    The Attorney               General of Texas
                      April   14,      1980




Honorable John B. Holmes, Jr.                 Opinion No.    NW- 16 6
Harris County District Attorney
201 Fsnnin, Suite 200                         Re: Whether a slot machine-like
Houston, Texas 77002                          device is prohibited by chapter 47
                                              of the Penal Code.

Dear Mr. Holmes:

       You request our opinion as to whether a slot machine-like         &vice   is
prohibited by chapter 47 of the Penal Code.

      The &vice in question, referred to by its manufacturer      as a “one-
armed banker,” is a plastic bank with a battery-operated    mechanism.     It
consists of a coin slot, three circular reels with various objects depicted
thereon, and a lever or handle which, when depressed, causes combinations
of the objects to appear through a display win&w.             When certain
combinations of objects appear in the display window, the device pays out a
varying number of coins to the operator.

      Section 47.06(a) of the Penal Code provides that:

           [al person commits sn offense if he knowingly owns,
           manufactures,  transfers, or possesses any gambling
           device that he knows is &signed for gambling
           purposes or any equipment that he knows is designed
           as a subassembly or essential part of a gambling
           device.

“Gambling device” is &fined in section 47.01(3) of the Penal Code ss:

           any mechanical contrivance that for a consideration
           affords the player an opportunity to obtain anything
           of value, the award of which is determined by chance,
           even though accompanied by some skill, whether or
           not    the prize   is automatically     paid by the
           contrivance.

Thus, two essential   elements of the offense created       by section 47.06(a) are
(1) that operation    of the &vice be contingent             upon payment of a




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Honorable John B. Holmes, Jr.     -   Page Two     (NW-168)



%onsideration”; and (2) that the award of a thing of value by the &vice be “determined       by
chance, even though accompanied by some skill.”

       Although the one-armed banker accepts either United States five or ten-cent coins,
it will also accept foreign currency, as well Bs slugs, of a similar size. It is not necessary,
however, to insert any coin cr other object into the coin slot in order to pull the handle,
which in turn causes the reels to rotate. If there are coins in the machine, the operator
may obtain them merely by pulling the hsndle.           If a winning combination of objects
appears through the display window, the operator receives a payoff without having
deposited anything in the &vice. The element of consideration is thus lacking.

      In addition, the “one-armed banker” may be operated completely free of any element
of chance. There is no covering over the display win&w, nor is any such item offered for
sale by the menufacturer.     After the operator actuates the reels by pulling the handle, he
may stop them merely by inserting his finger or other object through the open display
window. Thus, any combination of objects may be obtained manually. Since the reels are
not locked into place for payoff purposes until the handle is raised, the operator may
insure his success on every occasion that he operates the device.          In such cases, no
element of chance is present.

      The situation you pose differs from that in State v. One Slot Machine, 305 S.W.2d
386 (Tex. Civ. App. - San Antonio 1957, no writ), because the relevant statute has been
amended. Under article 642a of the former Penal Code, it was necessary to show only
that a device had been

            Section lb. 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 a result of an application of an element of chance, any
            money or property. . . .

Not only was the machine in question not “designed and manufactured or             adapted” to
operate as a gambling device, but the offense described in section 47.06 of the     Penal Code
requires proof that it is a “gambling device” as defined in section 47.01 of the   Penal Code.
That definition speaks only to the actual use of the machine, without regard       to its design
or manufacture.

       Since two essential elements of the offense described in section 47.06(a) of the
 Penal Code - consideration and chance - are not requisite for the operation and payoff
 of the device called a “onearmed banker,” it is our opinion that in its present form it is
 not a gambling device prohibited by the Penal Code.

                                        SUMMARY

             A plastic bank known as a “one-armed banker” is not a gambling
             device, the possession of which is prohibited by the Penal Code,




                                              P.   536
Honorable John B. Holmes, Jr.      -   Page Three         (NW-168)



           because neither the element of chance nor that of consideration
           must be present for either the operation or payoff of the device.




                                              MARK     WHITE
                                              Attorney General of Texas

JOHN W. PAINTER, JR.
First Assistant Attorney General

TED L HARTLEY
Executive Assistant Attorney    General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPIMON COMMITTEE

C. Robert Heath, Chairman
Gerald Carruth
Susan Garrison
Rick Gilpin
Bruce Youngblood




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