The Honorable Ronald L. Wilson       Opinion No. H-940
Criminal District Attorney
405 County Courthouse                Re: Legality of slot
Galveston, Texas 77550               machines on a cruise ship
                                     calling at a Texas port.

Dear Mr. Wilson:

     You have requested our opinion regarding the presence
of slot machines aboard a cruise ship docked at a Texas port.
You state that the operators of a certain cruise ship have
proposed to visi~t the Port of Galveston to pick up passengers
enroute to foreign destinations.   One room of the vessel
will contain approximately 50 slot machines.   You ask if
the owners and operators of the vessel may place themselves
in violation of Texas law under the following alternative
sets of facts:

            1. If the slot machines are electronically
            disabled and thus inoperable at all times
            during which the vessel is within the.
            territorial jurisdiction of the State of
            Texas; and

            2.    If the room in which the slot machines
            are located is sealed off by officials of
            the United States Bureau of Customs at all
            times   during which the vessel is within the
            territorial jurisdiction of the State of Texas.

        Section 47.06 of the Penal Code provides, in pertinent
part:




                           P. 3931
The Honorable Ronald L. Wilson - page 2   (H-940)


             (a) A person commits an offense if 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.   (Emphasis added).

"Gambling device" is defined as

          any mechancial 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.  Penal Code, 5 47.01(3).

You have suggested that a slot machine which has been elec-
tronically disabled so that none of its parts move may not
be a "mechanical contrivance" within the meaning of section
47.01.

     Some support for this contention may be found in
Hightower v. State, 156 S.W.Zd 327 (Tex. Civ. App. --
Dallas 194c writ ref'd). In that case, the District Attorney
of Dallas County had sought the destruction of seven slot
machines under articles 619 and 637 of the former Penal
Code. Five of the devices, however, had no automatic pay-off
mechanism.  The court held that, as a result, the prosecutor
must demonstrate that these machines were "being used for
gaming purposes at the time of seizure," since a slot machine
"is not per se a gambling device." Hightower v. State, supra
at 329. The design of the machine, the court said, was
immaterial -- "it is the game or character of play on it
that determines its status." 5

     In 1951, however, article 642a was added to the Penal
Code. That statute included a definition of "slot machine"
as one
          designed and manufactured or adapted . . .
          so that w=    operated it rn= deliver, as
          the result of an application of an element of
          chance, any money or property . . . .
           (Emphasis added).



                           p. 3932
The Honorable Ronald L. Wilson - page 3   (H-.940)



By virtue of the "designed and manufactured" language of
                                      v One Slot Machine,
article 642a, the court held in State -I--
305 S.W.Zd 386 (Tex. Civ. App. -- San Antonio 1957, no writ),
that a slot machine might legally be confiscated even though,
at the time of seizure, certain of its parts had been
disconnected and, as a result thereof, it could not at such
time award free,games. --
                        See also Attorney General Opinion M-
773 (1971).

     When the new Penal Code became effective in 1974, the
*designed and manufactured" language of article 642a was
omitted from the definition of "gambling device."   It was,
however, retained in the language describing the substantive
offense. Article 47.06 prohibits the possession of "any
equipment that [the actor] knows is designed as a subassembly
or essential part of a gambling device."  If a person has in
his possession a slot machine which has been electronically
disabled, he also possesses the component parts thereof. Such
component parts need only have been "designed as a subassembly
or essential part of a gambling device."   (Emphasis added).
Under the terms of --_
                   One Slot Machine, supra, so long as it
can be demonstrated that a piece of equipment was so
designed, its operating condition at the time of seizure
is irrelevant. Thus, it is our opinion that a slot machine
which has been electronically disabled and rendered inoperable
is not necessarily removed thereby from the scope of the offense
described in section 47.06 of the Penal Code.

     You also ask whether the owners and operators of the
vessel would be in violation of Texas law if the room in
which the slot machines are located is placed under the seal
of the United States Bureau of Customs while the vessel is
in Texas waters.  In Hostetter v. Idlewild Liquor Corp.,
377 U.S. 324 (1964), the United-States Supreme Court held
that the State of New York was not empowered "to prohibit
absolutely the passage of liquor through its territory,
under the supervision of the United States Bureau of Customs
acting under federal law, for delivery to customers in
foreign countries."   Id. at 329. The Bureau of Customs did
not exercise such "supervision," however, merely   under the
general authority of the federal government to regulate
foreign commerce, but under the specific terms of the Tariff
Act of 1930, 19 U.S.C. 5 1311. The conduct which the Court
proscribed was New York's attempt "totallv to nrevent trans-
actions carried on under the aegis of a law passed by
Congress in the exercise tits    expxcitpower    under the
Constitution to regulate commerce with foreiqn nations."     377
U.S. at 334. (Bmphasis added).


                         P. 3933
.   .




        The Honorable Ronald L. Wilson - page 4 (H-940)



             By contrast, we have been cited to no authority which
        would permit the Bureau of Customs to obtain exclusive
        jurisdiction over the slot machines while the vessel is
        in Texas waters by the mere act of sealing off the room in
        which the machines are located. It would in fact appear that
        the transportation of the slot machines into Texas waters
        could constitute a violation of federal law:

                     It shall be unlawful knowingly to trans-
                  port any gambling device to any place in a
                  State, the District of Columbia, or a
                  possession of the United States from any
                  place outside of such State, the District
                  of Columbia, or possession:  Provided, That
                  this section shall not apply to transportation
                  of any gambling device to a place in any
                  State which has enacted a law providing for
                  the exemption of such State from the pro-
                  visions of this section, or to a place in any
                  subdivision of a State if the State in which
                  such subdivision is located has enacted a
                  law providing for the exemption of such
                  subdivsion from the provisions of this
                  section, nor shall this section apply to
                  any gambling device used or designed for use
                  at and transported to licensed gambling
                  establishments where betting is legal under
                  applicable State laws: Provided further,
                  That it shall not be unlawful to transport in
                  interstate or foreign commerce any gambling
                  device into any State in which the transported
                  gambling device is specifically enumerated as
                  lawful in a statute of that State. 15 U.S.C.
                  5 1172.

        A "gambling device" under federal law includes any slot
        machine "designed or manufactured primarily for use in
        connection with gambling . . ." as well as "any subassembly
        or essential part" thereof.   15 U.S.C. § 1171(a)(2) and (3).
        Thus, since we are aware of no statute or procedure by which
        the Bureau of Customs might seal off a room containing slot
        machines aboard a vessel while the vessel is within the
        territorial jurisdiction of the State of Texas, and since
        the transportation of such machines into Texas waters may
        constitute a separate violation under federal law, we need
        not address the question posed by your second alternative
        set of facts.


                                   p. 3934
The Honorable Ronald L. Wilson - page 5    (H-940)



                     SUMMARY

          A slot machine which has been elec-
          tronically disabled and rendered
          inoperable is not necessarily removed
          thereby from the scope of the offense
          described in section 47.06 of the Penal
          Code. We are aware of no statute or
          procedure by which the Bureau of Customs
          might seal off a room containing slot
          machines aboard a vessel while the
          vessel is within the territorial jurisdiction
          of the State of Texas. Furthermore, the
          transportation of such machines into
          Texas waters may constitute a separate
          violation under 15 U.S.C. S 1172.

                                Very truly yours,




                    rst Assistant




c. ROBERT HEATH, Chairman
Opinion Committee

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