Criminal District Attorney
Beaumont, Texas              Re:     Opinion No. WW-1506
                                     Subject: Marble
Dear Sir:                            Machines
      You have recently requested an opinion of this office
relative to a special kind of marble machine. The letter of
inquiry states in part:
          "On April 10, 1963, we requested an
      opinion from your office on the legality
      of a certain marble machine which allowed
      free balls on obtaining a certain objec-
      tive. ...'I
      You then state that this office furnished you with a
copy of the opinion request of Mr. Henry Wade upon which
Opinion No. ~~-1506 was based. You state:
          "The letter of inquiry did seem to
      indicate that the subject marble machine
      was one which is similar to the marble
      machine which our Inquiry inferred.
          "However, we are In need of an opinion
      that sets forth and states that a marble
      machine which allows an additional ball is
      in fact Illegal, If that is your opinion.
      Therefore, we request that you clarify or
      modify your opinion No. ~~-1506 to set forth
      a clear and definite holding on the legality
      of such a machine. The opinion, as now writ-
      ten, makes no reference to an additional ball
      except In the quotation from a New York deci-
      sion, and the facts describing the machine
      only Indicate that it is equipped with 'fllppers.l"
In ~~-1506   we held as follows:
          "Under the facts presented by you, we
      agree with you 'Flipper Cowboy' does not fall
      into the category of a coin operated gambling

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        Mr. W. C. Lindsey, Page 2   (C-89   )


              device. In short, we can say that when a
              player deposits his money in 'Flipper Cow-
              boy' he pays for and receives one game.
              That is all he bargained for and all he will
              get. Only the length of the game is left to
              be determined and that by the skill of the
              player. When that one game is completed the
              only way the machine can be replayed Is by
              depositing an additional coin."
        We then held that "Flipper Cowboy," a type of coin-operated
        marble machine was not a gambling device and was not prohl-
        blted under Article 642a of the Texas Penal Code.
              In your letter of April 10, 1963,   you described the
        marble machine as follows:
                  "The said 'marble machine' has a playing
              field set on four legs and is played by insert-
              ing a coin in the machine:
                  'No free games or money are returned to
              the player under any circumstances.
                  'The machine has mechanical devices on
              either side of the playing field called
              'flippers', which, if properly,manipulated,
              enable the player to hit the ball in play
              thereby preventing the ball'from falling into
              the 'return hole' and allowing the player to
              continue the same game.
                  "The game Is played with one ball, which
              is allowed to fall Into the 'return hole' af-
              ter passing through the playing field, the
              time required to pass through the playing
              field and the score accumulated being depen-
              dent upon the skill of the player in using
              the 'flippers' to keep the ball In play and
              make It strike certain objects In the field
              of play.
                  "AS the ball Is allowed to fall Into the
              'return hole', -it Is re-played a minimum of
              five times In one game.
                  "The game may be continued by the player
              and with the same ball if said player is
              skillful enough to obtain certain scores or

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Mr. W. C. Lindsey, Page 3   (c-89   )


      to strike certain objects In the field of
      play under certain known circumstances.
      This continuation of the game is by the
      process of allowing the ball to be shot
      additional times, up to 'amaximum of five
      shots in addition to the original five
      shots, but the score accumulated and the
      whole process constitutes only one game."

      As we understand the operation of the machine, a minl-
mum of five and a maximum of ten balls constitute one game.
Whether the player receives the minimum of five balls or more,
up to the maximum of ten, Is dependent on hisskill in mani-
pulating the "flippers". He has, therefore, received only
one game for his consideration (coin).
      Under these circumstances we affirm our holding In
Opinion ~~-1.506.
                    SUMMARY
          A marble machlne,which allows additional
      free balls as,.certainscores are obtained,
      such balls being obtained within the same
      game and upon the payment of a single con-
      sideration, Is not a'gambllng device per se
      and is not therefore prohibited under Article
      642a of the Texas Penal Code.
                              Very truly yours,

                                        General ofpxas



                                Norman V. Suare

NVS:nss




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Mr. W. C. Lindsey, Page 4   (C-89   )



APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
F. R. Booth
Howard Mays
Gilbert J. Pena
Howard Fender
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone,
