                      QBfficeof tip 2lttornep Qkneral
                                   &ate of Piexae
                                     January 3, 1994

Honorable Ken Armbrister                        Opiion No. DM-280
Chair
Committee on Intergovernmental Relations        Re: Whether Senate Bii 522, Acts
Texas State Senate                              1993,73d Leg., ch. 774, which sets forth
P.O. Box 12068                                  certain exceptions to the detlnition of the
Austin, Texas 78711                             term “gambling device,” congicts with
                                                provisions of Senate Bill 1067, Acts
                                                1993, 73d Leg., ch. 900, defining that
                                                term (RQ-3

Dear Senator Armbrister:

        You ask whether Senate Bill 522, setting forth certain exceptions to the definition
of the term “gambling device,” contlicts with provisions of Senate Bill 1067 defining that
term. The legislature recently enacted Senate Bill 1067, which significantly revises the
Penal Code. See Acts 1993.73d Leg., ch. 900. Senate Bill 1067 amends the definition of
the term “gambling device” in section 47.01 of the Penal Code as follows:

               “Gambling device” means any contrivance that for a
          consideration affords the player an opportunity to obtain anything of
          value, the award of which is determined sole/y or portialy by
          chance, even though accompanied by some skill, whether or not the
          prize is automatically paid by the contrivance.

Id. 5 1.01 (italics indicate new language). This provision will become effective September
1, 1994. Id. 3 1.19. It was enacted by the legislature on May 29, 1993. HI. of Tex., 73d
Leg., at 5164 (1993).

        Senate Bill 522 amends the section 47.01 definition of the term “gambling device”
as follows:

               (3) “Gambling device” means any electronic, electromechan-
          ical, or mechanical contrivance nor e.whu&d under Paragraph (B)
          of this subdivision that for a consideration affords the player an
          opportunity to obtain anything of value, the award of which is
          determined solely or portiah’y by chance, even though accompanied
          by some skill, whether or not the prize is automatically paid by the
          contrivance. Gambling &vice:

                 (A) includes, but is not limited to, gambling device versions
               of bingo, keno, blackjack, lottery, roulette, video poker, or



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Honorable Ken Armbrister - Page 2        (DM-280)




                similar electronic, electromechanical, or mechanical gmnes, or
               facsimiles thereof, which operate by chance or partially so,
                which as a result of the play or operation of the game award
                credils or free games, which record the number of free games
                or credits so awarded, and which also record ihe cancellation
                or removal of the free games or credits; and

                 (B) does no1 include any electronic, electromechanical, or
               mechanicaI connivance &signed, made, and aa@ed solely for
               bona fk& amusement pmposes if the connivance rewarak ihe
               player exclusively wiih noncash merchandise prizes, toys, or
               novehies or representation of value redeemable for those items
               which have a wholesale value available porn a single play of
               the game or device of not more than 10 times the amount
               charged to play the game or &vice once or $5, whichever is
               less.
Acts 1993, 73d Leg., ch. 774, 4 1 (italics indicate new language). Senate Bill 522 also
amends section 47.02 of the Penal Code by adding the following provision:
               It is a defense to prosecution under this section that a person
          played for something of value other than money using. an electronic,
          electromechanical, or mechanical contrivance which is excluded from
          the definition of gambling device under section 47.01(3)(B).

Id. 5 2. These provisions were enacted by the legislature on May 3 1, 1993, see S.J. of
Tex., 73d Leg., at 4118 (1993) and have an effective date of August 30, 1993, see Acts
1993, 73d Leg., ch. 774, 0 4, at 3030.

       The Code Construction Act provides in pertinent part that

          if amendments to the same statute are enacted at the same session of
          the legislature, one amembnenr withom reference IO another, the
          amendments shall be harmonized, if possible, so that effect may be
          given to each. If the amendments are irreconcilable, the latest in date
          of enactment prevails.

Gov’t Code 5 3 11.025(b) (emphasis added). Were we to conclude that the Senate Bill 522
and Senate Bill 1067 definitions of the term “gambling device” contlict irreconcilably, the
bill with the latest enactment date, Senate Bill 522, would prevail. We do not believe that
it is appropriate to apply the Code Construction Act’s rule of construction in this instance,
however, because Senate Bill 1067 makes express reference to other acts amending the
Penal Code in the same session, and establishes a guide for their construction. See
Attorney General Opinion DM-234 (1993) at 4 (Code Construction Act, Gov’t Code
5 311.025(b), does not apply where the legislature has “clearly expressed its intent with




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.


    Honorable Ken Armbrister - Page 3         (~~-280)




    regard to the proper wurse should a provision of that law and another law adopted in the
    same session con&t”). Section 13.02 of Senate Bill 1067 provides in pertinent part:

                   (a) . . . an amendment to any provision of the Penal Code made
               by another ‘Act of the 73rd Legislature, Regular Session,
               1993, . applies only to an offense wmmitted under the provision
               on or after the effective date of the other Act and before September
               1, 1994. The amendment made by the other Act continues in effect
               only for the liited      purpose of the prosecution of an offense
               wmmitted before September 1, 1994.

                   (3) For purposes of this section, an offense is wmmitted before
               September 1, 1994, if all elements of the offense occur before that


    Acts 1993,73d Leg., ch. 900, 5 13.02(a), (b).

           Under section 13.02 of Senate Bill 1067, the definition of the term “gambling
    device” set forth in Senate Bill 522 applies only to an offense committed on or after
    August 30, 1993, and before September 1, 1994. After September 1, 1994, Senate Bill
    522 continues in effect only for the limited purpose of prosecuting offenses committed
    before that date.1 The definition of the term “gambling device” set forth in Senate Bill
    1067 will be effective on September 1, 1994, and will apply to all prosecutions after that
    date, except for prosecutions of offenses wmmhted before that date. Under section
    13.02, an offense is wmmitted before September 1, 1994, if all elements of the offense
    occur before that date.




             IThe defense to prose&on M forth in Senate Bill 522 till have the same limited effective
    dates.


                                               p.   1470
Honorable Ken Amtbrister - Page 4         (~~-280)




                                   SUMMARY

               The definition of the term “gambling device” set forth in Senate
          Bill 522, Acts 1993, 73d Leg., ch. 774, 5 1, applies only to an
          offense wmmitted on or atIer August 30, 1993, and before
          September 1, 1994. After September 1, 1994, Senate Bill 522
          continues in effect only for the limited purpose of prosecuting
          offenses wmmitted before that date. The definition of the tertn
          “gambling device” set forth in Senate Bill 1067, Acts 1993, 73d Leg.,
          ch. 900, 5 1.01, will be effective on September 1, 1994, and will
          apply to all prosecutions after that date, except for prosecutions of
          offenses committed before that date.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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