HonortibleRenry Wade         Opinion ~-1506
Dlrt~lct Attorney
Dallas county                Re: Whether or not "Flipper
Records Building                 Cowboy", a type of marble
Dallas, Texas                    machlne.1~ a gaming,de-
                                 vice and thua prohibited
                                 under Article 642a of the
Dear Sir:                        Texas Penal Code.,
        You have asked.thls office for an opinion on whether
or not "Flipper Cowboy," a ty$e of "mirble machine" 18 a gaming
,devlceand thus prohibited under Article 642a of the ITexas
Penal Code.
        Certain facts as to the operation of,the machine have
been set out by you in your request and it le upon these facts
that this opinion 1s baaed. Those fact8 are a8 follows:
        The eald "marble machine" has a:‘playlngfgeld set
        on four legs and is play&d by:.inserting a coin
        In the machine.
        No free games or money are returned to the player
        under any clroumatances.
        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 ln,play thereby preventing the ball from
        falling into the "return hole" and allowing the
        player to continue the name game.
        Th+ game may be continued by the player and with
        the Beme ball if aald player 1s eklllful enough'
        to obtain certain acorea.
        The machine la not equipped with any device which
        would allow any !'freegames," or the granting of
        any money, credit, property, etc.
        The owner of the machine offera no more than one
        game.
Honorable Henry Wade, page 2.   (WW-1506)


        There Is ample authority that If there is something
of value to be won by playing the subject machine, then It
would be a gaming device within the meaning of Article 642a
of the Texas Penal Code. It follows that Article 619 of the
Texas Penal Code would apply should a person keep or exhibit
such a machine.
        We find no Texas case which Is applicable to the ln-
&ant situation. It Is clear from careful study of State v.
One Slot Machine, 305 S.W.2d 386, that a marble maatine ae-
signed to reward a player with free games "as a result of
applicationof an element of chance" is a slot machine wlthln
the meaning of Article 642a. That case a8 well as State v.
Larlmore, 293 S.W. 2d 277 both Involve marble table-rare
distinguishablefrom the present case since there the court
in both of those Instances was dealing with tables which
allowed "free games" while here we ccincernourselves only
wlth the continuationof the same game with the same ball
based upon the score the player 1s capable of making.
        We agree with your conclusion that the operation of
this machine is to be distlngulehedfrom all ca8e8 previously
decided by the Texas Courta which deal with Similar machines.
        Basically, gambling devices and amusement devices may
appear similar aa to their operation but they are fundtlonally
different. A coin operated amusement device doee only two
thlnga, It: 1) receives a coin and 2) it gives, In return fey
the coin, the right to play one game. While a coin operatea
gambling device does four things: 1) receives a coin, 2) gives
the right to play one game, 3) applies an element of chance,
and 4) gives a pay off or prize which depends upon the appli-
cation of the element of chance.
        Under the facts as presented by you, we agree with
you "Flipper Cowboy" does not fall Into the oategory of a coin
operated,gambllngdevice. In short, we can say that when a
player deposits his money In "Flipper Cowboy" 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 de-
positing an additional coin.
        We believe that "Flipper Cowboy" Is an amusement
device within the above definition,unless those playing same
are in fact betting on the outcome of the game.
__




             As previously stated, we have found no Texas case
     which la strictly applicable;however;we agree with the
     case State of New York v.,Horton, 229 N.Y.S. 2d 25, which
     you oxted for our assistance and we quote from that opinion
     as follows:
               "Clearly this machine would be a gambling
              device if the user of the machine received
              a free game or could exchange his score for
              some monetary reimburseme,nt.Conversely,It
              la obvious that If the user of the machine
              could receive absolutelynothing for the ln-
              sertlon of 10 cents that this would not be a
              gambling machine under the purview of the Penal
              IlaW. In this case, the player, if he is sklll-
              ful enough, can obtain an additionalball which
              adds to hls score. There 1s no element of
              chance and the user of the machine does not re-
              ceive any monetary reward~for his effort."
              We, therefore hold, based on the facts as presented and
     ~8s outlined above,that 'EFllpperCowboy," a type of marble.,table
      Is not a gaming device per se and Is not prohibited under Artl-
      cle,6&a of the Texas Penal Code.
                               SUMMARY
              "Flipper Cowboy," a type of coin operated marble
              machine Is not a gambling device and is not there-
              fore Drohlblted under APtlcle 642a of the Texas
              Penal Code.
                                  Very truly yours,
                                  WILL WILSON
                                  Attorney Qeneral of Texas

                                -7+G?e
                               By F. R. Booth
     FRB:zt                       Assistant
     APPROVED:
     OPINION COMMITTEE
     W. V. Ceppert, Chairman
     Howard Maya
     Robert Lewis
     Marvin Sentell
     REVIEWED FOR TRE ATTORNEY GENERAL
     BY: Leonard Passmpre
