the Penal Code, and although tip sheets and punch boards
are not specifically  mentioned in the Penal Code, the case of Starnes v.
State, 21 Tex. 693, holds, in effect, that it is difficult to imagine any
species of a table or a bank or gaming device that would not be included
Hon. Homer       Garrison,   Jr.,    Page 4 (Opinion No.      O-1947)




in the clauses     of the Code.

            Whether or not the device was designed for gaming purposes
is immaterial.   It is the game or character  of play on it that determines
its status. Estes v. State, 10 Tex. 300; Starnes v. State, 21 Tex. 693;
Chappel v. State, 27 Crim. Rep. 310; Bird v. State, 148 SW 738; Mills
v. Browning, 59 SW 2d 219.

            If the machine or article is a gambling device, or equipment
or paraphernalia   of any gambling house, It 1s to be destroyed.     A gamb-
ling device may be one which.is made primarily       and principally  for
gambling, such ,as a roulette wheel, and this primary and principal pur-
pose being established,   no further proof of its actual use is required:
or it may be a device which is useful for service     to law abiding society,
in which event the article itself must be shown to be actually used in
gambling to constitute it condemnable.     Mills v. Browning, 58 SW 2d
219.

           Article      1, Section    9 of the Constitution     of Texas      provides:

            “The people shall be secure  in their persons, houses,
     papers and possessions   from all unreasonable   seizures  and
     searches,  and no warrant to search any place, or to sdizer~
     any person or thing, shall issue without describing   them as
     near as may be, nor without probable cause,    supported by
     oath or information.“

            For the purpose of giving effect to Article  1, Section%9, of the
Constitution of Texas, the Legislature   enacted Article 4, Code of Criminal
Procedure,   the language of which is identical with Article   1, Section 9,
supra, and Article 4a, Code of Criminal Procedure,      which reads as follows:

            “It shall be unlawful for any person or peace officer
     or State Ranger to search the private residence,    actual
     place of ha; ‘:.ti’%n, place of business, person or personal
     posessions   of any person, without having first obtained a
     s.earch warrant as required by law.”

             The Constitution and statutes do not prohibit every character   d
search and seizure without a warrant, but only prohibits unr-e,asonable
searches    and seizures.   It was held in Moore v. Adams,     91.SW 2d 447,
that the sheriff of Potter County had a right to seize slot machines with-
out a warrant, so long as the sheriff acted upon probable cause, and did
not have to commit a trespass      to galn entrance to the premises   from
which the slot machines were se.ized.       In this case, the machines were
operated for gaiming purposes in pu61ic palaces, to which the entire pub-
lic, including the sheriff and his deputies, had access,.

             Under the state of facts       as outlined    in your      letter,   the gambllng
HonHomer      Garrison,   Jr.,   Page    5 (Opinion No. O-1947)




devices or paraphernalia,   are ,stored in a warehouse,   and not in a public
place to which the entire publi,c, including members    of the Department
of Public Safety, have access.

             In view of the foregoing statutes and authorities,      you are
respectfully   advised that it is, the .opinion of this department that the
Department of Public Safe’ty is authorized.to        seize under a search
war*&       punch .boards. tip sheets and/or slot machines from the ware-
house or distributing point of a person or persons in the busine,ss of
distributing   same.   However, members        of the’Department   of Public
Safety are authorized to seize slot machines,         or any other gambling
device which is a gambling device per se, at any place where the same
may be found, when the officers are at said place by lawful means.

                                                  Very   truly yours

                                    ATTORNEY             GENERAL       .OF TEXAS

                                    By      /s/      D. Burle    Daviss
                                                     D. Burle    Davis6
                                                    ‘Assistant

DBD:AW:ps




APPROVED      APR   25,   1940

/so/ Gerald   C. Mann

ATTGRNEYGENERALOF                TEXAS
