Honorable Ward Casey           Opinion No. M-839
County Attorney
Ellis County                   Re:   Whether a certain coin
Waxahachie, Texas                    operated machine would
                                     fall within the prohibition
                                     of Articles 619, 642a, and
Dear Mr. Casey:                      654, Texas Penal Code.
     Your recent letter requests our opinion as to whether
a certain coin operated machine would fall within the pro-
hibition of Articles 619, 642a, and 654, Texas Penal Code.
     You describe the machine as follows:
     “A coin operated machine which includes a reel or
     drum on which a roll of tickets is dispensed one
     at a time after insertion of a quarter, and con-
     tains a window by which the customer can see the
     value of the ticket he is purchasing. After pur-
     chasing the ticket the roll advances and the
     customer can then see the value of the next ticket.
     The lowest value of any ticket purchased is a $.50
     discount on any $10.00 purchase in the pf;;kz;s
     where the machine is located. The only
     the customer can see at one time is the one which
     will be dispensed when he inserts his quarter.
     However, on inserting the quarter, the roll will
     also advance and allow hrm to see the value of
     the next ticket. He can then elect to purchase
     the next ticket or not. The values of the tickets
     give discounts ranging from $1.00 to $31.00. The
     owner of the machine and the operator of the premises
     where it is located split the proceeds after a com-
     plete roll of tickets has been dispensed, with the
     operator of the premises paying off all winning
     tickets in the form of discounts on his merchandise
     or services.
     "The roll of tickets may be installed in such



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Honorable Ward Casey, Page 2     (M-839)


     a manner that the customer does not know either
     the value of the ticket he will receive or the
     value of the second ticket." (Emphasis added).
     Article 619, generally defining gaming devices prohibited,
reads as follows:
     "If any person shall directly, or as agent or
     employee for another, or through any agent or
     agents, keep or exhibit for the purpose of
     gaming, any policy game, any gaming table, bank,
     wheel or device of any name or description what-
     ever, or any table, bank, wheel or device for the
     purpose of gaming which has no name, or any
     slot machine, any pigeon hole table, any jenny-
     lind table, or table of any kind whatsoever,
     regardless of the name or whether named or not,
     he shall be confined in the penitentiary not
     less than two nor more than four years regard-
     less of whether any of the above mentioned
     games, tables, banks, wheels, devices or slot
     machines are licensed by law or not. Any such
     table, bank, wheel, machine or device shall
     be considered as used for gaming, if money or
     anything of value is bet thereon."
     "Slot machines", as gaming devices under Article 619, are
further defined and prohibited under Article 642a which provides,
in its relevant part, the following:
     "Section 1.   The term 'slot machine', as used in
                   this Act, means:


     "(b) Any machine or mechanical device designed
     and manufactured or adapted to operate by means
     of the insertion of a coin, token, or other object
     and designed, manufactured or adapted so that when
     operated it may deliver, as the result of an
     application of an element of chance, any money
     or property; or
     II
      . . .II




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    Article 654 prohibiting a lottery reads as follows:

     "If any person shall establish a lottery or dispose
     of any estate, real or personal, by lottery, he
     shall be fined not less than one hundred nor more than
     one thousand dollars; or if any person shall sell, offer
     for sale or keep for sale any ticket or part ticket in
     any lottery, he shall be fined not less than ten nor
     more than fifty dollars."
     Under the facts presented by you it is apparent that
the coin operated machine in question is designed, manufactured,
and operated so that there is an element of chance in the de-
livery of the trade discount tickets. When the customer pays
his quarter on the first ticket, he is purchasing more than
what he sees, that is, the election to purchase the next ticket,
the value of which he does not know but which may range from
$1.00 to $31.00 in trade discounts. Of course if the roll of
the tickets were installed in such a manner that the customer
does not know the value of the ticket he will receive, then
an additional element of chance exists.
     We believe that the case of Queen v. State, 246 S.W. 384
(Tex.Crim., 1922), is in point on the question presented wherein
the court held that a chewing gum vending machine, by the
operation of which, on depositing a nickel in the slot, the
depositor receives a package of gum , whereupon the machine
indicates that on the next play he will receive nothing or an
indicated number of trade checks, which may be exchanged for
merchandise, or played in the machine on the chance of receiving
a greater number of checks, is a lottery. Also, the court in
Queen quoted with approval from a New York decision, People
ex rel v. Jenkins, 153 App. Div. 512, 138 N.Y. Supp. 449
7~. 4501, which held that:
     "'The element of chance lies in the fact that upon
     the turning of the lever and the deposit of the
     gum and number of checks indicated there is
     further indication of how many trade checks, if
     any, may be obtained upon the dropping of the second
     nickel. The number of trade checks, however,
     which can be obtained upon the dropping of the
     second nickel is only indicated after the first nickel
     has been dropped and the lever turned. Thus, in
     addition to the gum and trade checks indicated as



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     the certain receipts upon the dropping of the nickel,
     is given an option to obtain a package of gum and
     an uncertain number of trade checks upon the
     dropping of the second nickel. That this uncertain
     option has in it such an element of chance as
     constitutes gambling can hardly be questioned. In
     fact, this element of chance only gives to the
     machine its value; and that its use is within the
     direct prohibition of the statute seems clear."'
     (at p. 385).
Accord, Stranger v. State, 298 S.W. 906 (Tex.Crim., 1927) and
Boatright v. State, 38 S.W.Zd 87 (Tex.Crim. 1931); also 135
A.L.R. 104, 141 et seq.
     In Lytle v. State, 100 S.W. 1160 (Tex.Crim., 1907), the
court held that a trading machine requiring the insertion of a
nickel, which always paid at least a nickel back in trade, but
with the chance of a player getting more, was a gaming device
and the player was guilty of betting at a gaming table and
bank.
     Although penal statutes are to be construed strictly
they should not be construed so strictly as to defeat the
plain legislative intent. Head v. Hunter, 141 F.2d 449.
As was so aptly stated in Moberly v. Deskin, 169 Mo.App.
672, 155 S.W. 842 at 844 (1913):
     "In no field of reprehensible endeavor has the
     ingenuity of man been more exerted than in the
     invention of devices to comply with the letter but
     to do violence to the spirit and thwart the bene-
     ficent objects and purposes of the laws designed
     to suppress the vice of gambling. Be it said
     to the credit of the expounders of the law that
     such fruits of inventive genius have been allowed
     by the courts to accomplish no greater result than
     that of demonstrating the inaccuracy and insuffi-
     ciency of some of the old definitions of gambling
     that were made before the advent of the era of
     greatly expanded, diversified, and cunning mechanical
     inventions. The chief element of gambling is the
     chance or uncertainty of the hazard. It is not
     essential that one of the parties to the wager
     stands to lose."



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     Our opinion is that the coin operated machine which
you describe is a gaming device and a lottery within the
prohibition of Article 619, 642a, Section lb, and 654.

                        SUMMARY
     The coin operated machine designed and manufac-
     tured or operated so that with each play for the
     sum of $.25 the machine delivers, in addition to
     the trade discount ticket of a value which is
     known to the player, the additional option to
     purchase another trade discount ticket which may
     range in value from $1.00 to $31.00 in trade discounts,
     is a gaming device and lottery within the prohibition
     of Article 619, 654, and 642a, Texas Penal Code.
                                  Yours very truly,
                                  CRAWFORD C. MARTIN
                                  Attorney General of Texas


                                  By:
                                     NOLA WHITE
                                      First Assistant
Prepared by Guy C. Fisher
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Wardlow Lane
James McCoy
Jay Floyd
Rex White

MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant


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