                         Q?Mce of tfy !Zlttornep @eneral
                                 &ate of PCexae
DAN MORALES
 ATTORNEY
      GENERAL                          April 20,1992




     Honorable Ron Lewis                  opinion No. DM-112
     chairman
     Natural Resources Committee          Re: The legality of “casino night” fundraising
     Texas House of Representatives       by nonprofit organizations (RQ-284)
     P. 0. Box 2910
     Austin, Texas 78768-2910

     Dear Representative Lewis:

             You ask about the legality, under the gambling laws. of a charitable fund-
     raising event which you describe as follows:

              Admission for the patrons of this event is paid for on a table by
              table basis. A main attraction at this event is a large room full
              of casino games.. . . [Platrons would present a verification of
              their reservation for a table and then would be. given a certain
              amount of chips (more of which could be purchased during the
              night). At the close of play, they would then enter a room where
              they could “purchase” prizes. These prizes would be donated by
              local merchants.

           Section 47.02(a) of the Penal Code provides in part:

                  A person commits an offense if he:

                      (1) makes a bet on the partial or final result of a game
                      or contest or on the performance of a participant in a
                      game or contest;

                      . . . .




                                           p.   566
Honorable Ron Lewis - Page 2                       (DM-112)




                      (3) plays and bets for money or other thing of value at
                      any game played with cards, dice, or balls. (Emphasis
                      added.)

“Ret,” for purposes of section 47.02, is defined as “an agreement that, dependent on
chance even though accompanied by some skill, one stands to win or lose something
of value.” Penal Code 5 47.01(l). In our opinion, those participating in the event
you describe would be “making bets” within the section 47.01 definition of “bet” and
the section 47.02 provisions making it an offense to “make[] a bet.”

        Attorney General Opinion JM-412 (1985.), in considering the legality under
sections 47.01 and 47.02 of a “casino night” sponsored by a school district, noted that
“in Texas, three basic elements comprise the offense of gambling: consideration,
chance, and prize.” Attorney General Gpiion JM-412 at 2; see also Odle v. State,
139 Tex. Crim. 288, 139 S.W.2d 595 (1940), ovemrled on other grounds, Green v.
State, 578 S.W.2d 411,413 n.1 (Tex. Grim App. [Panel Op.] 1979); EUisv. State, 80
Tex. Crim. 208,209,189 S.W. 1074,107s (1916, no writ). The fund raising event you
ask about appears to satisfy this definition: the admission fee and any other sums
paid for “chips”by participants would constitute “consideration,” the “casino games”
would presumably involve “chance,“1and the chips retained by participants at the
close of play as well as the items donated by local merchants which the chips could
be used to purchase would constitute “prizes.

       We note that section 47.02(b) of the Penal Code provides that “it is a defense
to prosecution under this section that:”

                 (1) the actor engaged in gambling in aprivuteplace;

                 (2) no person received any economic benefit other than
                     per-al winnings; and



        lwe note   that a recentattorney general option anlcludcdthat in orderto w withinthe stale
constitution’s rcslriclions 011‘lotteries,’see Tex. Coo&. art. III, 0 47, the Yhame” element of a game
must prdodate        owx tbc. element of skill. See Attorney General Opinion JM-1267 (1990) (and
antbolitics cited lherein). Tbe opinion noted, bowever, that the dlaptw 47 Penal code proh.iitioaJ on
gambling are broader than the constitutional restrictions on ‘lotteries and that they “effectiwly
prohibit thcec. types of games typically conducted in gambling casinos.’ See a&o Seamy & Patterson,
huctice Cinnmem,      Tu   Penal Code 0 47.02 (Vernon W73).




                                              p.     567
HonorableRonLewis       - Page 3          (DM-112)




              (3) except for the advantage of skill or luck, the risks of
                  losing and the chances of winning were the same for all
                  participants. (Emphasis added.)

“Private place” is dehned in section 47.01(7) of the Penal Code, in part, as “a place
to which the public does not have access. You say that the fund-raising event in
question would be held at the Plan0 Civic Center. Your description indicates that
the general public would have access. Accordingly, the event would not fall within
the defense set out in section 47.02(b). See, e.g., Co& v. Stute, 28 Ten App. 536, 13
S.W. 859 (1890) (schoolhouse a public place even while building not being used for
school purposes).

       We also note that in defining “bet,” section 47.01(l) of the Penal Code
provides that

              [a] bet does not include:

              . . . .


                   (C) an offer of merchandiie, with a value not greater
              than S2S, made by the proprietor of a bona fide camival
              contest conducted at a carnival sponsored by a nonprofit
              religious, fraternal, school, law enforcement, youth,
              agricultural, or civic group, if the person to receive the
              merchandise from the proprietor is the person who
              performs the wmlvof wnmt; or

                  (D) an offer of merchandise, with a value not greater
              than $25, made by the proprietor of a bona fide camival
              contest conducted at a canrival sponsored by a nonprofit
              agricultural or civic group incorporated by the State of
              Texas prior to 1955. (Emphasis added.)

You have not characterized the event you ask about as a “camival” or the casino
games to be played there as “camival contests.” Determining whether the event
would qualify as a “carnival,”or the games as “carnival contests,” withhr the meaning
of the section 47.01(l) exception to the definition of “bet,” would require




                                          p.   568
HonorableRonLewis          - Page 4            (DM-112)




consideration of facts which we do not have before us.* See WEBSTER’S NINTH
NEW COLLEGIATEDICTIONARY208,209 (1987) (defining “camival” as, inter alia,
“an organized program of entertainment or exhibition”). But see, Health & Safety
Code ch. 824 (providing licensing requirements for “circuses, carnivals, and zoos”);
id. 9 824.001(4) (defining “camival” as “a commercial variety show featuring animal
acts for public entertainment”)?




                Those participating in “casino games” at the descriid non-
           profit charitable organization fund-raising event would violate
           the Penal Code section 47.92 prohibition on gambling - “making
           bets” - unless, as a matter of fact. the “casino games” in question
           fall within a “carnival contests” exception to the definition of
           “bet”in the Penal Code section 47.01(1)(C) and (D).

                                                          Very truly yours,



                                                          DAN      MORALES
                                                          Attorney General of Texas




         3iavin.g determined that, uakss the ‘candval contest” ucmptions to the dehition of w
appIy, those partSparIng In the casino gamma at the tx.nt you ask about woutd violate the se&m 47.U2
prohIbition on gambling “making bets.’ We do not think it nccwary to determine here wkthcr or to
what cent the event would implicate other chapter 47 penal pwxisions. See Penal Code % 47.03
(gambling promotion), 47.04 (keephg a gambling place), 47.06 - 47.07 (paascarioo of gambling de&e,
equipment, or paraphemalia).



                                              p.   569
Honorable Ron Lewis - Page 5         (DM-112)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAI-mm
Special Assistant Attorney General

MADELElNE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




                                     p.   570
