                           September    5. 1951



Hon. Robert S. Calvert
Comptroller   of Public Accounts
Austin, Texas                    Opinion No. V-1271

                                       Re:   Applicability  of House gill
                                             No. 326, making possession
                                             of certain gaming devices a
                                             felony, to “pinball” or “mar-
                                             ble” machines which pay off
                                             the winner in free games
                                             rather than cash or physical
Dear Sir:                                    property.

          Your recent request for an opinion asks.,in    general,
whether House Bill No. 326, Acts 52nd Leg., 1951, ch. 178, p.
299 (codified as Article 642a. V.P.C.),   makes it unlawful to *own,
keep or possess”   devices commonly known as “pinball” or “mar-
ble” machines which automatically    deliver free games to the win-
ner instead of cash or physical property.    You specifically    inquire
as to whether these “pinball” or “marble” machines       are prohibited
“slot machines,”   as that term~is defined in Section 1 of the Act.

          The machines  about which you inquire are described    in
your letter as machines   “whose users propel balls with a plunger”
and which are designed or adjusted so that the mechanism     “will
automatically  permit a free play when a certain score isreached”
v&&out the deposit of additional coins therein.  You further char-
acterize these devices with the following statement:

          U ‘Pinball’ or ‘marble’ machines    do not contain a
     drum or reel with insignia thereon.     Rather, they oper-
     ate primarily   through a series of electrical  cross-
     connections,   which are set in motion whe.nthe ball
     touches certain trips and switches,    and which reflect
     themselves    in lights or computers  that reveal the
     player’s  score.”

            House   Bill   No. 326 provides,    in part,   as follows:
                                                                     .




Hon. Robert   S. Calvert,   Page   2    (V-1271)



          “Section 1. The term         ‘slot   machine’   as used
    in this Act, means:

         *(a) Any so-called  ‘slot machine’ or any other
         machine or mechanical    device, by whatsoever
         name known, an essential part of which is a
         drum or reel with insignia thereon, and

              *(l) which when operated may deliver, as
              the result of the application of an element
              of chance, any money or property or: other
              valuable thing, or

              “(2) by the operation of which a person
              may be entitled to receive,  as the result
              of the application of an element of chance,
              any money or property or other valuable
              thing; or

         “(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

         ‘(c) Any subassembly    or essential part intended
         to be used in connection with such machine or
         mechanical  device.

         *Sec. 2. Whoever shall manufacture,      own. store,
    keep, sell, rent, lease, let on shares,  lend or give away,
    transport or possess    a slot machine, as defined in Sec-
    tion 1, shall be guilty of a felony and upon conviction
    thereof shall be confined in the State penitentiary not
    less than two (2) years nor more than four (4) years.”

          We agree with your own interpretation    of your first ques-
tion -- that Section l(a) is not applicable to marble machines which
have no *drum or reel,” and that it is to Section l(b) that we~must
look to determine   whether marble tables and pinball machines are
included within the Act.
                                                                          277
Hon. Robert   S. Calve&   Page   3 (V-1271)



           It is obvious that coin-operated   marble and pinball
machines which automatically       deliver, as the result of an ap-
plication of an element of chance, money or physical property,
are within the definition of the term “slot machine” in Section
l(b).   Your primary    concerri is whether such, machines are in-
cluded within the statutory definition if they pay off the winner
in free games rather than cash or physical property.        This ques-
tion is phrased by you as follows:

          “SECOND QUESTION:           Are ‘pinball’ or ‘marble’
     machines which do not deliver money or physical prop-
     erty to a’pfayer,    but which can be adjusted to award
     free games,    ‘slot machines’ within the meaning of the
     above-quoted     definition, said definition being the one
     which is contained in Subdivision (b) of Section 1 of
     House Bill 326 ? n

          .We assume that you are interested    only in those ma-
chine~s which are constructed    or adapted to award free games
rather than t.lz    which can be so constructed   or adapted.   There
is a difference.   Hightower  v. State, 156 S.W.Zd’ 327  (Tex. Civ.
App. 1941).     The words of the statute cover only that type of ma-
chine which is “designed and manufactured      or adapted so that
when operated it may deliver . . . any money or property.“l         Our
answer to your question will refer only to those machines which
are designed’ and manufactured     or adapted so as to automatically
release or deliver free games to the winner.

          At the outset, the treatment of these so-called  “free
game” machines in the law and public policy of this State should
be reviewed in order to keep in mind the nature of the subject
matter being dealt with by the 52nd Legislature.     Marble and pin-
ball machines   which pay the winner in free games instead of cash
have been condemned by previous statutes and court decisions      of
this State the same as gaming devices which pay off in cash or
physical property.   State v. Langford, 144 S.W.2d 448 (Tex. Civ.
App. 1940); Broaddus v. State, 150 S.W.2d 247 (Tex. Crim. 1941)



      l/  The statute also covers ‘any subassembly  or essential
part-ntended   to be used in connection with such machine or me-
chanical device.”    Sec. l(c), supra.
278   Hon. Robert   S. Calvert,   Page   4 (V-1271)



      Hightower v. State, 156 S.W.Zd 327 (Tex. Civ. App. 1941); Mar-
      tin v. State, 162 S.W. 722 (Tex. Crim. 1942).     They have noten
      considered mere amusement       games for ‘skill or pleasure”    by
      previous Legislatures    and the Texas Courts.     The above cited
      cases held that the keeping or exhibiting of such machines is
      prohibited by Article 619, V.P.C.,    which fixes a penitentiary sen-
      tence for-violation  thereof.  Article 634, V.P.C.,   declares the
      mere existence of this type of gaming device “against public poli-
      cy and a public nuisance.”    Williams  Mfg. Co. v. Prock, 184 F.
      2d 307 (U.S. Ct. App.. 5th Cir. 1950).

                It is a proper presumption    that the Texas Legislature,
      in considering H.B. 326. had knowledge of the fact that previous
      statutes, court decisions   and declarations   of public policy have
      placed free game pay-off machines in the same category as slot
      machines,    gaming tables, and other devices which pay off in money        ~;:>
                                                                                  or
      or physical property and that the same penalties are provided for
      keeping and exhibiting such machines.

                Therefore,  the question which you have posed is whether
      the Legislature,   knowing the unlawful and felonious nature of these
      free game pay-off machines,     intended by its .wording of Section 1
      (b) to exempt    them from the new law prohibiting possession      of
      other gaming devices of the same category.        Specifically; did the
      Legislature   use the word “property”   in Section l(b) in its broad
      sense so as to include Yfree games,”     or was the word used in the
      narrow sense so as to mean “physical property” and thereby ex-
      clude free game machines ?

                Some courts have construed the word “property” in gam-
      ing statutes to include free games, and others have said that it
      does not include them.    In almost all instances the conflicting court
      decisions   are based upon differences   of opinion as to the value of
      free games and the variation of public policy with relation to free
      game payyoff devices in the different States.

                 We have conducted an exhaustive     research   of the ‘author-
      ities to determine the fundamental considerations       involved in the
      interpretation  of statutes of this character.   From this research
      we are convinced that the great weight of authority in the United
      States compels a construction     of Section l(b) of the Act as includ-
      ing such “free game” devices,     and that the considerations     given
      effect in such cases are in harmony with the prevailing case law
      in this State construing our gaming statutes.
Hon. Robert   S. Calvert.   Page   5    (V-1271)



           awhile the type of prize or award which determines          in-
clusion of these devices within Section l(b) is described          as “mon-
ey or property,”      the cases dealing with this and similar      expres-
sions are almost invariably         bottomed on the conception of the
particular    court as to the’ relative tangibiJity or value of the right
to amusement.       as afforded by the free games.      Thus, where the
court, as in the majority       of the cases, considers   amusement     to be
of value, the free games are heid to constitute         ‘money or property,”
 ‘property    of value,” -a valuable thing,” etc.     Those~courts    taking
a contrary view invariably base the decision on a conception that
the replay privilege      is too inconsequential   and trivial to be of
 ‘value.”   or too intangible to constitute    ‘property”   within the mean:
ing of such s.tatutes , and within the evil sought to be, remedied
thereby.

          The basic   divergence       in the cases   is best comprehended
by an examination     of the decisions     on the subject.

         .Rankin v. Mills Novelty Co., 182 Ark. 561. 32 S.W.2d
161 (1930), is a leading case, and one of the earliest, on the sub-
ject. The Arkansas    Supreme Court said, at page 162:

           ‘In order to constitute a gaming device under
     the statute, it must be one that is adapted or designed
     for the purpose of playing any game of chance or at
     which any money or property may be won or lost, and
     any one who shall bet any money or other valuable
     thing, or”any    representative    of any thing that is es-
     teemed of value, ’ is guilty. under Section 2634 of Craw-
     ford & Moses’ Digest, of betting on a gambling device.
     By section 2640 of the same chapter of the Diges,t ‘gam-
     bling’ is defined as the betting of any money or any val-
     uable thing on any game of hazard or skill. It is clear
     from these sections and the entire chapter on gaming
     that the word ‘propertv’.      as used in section 2630, and
     .tbe words ‘valuablethin&‘mentioned        in other sections.’
      are used synonymously,       and that any valuable thing or
      ‘any representative    of anv thing that is esteemed .of
      value’ is ‘property’ within the meaning of section 2630.
      supra.   The machine in question is one which always
     Gin        exchange for a nickel a package of mints, and.
      in addition to the mints, a number of ‘slugs,’ in vary-
      ing amounts from two to twenty, with which a game may
      be played, there being an element of chance in the number
Hon. Robert     St Calvert,   Page 6 (V-1271)



    of slugs obtained for a nickel.      Is the right to play a
    game obtained in the above manner ‘property’ or a
     ‘thing of value’ within the meaning of our statute pro-
    hibiting the setting up of gambling devices and gam-
    bling?    We think it is. It is a matter of common know-
    ledge that the maintenance     of places, having no value
    in themselves,    but which are used for amusement         only,
    are among the most remunerative         kinds of property,
    such as miniature golf courses and other like means
    of amusement,     and any thing that contributes     to the
    amusement     of the public is a thing of value.    . . .*
    [Emphasis ours throughout this opinion.]

Howell v. State, 184 Ark. 109, 40 S.W.Zd 782 (1931), follows the
Rankin case, supra, which in turn is followed in Steed v. State,
189 Ark. 389, 72 S.W.2d 542, 543 (1934), wherein the specific
statute involved in all those cases is quoted as prohibiting var-
ious games “at which any money or property may be won or lost.”

           !n Boynton v. Ellis,  57 F.2d 665 (C,C.A.  10th. 1932).
the player of the device might receive tokens with which the ma-
chine could be replayed.     Certain of the Kansas Statutes involved
prohibited certain games and devices played for “money or prop-
erty,” and other of such statutes prohibited those where cash
prizes   “or other valuable things are given.”    The court said, at
page 666:

           “It seems clear to us that these tokens or checks
    .which are obtained by chance represent some value
     and constitute property.     The best reason for this view
     is that the public is thereby enticed into patronizing
     the machines.    It is the professed   object of installing
     them.    The tokens or checks may be likened to theater
     tickets in representing    a means of amusement.       The
     tickets have value.    State v. Blair, 130 Kan: 863, 288
     I?. 729; State v. Haining, 131 Kan. 854, 293 P. 952.

         *      The value may be slight, but still it is
             . . .
    propert?.  in that it affords amusement to the players
    which entices them into patronizing   the machines.”

The citation to State v. Haining is significant in that it held, in ef-
fect, that the amusement   at a theater is the thing sold regardless
of whether tickets evidencing the right to such amusement       are sold
                                                                           -   281
Hon. Robert   S. Calve&,    Page   7 (V-1271)



to the recipient   of the right.

           Boy&on v. Ellis, supra.     is followed in Boynton   v. Mills
Novelty   Co., 60 F.2d 125 (C.C.A.     10th. 1932).

            Of similar  effect is Colbert v. Superior Confection Co.,
154 Okla.    28. 6 P.2d 791 (1931), the import of which is that “mon-
 ey, . . ., checks, credits or any representative     of value” are
 class.es of “property”    within a statute Using those terms in com-
 bination with the term “property.”       See, also, Mackay v. State,
 83 P.2d 611 (Okla. Grim. 1938). citing other cases to the effect
‘that the Oklahoma slot machine statute was intended to prohibit
 play on machines for ‘money or other property.”          The court cites
 several cases to the effect that the amusement       of additional free
 plays has a value, small though it be.

           People v. Settles, 78 P.2d 274 (Cal. Sup. Ct., App. Div.
1938). considered whether additional free plays to a winner con-
stituted “property?    under a California lottery statute, and held
that “the duty of the operators    of this game to permit the win-
ner to play further games free is an obligation arising from
contract,”   and constituted  “personal property.”

        ‘~Kraus v. City of Cleveland,  135 Ohio St. 43, 19 N.E.2d
159 (1939), considered  a statute prohibiting devices played for
‘gain” in connection with another statute prohibiting devices
played for “money or other property.”     After holding that amuse-
ment is a thing of value, the court concluded that the machine was
a gaming device under both ‘statutes:

           Middlemas   v. Struts. 71 N.D. 186. 299 N.W. 589 (1941),
deals with a device under a North Dakota lottery statute where,
to constitute the offense, it was “essential  that the prize or award
which the player may win shall be property or an inter.est in prop-
perty.”   Conceding that a statutory definition of “personal,proper-           i
ty” applied, the court said:

            . . . The language ‘every description  of money,
     goods, chattels [and) effects’ is broad enough to include
     every statutory definition of personal property without
     regard to the particular  division of our codes in which
     it may be found. The word ‘effects’ is one of broad     ’
     significance.   When used alone it has been held to in-
     clude everything that ‘can be termed of value.’ . . .
                                              ,




282
      Hon.. Robert          S.~ Calvert,   Page 8   (V-1271)


                Y
                    .   .   .   .




                Y
                    .  When the player places his coin in the slot,
                        .   .



           he accepts that offer and acquires thereby an exclusive
           right, as against the owner and all others, to the use of
           the machine for the duration of at least one game.       If
           the player is lucky and wins, the right to the exclusive
           use of the machine is continued for an indefinite dura-
           tion.   The right to use such a machine for entertain-
           ment purposes is a thing of value.    . . . It is a thmg
           subject to ownership and things subject to ownership
           are property.    People v. Settles et al., 29 Cal. App..
           2d Supp. 781, 78 P.2d 274.

                 II
                  . . . The machine here in suit, therefore, is one
           in the play of which, the player pays a valuable con-
           sideration for entertainment   and an opportunity de-
           pendent chiefly upon chance to win a prize or award
           which is property.   . . .”

                 In holding that free games are within a statute prohibi-
      ting games whereby “money or other thing may be won or lost,”
      the court in Steely v. Commonwealth,        29.1 Ky. 554, 164 S.W.2d
      977 (1942), held that free games are of sufficient value to fall
      within gaming statutes, giving particular       attention to cases char-
      acterizing   prohibited games as those wherein the player “hazards
      his money on the chance that he may receive in return money or
      property of greater value than he hazards.”          To the same general
      effect is Giomi v. Chase, 47 N.M. 22. 132 P.2d 7,15 (1942), which,
      in holding that free games are “anything of value,” cites the lan-
      guage of Boynton v. Ellis, supra, that “the value may be slig,ht,
      but still it is property,  in that it affords amusement     to the~playeri
      which entices them into patronizing the machines.”

                 Except for slight difference    in legislative history and the
      verbiage of the Texas Act, and subsequent consideration           of pe’rti-
      nent Texas decisions,      our conclusion might be summed up in the
      comprehens,ive     consideration  of the point at issue in Co-on-
      wealth v. Rivers,    323 Mass. 379, 82 N,E.2d 216 (1948).        The Mas-
      sachusetts   Statute prohibited a lottery to dispose “of any property
      of value. ” The device in question gave only free games.           After an
      exhaustive   citation of cases considering     the meaning of various
      statutory phrases descriptive      of prizes and awards or prohibited
      games, the court concludes:
.HorL Robert   S. Calvert,    Page   9 (V-1271)



           “By the great we,ight of~authority it is settled as
     to machines     or devices by the operation of which free
     plays may,be had by chance ‘or hasard that the free
     plays are,something       of value orproperty    of valuewith-
     in the meaning of the statutes involved, that it is the
     right to operate the machine an additional time or times
     that  is the thing played for, and not the token which re-
     presents the value.       There are cases in a few juris-
     dictions where it has been held that free plays are not
     per se things of value, but we are persuaded that the
     contrary view supported by the great weight of author-
     ity of other~courts     of this country is sustained by the
     reasoning upon which the results of those cases are,
     based, andwe are in accords therewith.         In the present
     case’ it seems that no tokens representing        free plays
     were delivered by the machine, but rather that the
     machinc~.,operated as to free plays by an automatic re-
     corded score.       But as is said in Alexander    vi Martin,
      192 S.C.‘176.    183, 6 S.E.2d 20, 23, ‘It matters little
     whether -.. . ~. [the right to play the machine witbout
      addition&cost]      was evidenced by.tokens or by an auto-
     matic recorded score.’         And as pointed out before,‘it
      is the free play itself that is the ‘property of value’-
     however    evidenced.”

           There dare many other cases construing      statutes which
 do not use the word “property,”    but which discuss the relative
.value of a free play under statutes which characterize       thenpro-
 hibited prize as. “thing of value* and other synonymous       words.
.Most of these cases characterize    the ‘thing:o.f value” with all
 of the attributes’of the term “property” in its broade~r sense,
 and may be readily aligned with the “property”      cases on the
 basis of the fundamental concept of the relative value of the
 prize.  They are:

           Harvie v. Heise, 150 S.C. 277., 148 SE. 66 (1929), noting
that since immense    sums are paid for amusement    it must have a
value; Gaither v. Cate, 156 Md. 254, 144 A. 239 (1929). comparing
free game to ticket to moving picture show and seeing no essential
difference;~State  v. Marvin, 211 Iowa 462, 233 N.W. 486 (1930), to
same effect; Green v. Hart, 41 F.2d 855 (Conn. Dist. Ct. 1930).
amusement from free play has value; State V. Mint Vending Machine,
Etc., 85 N.H. 22, 154 A. 224 (1931), comparing free plays to theater
ticket; White v. Hesse. 48 F.2d 1018 (Ct. of App.; D.C. 1931). value
                                                                                      -




     Hon.   Robert   S, Calvert.   Page   10. (V-1271)



     is the “right” to replay; Jenner v. State, 173 Ga. 86, 159 SiE.
     564 (1931). comparing free plays’to admission           to movie; Sn -
     der. v. City of Alliance,    179 NZ. 426 (Ohio Ct. of App,1931 7’ ,
     “amusement      is a thing’of value, for which more money is spent
     perhaps than for any other purpose;”          Painter v. State, 163
     Term, 627, 45 S.W.2d 146 (1932), noting that the “right” to free
     play has value; State v. Baitler,      131.Me. 285, 161 A. 671 (1932).
     holding that tokens “evidence right to operate the ‘amusement.’
     Each was a ticket to part.of the game;” and citing the Rankin
     case, supra, among others; Appeal of Mills Nove,lty Co.. Etc.,
     316 Pa. 449, 175 A. 548 (19341, affirming and adopting;opinion
..   from lower court at 173 Ai 753; citing among other cases Com-
     monwealth v. Goldsmith,        17 Pa., Dist.. 81 Co. R; 145, to the effect
     that tokens’for    replay for amusement have intrinsic value; Ci&
     of MiLwankee v. Burns,‘225        Wis. 296, 274 N.W. 273 (1937)., to
     the effect that since tokens could be used in place of nickels to
     replay pinball machine, t&y have value; Alexander             v. Martin,
     192 S.C. i76, 6 S.E.2d 2U;(1939), one of first cases dealing with
     matic        award of free plays on “pinball” machine,         holding
     that “amusertre& iaxecognized         by the courts as a thing of value,”
     and citing, among others, w             v.. Heise, supra. to the effect
     that the thing actually received is the ‘right” to replay, regard-
     less of whether automatic or evidenced by tokens; People v.
     Cerniglia,    11 N.Y.S.td   5 (N.Y. City Magistrates      Ct. 1939), free
     play is a “thing of value; ““Couch v. State, 110 P.2d 613 (Okla.
’    Grim. App. 1941). discussing           value of free plays under statute
     classifying     “amusement”       along with *property,    tangible or in-
     tangible . . . or anY,ne+tsuthtive           of value or any other thing;”
     State v. Wiley, 232 bwa 443,A N.W.2d 628 (1942). contains ex-
     haustive,,,‘cit$tions,    inclaQfng I-       cases, aupra, aroemg the “great
     majority,‘“: compares        the automatic free game davicea~ %a “token”
     devices,     notes that free plays on mint vending machines- are in-
     cidental to ,the sale of mints, while if ‘a coin is inserted         Iin the.
     pinball machine solely for amusement,             the value of free plays is
     measured       by the value of the coin, and that “the rule is the same
     whether     the machine emits disks with wls%& it can be replayed or
     works automatically;”          Hunter v. Mayor, etc., pBl8J.L.          164.24
     A.2d 553 (lq42),       citing cases holdtng that amusement         has value,
     and followed in Stafford v. Garrett,          128 N.J.L. 623, 28 Ai2d 289
      (1942); People v. One Pjnbali Machine, 44 fi.E.2d            950 (Dl. App.
      Ct., 1942). :dontains exhaustive citations noting that the “valua-
     ble thing” won is the “right” to play additional games regardless                -
      of how +&right         is evidenced; State v. Betti; 34 A.2d 91 (hI.3.        ,~.
     Disk. Ct.: 1943), reversed        at 42 A.2d 648. -infra. .free game:amuser
.
                                                                              285
    Horn Robert   S. Calvert,   Page   11 (V-1271).



    ment -a valuable thing;” Oatman v. Davidson,      310 Mich. 57, 16
    N.W.2d 665 (1944),~observes    that since the plays would ordi-
    narily cost the player five cents each, the opportunity to have
    free plays is a thing of value, ‘and that there is no difference
    in principle between a trade check and a free play;” Thamart
    v. Moline. 66 Idaho 110. ~156 P.Zd 187 (1945), containing ex-
    haustive discussion   of cases and holding “right%    free play is
    a right of value.

             .Cases in the contrary category warrant closer analysis
    than the limits of this opinion permit in order to fully appreciate
    the basic divergence   from the majority  and the prevailing trend
    of Texas decisions,   as hereafter demonstrated.    However,   sig-
    nificant points therein will be noted.’

             -Davies v. Mills Novelty Co.. 70 F.2d 424 (C.C.A;     8th,
    1934). was concerned with a Nebraska Statute. which had not been
    construed by the state courts, prohibiting games of chance for
    “money or property” which the court construed to mean ~“money
    or other thing of va,lue” but it follows certain minority decisions,
    hereafter noted, that mere amusement      does not offer a sufficient
    incentive to gambling and that the machine “has no’element       of
    gain or loss, financial or otherwise.”

              Chicago Patent Corporation       v. Genco, Inc., 124 F.2d
    725 (C.C.A;   7th 1941), was a patent infringement     case involving
    similar pinball machines,     wherein defendant contend.ed that the
    device was a gambling machine and beyond the protection of the
    patent laws.   On the basis of Davies v. Mills Novelty Co..*,
    the court defined a gaming device as one played for “gain,” the
    test being whether it was designed for splay for ‘money or proper-
    sty.” ~~Obscovipg tsrat~~%aothing~of :monetary..value, nothingsuscepti-
    ble of purchase and sale passes to the, successful      player” [an
    obviously inaccurate  statement],  the opinion concluded that since
    issuance of a patent creates a prima facie presumption    of utility,
    the absence of any showing by defendant to overcome     such pre-
    sumption and the findings of the trial court that the machine may
    be operated “without gain being a factor” and that it was capable
    of legitimate use, the court could not hold as a matter of law that
    it was inherently a gambling device.

             .State v. Waite, 156 Kan. 143, 131 P.2d 708 (1942). dealt
    with automatic award of free plays on a “pinball” machine ,under
    a statute prohibiting machines   “designed for the purpose of play-
286
      Hon.~ Robert   S. Calvert,   Page   12 (V-1271)



      ing any game of chance for money or property” and with which,
      persons are induced or permitted      “to bet or wager any money
      or other things of value.”    The court noted that no “tangible”
      property was awarded, and rested its decision on whether such
      free plays constituted *property.‘      It applied a rule of strict
      construction.   Observing that the Kansas Statutes defined prop-
      erty, it would not resort to general definitions of the term. It
      then meticulously   dissected the statutory definition of “personal
      property” as meaning “goods, chattels, effects, evidences of
      right in action, and all written instruments      by which any pecuni-
      ary obligation,  or any right or title to property,     real or personal,
      shall be created, acknowledged,     assigned,    transferred,  increased,
      defeated, discharged,    or diminished,”    Andyconcluded that “prop-
      erty” as there used meant tangible property -,-’ something that
      could be carried physically.     The court declined to discuss cases
      from other jurisdictions    with the observation     that they usually
      involved materially   different statutes.

                In re Wigton, 30 A.2d 352 (Pa. Super. 1943), involved the :
      phrases  “money or other property of value” wasused in one stat-
      ute and “money or other valuable .thing” as. used in another statute,
      and held that free games were neithe~r “property of value: nor
      “other valuable thing. ” The decision applies a rule of strict con-
      otruction and concludes that something tangible like “money” is
      contemplated ,by the combination of such words, expressly     giving
      the terms a narrow meaning.     It conceives the mischief  to be re-
      medied by the statute as not including the award of free games.

                  Washington   Coin Machine Ass’n v. Callahan,. 142 F.2d 97
      (C.A.,D.C.,    1944), involved the ph,rase “money or property” as
      used in the penal statutes of the District.    On the basis of the fore-
      going cases in this categoryand      others, the court concluded that
      free games were not of tangible or. material value,.

                Like Commonwealth      v. Rive,rs, stlpra, on the other side of
      the question, State v; One ‘Jack and Jill” Pinball Machine, 224 S.
      ~W.2d 854 (MO. Ct. of App.1949).    sums up the conception that free
      games are not Ymoney or property* with exhaustive           annotations and
      analysis of the cases.   The Arkansas     c,ases are given special atten-
      tion and the main distinction drawn is that the Rankin case, supra,
      concluded that the terms “property” and “valuable thing” are used
      synonymously,   while the Missouri     Statute does not contain the
      phrase “valu,able thing” or equivalent wo,rds. A rather lengthy dis.-
      cussion of the basis of the court’s conclusion      that free games are
Hon. Robert   S. Calvert,   Pa,ge ~13 (V-1.271)



.not property may be summed        up in the following   paragraph    from
the opinibn,~ at page, .S61:

          .‘,Does the player receive anything of financial or
     economic    value ? Rather isn’t this so-called   recrea-
     tion and* amusement, the ‘antithesis of value 7 If one’s
     time is worthanything.    it is a loss .instead of gain, a
     waste instead of reward.     Hope of reward or gain,,above
     the amount risked, is the lodestone of gambling..       The 1
     fact that one has paid five cents for it does not conclu-
     sively fix that, or any other sum,, as its value or any
     value at all.”

         Referring  now. to those decisions which, while snot. dis-
cussing the character  of free plays as “property,” do support the
contrary viewpoint that such free games are of inconsequential
value, we briefly note them:

           Overby v. Oklahoma City,, 287, P.796 .(Okla. Crim. 1930),
holding that slugs good for free plays were not “something             of value”
[it is noted that the case was tried on an ag,reed statement of facts
which recited that the ,slugs had no value] ; People v. Jennings, 257
N.Y. 196, 177 N.E. 419 (1931). speaking of free plays won on a de-
vice. observes    that “the product, however. is valueless        from a
monetary standpoint, perhaps, if not from any other,” and that the
omission of the phrase ,“other things ,of value’! from the particular
statute spe.aking of “money, or any check or ~memoranda calling for
money” limits its application to thinga of money value; Mills Nov-
elty Co. vW Farrell,   64 F.2d 476 (C.C.A.2d     1933, affirming       3 F.Supp.
555). holding in effect that the ‘insubstantial    amusement        feature of
the machine” in aid of the sale of mints was not ‘any valuable
thing ,” under.:a ConnecticuLQatute.     .and observing.&&       *one may
not suppose that a person desiring to gamble would put up money in
the hope of obtaining tokens which can be used only to produce in-
significant humorous sayings.       The amusement     feature of the ma-
chine does not make the machine a gambling device;” Mills Novel-~
ty Co. v+ Bolan.    3 F. Supp. 968 (N.Y.. D.C. 1933). reluctantly           fol-
lowing People v. Jennings, supra, holding that tokens usable               for
free games are not of value.       [The decision was affirmed at 68
F.2d 1009, on the authority of the Jennings and Farrell          cases,      su-
E,    but, as noted in Petition of Superintendent     of Police,     etc. 17
A. 753, 758. and State v. Wiley, w,          the United States Supreme
 Court granted certiorari,    later reversing   without prejudice        after
the New York statute was amended. which action casts a cloud on
                                                                                  .




Hon. Robert   S. Calvert,   ~Page 14 (V-1271)



the New York cases as authority on the subject.] ; Commonwealth
v. Rling, 13 A.2d 104 (Pa. Super. 1940). citing Pennsylvania          cases,
holds that slugs good for replay have no “intrinsic”        value contem-
plated by statutes as theretofore     construed;   Gayer v. Whelan, 138
P.2d 763 (Cal. Dist. Ct. of App. 1943). cites cases to the effect
that free plays are not of “material     value,” “sufficient    value,” or
“tangible value, ” to constitute “things of value,” and concludes that
intangibles .are not contemplated     by the particular   statute which
speaks of winning or losing “merchandise,         money, or articles of
value, checks, or tokens, redeemable        in, or exchangeable    for money
or any other thing of value;”     State V. Betti. 42 A.2d 649 (N.J.      Ct. of
Quarter Sessions    1945). reversing    34 A.2d 91, D,        holds free
games to be of recreational     or amusement      value only and not within
statute condemning plays for “money or other valuable thing.”

          The foregoing amply demonstrates      the basic considera-
tions upon which the decisions   in other states turn. A brief exami-
nation of the Texas cases should sufficiently    indicatetheir  conso-
nance with the first line of authorities  set out.    I

           The first Texas~ case of significance     is State v. Langford,
e,        considering  free game “marble machines”         under Article
619c’V.P.C.,    which prohibits gaming devices where “money or any-
thing of value is bet thereon.”      Noting that the Arkansas    Statutes
are “similar    in practically   all respects”  to the Texas Statutes, the
court quotes at length that portion of the opinion in the Rankin case
concluding that “property” and “valuable thing” are used synony-
mously and that “any valuable thing or ‘any repres.entative         of any
thing that is esteemed of value’ is ‘property’ within the meaning of
the ,Arkansas Statutes.”       The opinion also quotes at length the dis-
cussion in the Rankin case of the value of amusement          places which
 “are among the most remunerative         kinds of property,”   [See complete
quotation from the Rankin case at page 5, supra.]          For this and other
reasons,,the    machines were held to be gaming devices.

          The Texas Court of Criminal Appeals in Broaddus v. State.
s,      arso held free game marble machines to be in violation of
Article  619, V.PiC.   The court quotes verbatim the opinion in the
Langford. case, including the extended quotation tbereirrfrom  the
Rankin case indicating the property characteristics   of amusement.

         In holding that “pinball” machines  awarding free games
were used to bet “money or anything of value/    as prohibited by
Article 619, the court in Hightower v. State, sa     evidently with-
      Hon. Robert    S. Calve&    Page   15 (V-1271)



      out the benefit of the Broaddus case, also cited. the Rankin and
      Langford cases,    as well as. others previously   noted in that line of
      authorities.   The citations to the Rankin case and Kraus v. City
      of Cleveland,   z,     are of particular  signific~ance in that they
      hold free games to be “property.”

                The Court of Criminal Appeals followed the Broaddns
      case on its next consideration  of the marble machines’in    Martin
      v. State, 6~     where it also held that the trial court need not de-
      fine a gambling device in its charge where the undisputed evidence
      showed that free plays are awarded by the machine.

                    -To the same effect is Williams Mfg. Co. v. Prock; 86 F.
      Supp.     447 (N.D. Tex. 1949). citing the Hightower and Broaddus
      cases.       The P&ock case was affirmed at i84 F.2d ‘30
      1950),     the la-urt       observing that to defeat a note given in pay-
      ment     for such free game pay-off devices it need only be shown:

                ”. .r. that by the law of that State [Texas,] they were,
           when exhibited, gambling devices,      and their ‘existence’
           contrary to the public policy, as well as the specific law
           of that State.”

               Lastly, in this regard, we call attention to the attitude of
      the Texas Courts on lottery and similar schemes       where, by a pro-
      cess of disassembling   the stages of a gift enterprise,  attempts
      have been made to classify the prizes given a,s “free” awards, and
      to remove the element of consideration     from such schemes by so-
       called “free’ tickets and registrations     for the drawing.      As best
       illustrated  by the cases cited in Hoffman v. State, 219 S.W.2d 539
       (Tax. Civ. App. 1949), the courts of this State do not hesitate to
I:    -hold ~that any&direct    consideration,   such..asadded..patronage      to a
i.
       place of business,    moving from any of the participants       to then giver
       of the prize, will support the charges of conducting a lottery.          The
1;.
       analogy here is in the substance which the courts accord to other-
1 :    wise intangible and elusive values in giving effect to the anti-
       gambling statutes.     As said in a quotation in the Hoffman case of
       such a scheme,     “there is an indirect consideration      paid and re-
[
       ceived. *   The Hoffman    case is  also in point  on free  games, being
        “things of value, “‘and cites the Langford and Hightower cases.

                The Texas cases, deal primarily   with:Article 619,~V.P.C..
       which says that any of the described devices shall be considered
       as used for gaming “if money or anything of value his bet thereon.”
Hon. Robert   S. Calvert,   Page   16 (V-1271)



In arriving at the determination  that free games are “of value,”
the Texas Courts have accepted and followed the reasoning of the
Rankin case that they are “property” and that in gaming s,tatutes
the word “property” is synonymous      with “thing of value.”   We
cannot es,cape the Texas Court’s observation     in State v. Lang.-
ford, supra, that the Arkansas and Texas Statutes are “similar
inpractically  all respects”  and the fact that the Texas Court
quoted with approval these wo,rds from the Rankin cas,e:

         “Is the right to play a game      obtained in the above
    manner ‘property’ or a ‘thing of       value’ within the mean-
    ing of our statute prohibiting the     setting up of gambling
    devices and gambling?     We think      it is.”

          These same words were recopied by the Texas Court of
Criminal Appeals in Broaddus v. State, supra, and their use in
that case led a former Texas Attorney General, in Opinion No.
O-6431,  May 22. 1’945, to conclude:

          “It would follow from this then that the right to
    play the machine is ‘Property’ or ‘a thing of value,’
    therefore,      ‘one who deposits a coin and receives only
    one play gets value received in the form of amuse-
    ment, in like manner, as one who pays a fee to play
    a game of miniature golf or other game of amuse-
    ment.     . ..”

          It is proper to assume that the Legislature     knew ~of these
decisions  by the Texas Courts and that the Legislature      used the
word “property”     in the sense of its previous judicial interpretation
in this State-~ .Smithv.   Texas Co., 53 S.W.Zd 774 (Tex. Comm. App.
1934); Blanscet v. Palo Duro Furniture Co., 68 S.W.2d 527 (Tex,
Civ. App. 1934).

            Either “property”   or “other valuable thing” would include
free g,ames under these decisions,      and it would be improper and
unreasonable     to assume that the Legislature,    in selecting the word
“property”     in Section l(b), intended to adopt the restricted   sense
applied by a minority of the States rather than the broad sense ap-
plied by the Courts of Texas, the Attorney General of Texas, and
the great weight of authority in the United States.
     I...
          :-The word “deliver” may suggest the idea that “property”
awarded by prohibited devices is. intended to mean physical property.
                                                                               291
Hon.   Robert~S.   Calvert.   Page   17 (V-1271)



Neither term is so restricted     in the statute and both are very
generally   used in the broader sense.        Webster’s    New interna-
tional Dictionary,   2d Ed., gives as the first definition of the~word
 ‘deliver:”  “To set free from restraint;      to set at liberty; to re-
lease; to liberate,  as from control; to free.”        Other definitions
given are: “To give or transfer;      to yield possession     or control
of; to part with; . . . to surrender;    . . . to communicate;    impart.”
The synonym given is “release.”         Free games are delivered to
the winner on marble and pinball machines by the automatic re-
lease of the mechanism      for replay.

            If the Legislature     had desired to limit the term “prop-
 erty” to physical property,       it could have written the word “phy-
 sical” into the definition.      This it did not do, and we are not con-
 strained to do so by interpretation.        Such a construction   would in
 effect hold that the Legislature       intended to exempt free game
 pay-off machines       from the new law although their only possible
 use is a penitentiary      offense under Article 619, V.P.C.,     and their
 mere existence       is declared   *against public policy and a public
 nuisance” in Article      634, V.P.C.      This would be an unreas,onable
 construction     and one which conflicts with the public policy of this
.State with reference      to these precise machines.     Statutes should      )
 be construed so as to harmonize with the public policy of the State
 as expressed      in other statutes relating to the same type of gam-
 ing devices.     McBride     v. Clayton, 140 Tex. 71, 166 S.W.2d 125
 (1942); Dolan v. Walker,        121 Tex. 361, 49 S.W.2d 695 (1932);Freels
 vi Walker,     26 S.W.2d 627 (Tex. Comm. App. 1930).         In the McBride
 case the court quoted the following language from 59 C-J.. p. 1038,
 Ei 616:

             “All statutes are presumed to be enacted by the
       legislature   with full knowledge of the existing condition
       of the law and with reference      to it. They are therefore
       to be construed in connection and in harmony with the
       existing law, and as a part of a general and uniform
       system of jurisprudence,      and their meaning   and effect
       is to be determined     in connection, not only with the com-
       mon law and the constitution,      but also with reference   to
       other statutes and the decisions of the courts.”

          Therefore,   we conclude that the Legislature   used the
word “property”    in the broad sense which includes free games,
and that no other words were necessary     either in Section l(a) or
l(b) to bring free games within the definition of a slot machine.
292   Hon. Robert   S. Calvert,   Page   18   (V-1271)



                 We have been submitted very able briefs by interested
      attorneys who contend that a contrary interpretation        is proper
      because they say *other valuable thing ” is the term which covers
      free games and that it was used in Section l(a) and purposely
      omitted from l(b).      This entire argument is based upon the er-
      roneous assumption that “valuable thing” is synonymous with
      “free games” and used in Section l(a) for the sole pu.rpose of
      covering free games.       As heretofore    shown, the term ‘property”
      in l(a) and, l(b) is broad enough to cover frees games.       The addi-
      tion of the term “other valuable thing” in Section l(a) must have
      been for the purpose of covering something other than free games.
      The devices covered by l(a),and commonly known as the one-arm
      or console slot machines,       do not ordinarily pay off in free games.
      The term “other valuable thing” might have been placed in Sec-
      tion l(a) to make certain that it covered slot machines which de-
      livered any conceivable, prize other than money, tokens, free games
      and merchandise,      or in an attempt to prevent their existence and
      possession   for amusement play even when no prize of any nature
      is awarded.     Whatever the reason, we cannot say that it was solely
      for the purpose of preventing payment of free games and that its
      inclusion in l(a) and omission      in l(b) was intentional on the part of
      the Legislature    for the purpose of condemning free game prizes on
      machines described       in l(s) and exempting them from condemnation
      as prizes on machines described        in l(b).

                 The briefs submitted by counsel who urge the contrary
      view insist that the definitions in the Texas Act are borrowed from
      the Federal Anti-Slot    Machine Act [P.L. 906. Elst Congress    of the
      United States,19501   except for the addition of “other thing of value”
      in Section l(a); that the Federal Act omitted the words “other thing
      of value” and used only ‘“money or property” so as to exclude free
      game machines from the Federal law; that the history of the Federal
      Act, as shown by the House Committee        hearings and report, shows
      that “money or property” was not intended to cover free game pay-
      off machines;   that in borrowing the definitions of the Federal Act
      the Texas Legislature     must be presumed to have intended the term
      to mean the same as Congress       intended in the Federal Act; and that
      by adding “other valuable thing ” in Section l(a) and omitting it in
       l(b) the Texas Legislature   intentionally  excluded free game pay-off
      machines from H.B. 326.

                 There are many reasons why we cannot give controlling      ef-
      fect to this aid in interpreting legislative intent. In the first place.
      we do not~believe that the wording of the Texas Statute is ambiguous so
.
                                                                                   293
    Honr RobertS.    Calvert;   Page   19 (V-1271)



     as to require the application of this. aid in its construction.     Even
     so, the rule-that a legislative  act borrowed or adopted from the
     laws of another jurisdiction    will ordinarily be given the same con-
     struction in Texas that it had previously      received in the jurisdic-
     tion from which it was borrowed,       applies only when there has been
     previous judicial interpretation     of the law in the other jurisdiction.
     We know of no such interpretation       of the terms ‘money or property”
     in Public Law 906. Even when conditions of the rule have been met,
     the rule is a mere aid in legislative     interpretation  and is by no means
     binding or conclusive.     Snoddy V. Cage, 5 Tex. 106 (1849); Paragon
     Oil Syndicate v. Rhoades Drilling Co., 277 S.W. 1036 (Tex. Comm.
     App. 1925).    When there are conflicting court decisions       in other
     jurisdictions,  Texas Courts are free to adopt a reasonable        con-
     struction of the meaning of the terms in question.        Howth v. J., I.
    ,.Case Threshing Machine Co., 280 S.W. 238 (Tex. Civ. App. 1926, er-
      ror ref.).

             Secondly, in no instance have we found the rule applied
  when the courts of the borrowing state have previously           given a con-
  trary interpretation    and meaning to the words used in the borrowed
  phrase or sentence.      A State Legislature    is presumed to know of
  the decisions ,9f its own courts and ~to intend the meaning previously
   attributed by them to the same words in similar legislation.          Smith
  .v. Texas Co.,, .s;      Blanscet v. Palo Duro, supra.        Further, the
   rule of applying a foreign meaning to borrowed phrases never ap-
   plies when suah constiuction     is’contrarv   to the spirit and. nolicv of
   the jurisprudence   of Texas.    Paragon Oil Syndicate v. Rhoides,        su-
   pra; Edwards.hffg.    Co. v. Souper
   Civ. App. 1926’):. It is certain that the construction     placed on the
   terms of the Federal Act (restricted       use of the word ‘property”
* so as to exclude free game~pay-off        marble and pinball machines) is
   contrary to the spirit and policy of Texas law on the subject of gam-
   ing. See Articles   619 and-634, V.P.C.;     State v. Langford.    supra;
   Broaddus v. State, SE,        Hightower v. State, supra; Martin v. State,
   supra; and Prock v. Williams      Mfg. Co., 184 F.2d 307 (C.C.A.       5th
    1950).

               Finally, there are other aids to statutory construction     of
     equal standing and of far more importance       in this instance in deter-
     mining the intention of the Legislature.      These include the public
     policy of the State with reference    to the subject matter, which has
     already been discussed,     the old law. the evils sought to be cured,
     and the legislative  history of the particular   Act under consideration.
     The old law, which was not repealed, classifies       free game pay-off
294   Hon. Robert   S. Calvert,   Page 20 (V-1271)



      machines with all other gaming devices as unlawful and against
      public policy in Texas.   The evil sought to be cured by H. B. 326
      is the mere possession    or existence   of “illegal gaming devices
      . . . kept and operated in this State and taking money from school
      children and others in large sums . . . and the fact that present           .,I
      laws are not adequate to suppress their profitable operation . . . .”
      Sec. 9, H.B. 326 (Emergency     Clause).                                    ;;g
                                                                                  -c:
                 It is a matter of common knowledge from the public press         Y$;
      and public statements     of those sponsoring    H.B. 326, and the com-       .i_
      panion Senate Bill (S.B. 323), that free game marble and pinball             ‘Tt
      machines were one of the evils intended to be more effectively        sup- ;;i
      pressed by the Act.      While H.B. 326 was pending before its passage        ~7;
      by either House, one of its authors, Representative        James B. Adarns,:&~:
      ,made a public speech explaining the purpose and scope of the pro-          .,$
      posed law to a conference      of the State’s prosecuting   attorne s called ‘>y~
                                                                            In the :c
      by the Attorney General of Texas in Austin on March 30-31. 3
       course of his explanation of the evils proposed to be remedied by H. ‘MY
      ~B. 326, Mr. Adams said:                                                      ,,f
                                                                                    ,,;;
                  “Then under section (b) we go down and take in any
            machine or mechanical      device 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 ap-
            plication of an element of chance, any money or property.
            Well, as you know, our Court of Criminal Appeals has held
            that free plays on a five-ball   pinball machine does-con&i-
            tute something of value and, therefore,      under our present
            law every five-ball   pinball machine placed in operation in
            youid~rugstores,    your bus stations, and places like that,          “” j.
            they do constitute a violation of our present gaming laws.

                 “Many people said, ‘Well, they are just an amusement
           device.’  But we felt otherwise on that; and. as a result of
           studying the’crime   reports of the different crime commis-
           sions, we have had it pointed out to us time and time again
           where pinball machines,     so-called harmless  amusement   de-
           vices only, are utilized for opening up closed territory  to



            2/   Proc$edings  of the Attorney General’s  Conference  of
      Dist&t     and. County Attorneys   on Organized Crime,  1951, pp.
      58-63.
.   --
                                                                                   295
         Hon. Robert   S. Calve&   Page   21 (V-1271)



             gambling.   They start off with those, and then through
             a steady process  they get the people acclimated   to gam-
             ing. Then they can bring in their regular one-armed
             bandits and consoles.

                  ~ *Now under this law. under Section (2) if they take
             th:counting    devices off of the machines   -- every.slot
             machine manufacturer       since 1946, as most of you know.
             has had two little devices under the machine.       One of
             them, every time you win a free play. registers.        You
             have a button on the left which is your re-play button.
             Every time you push that button it registers      on one of
             the counters ovei here.       Then when a man pays you off,
             it has a sepagate counter over here. If you just re-play
             it, the re-plays   show on this one. But if it pays you off,
             he reaches under the back at another button, presses        it,
             and it registers    on an automatic counter.    Therefore,when
             the local coin machine operator comes around to his es-
             tablishment,    they raise up the machine and look at the
             counter and see how many games have been won on the
             machine.     Then, if he is in the habit of paying off his cus-
             tomers when they win, they look at this other counter and
             they can determine     just how much this man paid out in
              cash.

                    “Well, if they take all those off and fix the five-ball
              pinball machines where they do not show a re-play,           -- :
              where after you get so many thousands in score on the
              machine ,it shows ‘a re-play up on the board,     --   well, if
              they take those devices off, then they would not come under
              then terms of this act. However, if they do go that far, then
              you can rest assured that it is an amusement       device be-
              cause a man has to put a nickel in it every time he plays
              it. And also, even if the man does say, ‘Well, if you get so
              many thousand I will pay off over the counter,’ you can elimi-
              nate about 90 per cent of the gambling, unless the man owns
              the machine.     No operator is going to trust the local drugstore
              owner or local beer joint operator to tell him how much he
              paid out because,    as we have been previously    shown, there
              is no honor among thieves; and if they don’t have that auto-
              matic element of being able to tell exactly how much was
              paid off, well.then we will eliminate the gaming aspects from
              these amusement-only      machines.”

                   Both the evils to be remedied by and the history of H.B.
          326 vary greatly from those of the Federal law. The Federal author
Hon. Robert     S. Calvert,    Page 22 (V-1271)



ities and most of the Federal courts have not considered    free game
machines an evil to be eliminated.   They do not consider free games
to be either “property” or ‘a thing of value.“.  The history of Public
Law 906 shows that machines awarding free games or amusement
only were to be excluded from the use of the words ‘money or prop-
erty. m In Texas it was quits different,    Free games have long been
considered   “property” or “a thing of value” and free game machines
have been condemned as gaming devices and against public policy.
The history of H.B. 326 in the Texas Legislature    shows that free
game machines were intended to, be included rather than excluded
from the Act.    The best recorded evidence of this fact is the defeat
of an amendment on the floor of the House which had as its purpose
the exemption of certain free game machines from Section l(b) of
the Act.

             Representative    Beno Tufares    offered    the amendment   to
Section    l,(b) as follows:

           “Amend HiB. 326, line 34, after ‘property’;  and be-
     fore ‘or’ by inserting the following: ‘except pinball ma-
     chins:of 5 balls which allow free games up to 10. band free
     games only.’ n3

            This amendment was tabled by a vote of 104 to 28. It is
 strong evidence that the Legislature        considered    the word “property”
 as including free games and that there was no desire ‘to exempt any
 type of free game machines.          It~has been argued that it is just as
 reasonable    to conclude that free game machines were already ex-
 cluded and the amendment was therefore            unnecessary.     To be sure
 that our interpretation     is not in conflict with what actually tran-
 spired on the floor of the Houses in connection with this amendment,
 we have obtained statements        from the author of the amendment,
 Representative     T.ufares, and from Representative        Adams, who. as
 author of H.B.. 326, moved to table the Tufares amendment.              Evi-
 dence as to what was said in legislative         debates by sponsors    of a
 bill is sometimes     admissible     to aid in construction    of an ambigu-
 ous statute..    Ex parts Peed,,      170 S.W.,749   (Tex. Grim. App. 1914).
.Since this aid is being used here only for the purpose of counter-
 ing arguments based upon similar evidence {statements               made in
  Congressional    Committees]      as to the intent of Congress’ in Public
 Law 906, we feel free to consider and quote the written statement



     2/    ,House Journal,     52nd Legislatur;,   page    1369.
Hon. Robert    S. Calve&       Page 23 (V-1271)



of Mr.   Tufares,   affirmed    by Mr. Adams,     as follows:

           “Representative    Jimmie Adams, the author of
    the bill, in explaining the purpose and object of the act
    and what was covered thereby, said on the floor of the
    House that it would make unlawful all slot machines,
    marble tables and pinball tables which paid off in mon-.
    ey, free games, or any other type of property.          He said
    the definition of Section l(b) covered ‘free game’ ma-
    chines because the Texas courts had held- any token or
    free game to be property under the Texas gambling flaws.
    He said that ‘five,ball’ marble machines         which paid’off
    in free games would’be prohibited under this bill;           Con-~
    sidering a’five ball marble table to be” a; game. of skiii”         ~
    rather than a game of chance. I offered the amendment.
    reported in the Journal excluding those that offered~ up
    to 10 free games.      I told the House in debate that my
    amendment was’ necessary         to exclude, five ball ‘free
    game’ marble tables’~ (up to 10 free games) from the a& ”
    upder consideration.~      No one made ‘any.argument      that
    free game machines’werealready            excluded under ‘then’ ,. .,
    bill,and no one disputed the author’s statement that they.
    would come under the act as worded.           The author did say
    that if the free game device was eliminated         from the five
    ball machines,     they could still be possessed     and operated.
    Rep. Adams opposed my amendment with the argument on
    the floor that permissionof        10 free games on marble ta-
    bles .might lead to conversion       of slot machines to .that
    method of operation,      and my amendment was defeated.”

         Consideration     of the suggested aids in construction   of am-
biguous statutes merely      confirms our interpretation  of the plain
words of the statute.itself;~

          You are therefore    advised that coin-operated   pinball or
marble machines which are designed, manufactured          or adapted,   ~’
so that when operated they may deliver to the winner, as a re-
sult of the application of an element of chance, money, free games,
or other~property    are included within the provisions   and penalties
                                                                   :.
set out in H.B. 326.

                                 SUMMARY

           The keeping     or’exhibition   of coin-operated     pinball
298   Hon.. Robert   S. Calvert,   Page   24 (V-1271)



          or marble machines which pay off the winners auto-
          matically  in money or free games have been held by
          the Texas Court of Criminal Appeals to be in violation
          of Article 619,.V.P.C..      and therefore a felony offense.
          Under Article.634,      V.P.C..  they are declared to be
          against the public policy and a public nuisance,       Williams
          Mfg. Co. v. Prock, 184 F.2d 307 (U.S. Ct. App., 5th Cir.
          1950).

                The manufacture,    ownership, transportation,  posses-
          sion, etc., of coin-operated   pinball or marble machines
          which are designed, manufactured       or adapted so as to
          deliver to the winner, as a result of the application of an
          element of chance, money, free games, or any other.
          property,   are prohibited by H.B. 326, 52nd Legislature,
          1951 (Art. 642a. V.B.C.).

                 The term “property”    is used in Section l(b) of H.B.
           326 (Art. 642a, V.P,C.)   in its broad sense so as to in-
           clude free games, this construction     being in accord with
           ~Texas court decisions ,and the weight of authority in other
           jurisdictions.

                                                 Yoys     very truly,

                                                  PRICE     DANIEL




                                                        Assistants

      NMcD/JF    J/mf



               ~Considered     and approved     in conference        this 5th day of
      September,  1951.




                                                 Attorney     General
