Honorable   Dwight Whitwell               Opinion   NO. O-5068
Criminal   District Attorney
Collin   County                           Re:   Under the facts   submitted,
McKinney, Texas                                 does giving  the free music
                                                as a prize constitute    both
                                                the marble machine and the
                                                music box a gaming table
Dear Sir:                                       or gaming device?

            This will be in reference   to your letter   requesting
the opinion   of this department on the above stated question
and other related    matters.  With reference    to the facts  sub-
mitted,  we quote as follows   from your letter:

                “We have several      persons who own a varying
         quantity    of marble tables      which they have placed
         in numerous places      of business       over this county.
         Along with each marble table           is also placed a phono-
         graph or music box containing            automatic    record   plag-
         ers in which can be dropped a nickel             and the custom-
         er may select     the particular      tune he desires        to hear.
         The marble tables      themselves     do not pay off any-
         thing in money or prizes         but most of the marble
         tables    are connected     to the music boxes by an elec-
         tric   cord so that when a player places             a nickel
         in the marble machine and plays a game of marbles
         and hits a certain       required    score a record       in the
         music box automatically         begins playing.         If the
         player    so desires   he may push a button on the
         music box before      he begins     playing    the marble
         game and thereby      select    a particular      piece of
         music he desires      to hear in the event he strikes
         the required     score on the marble table.             There is
         no other prize      or pay-off     on the marble tables.”

               Based uponthe        foregoing     statement    of facts,     you have
posed     several   questions.        For the   first   one,   we quote    from your
letter     as follows:

                “Question  No. 1. Does this combination  in
         giving   the free music as a prize constitute  both
         the marble table and the music box a gaming table
         or gaming device?”

            Article   619, Vernon’s  Annotated Penal Code, deals ti81
the offense    of keeping or exhibiting    gaming tables,  banks, and
other devices     used or exhibited  for gambling purposes,   and in
part provides:
Honorable   Dwight Whitwell,      page   2



            “Any such table,   bank, wheel, machine,   or device
      shall be considered    as used for gambling,   if money
      or any thing of value is bet thereon.”

             The Texas courts have held that “a thing of value”
referred    to in the above article,       includes,   among other things,
free     ames won on marble tables,      State v. Langford,     144 S.W.
  2d) f48, Broaddus v. State,        141 Tex. Cr. R. 512, 150 S.W.
I 26) 247, Hightower     v. State,    156 S.W. (2d) 327, writ of error
refused;    tokens won on a machine        ood for trade-in   on merchan-
dSl~, Mills     v. Browning,    59 S.W. ? 2d) 291, Moore v. State,     91
         2d) 447; and money won on a machine, Houghton v. Fox, 93
s:w:   I            A selection    of music won on a marble table would
likewiEt)c%titute        a “thing    of value”   within the statute   and
hence the marble machine would be considered            as used for gaml%ng

             The followin    is a quotation from the case of MSbovI.1
v. State,    118 S.W. (2d f 615, as to what the court   considered as
constituting    “gaming    :equipment”:

              . . . . the evidence      offered   was sufficient      to
      sustain     findings     to the effect     that the property       the
     sheriff      seized at the location         given belonged     to the
     appellant       and was being then and there used by him in
     connection        with a bookmaking shop with reference             to
     horse racing;         that the blackboards        referred   to were
     likewise       being used by him to write the results             ,of
     the races upon; and that the loud speakers,                  which were
     connected       with a radio,      were also being used by him
     for the purpose of announcing              the results     of the
     horse races to many persons assembled                 for the purpose
     at that place,          who had tickets     showing that a bet had
     been made on such horse races;              in other words, the
     appellant       had been using his place there for the pur-
     pose of promoting betting             on horse races by means of
     pool selling,         and   In connection     therewith    and in fur-
     therance       thereof,    he had been so using the seized
     property .”

The court took the view that since betting     on horse races              thrcu$-~
pool selling    was gambll,ng. the property used In connection              then+
with constituted     gam iog equipment.”

            Since it is the opinion       of this department    that the
circumstances     surrounding    the playing   of the marble machine under
discussion    is gambling,    the phonograph or music box used in
connection    therewith,    as a part thereof.     and in the furtherance
of playing    the machine constitutes       “gaming    equipment” condemn-
able under the statute.

            For your next   question,     we again    quote   from your    letter:
Honorable    Dwight Whitwell,       page 3



              “Question     No. 2.   Since these machines are dis-
       played in public       places  such as restaurants     and
       sandwich stands       and so forth,  where the general ~pub-
       lit   Is invited,     can an officer   go into these places
       and seize    these    machines without   the necessity     of
       first   securing     a search warrant?”

           The court  in the case of Moore v. State,               91 S.W. (2d)
447, said the following   with reference to searching               and seizing
gaming equipment at public    places:

              “The Constitution     and statutes     do not prohibit
       every character      of search and seizure       without a war-
       rant, but prohibit      unreasonable     searches    and seizures.
       These machines were operated         for gaming purposes        in
       public   places   to which the entire       public,   including
       the sheriff     and his officers,     had access.      He had ac-
       tually   seen parties    gambling on at least        a part of
       the machines involved.        There was no unlawful entry to
       make the seizures.       The court     passed on probable       cause,
       and, In our opinion,       under the facts,      were authorized
       to find that the defendant        in this case acted on
       probable    cause .I’

Also to the same effect  are Raker v. State,   131 Tex. Cr. R. 626,
101 S.W. (2d) 816, Judge Looney’s  opinion   in Hightower v.
State, supra, Lee v. State,  140 Tex. Cr. R. 155, 143 S.W. (2d)
389.
           It Is the opinion  of this department,             under the facts
as submitted,  that if the officer    had sufficient           probable cause
that the equipment was being used for gambling,               a seizure of U-e
equipment could be made without    first  securing           a search warrant

             For the    third   question,    we quote   from your    letter:

              “Question    No. 3.   Would the fact that the officer
       finds   the marble table connected       to the music box by
       an electric     cord be sufficient    evidence  upon which to
       secure   a confiscation     order or would it be necessary
       for the officer      to play the marble table and actually
       secure   a piece    of music free,  or, of course,   to see
       somebody else do this?”

           The court   in the case of Hightower   v. State,             supra,
had the following    to say with reference  to the evidence              neces-
sary to secure an order of the confiscation     of so-called              gam-
ing equipment:
             11.*. The statute   does not expressly  classify
       marble boards,     or like devices,  as inherently
Honorable    Dwight Whitwell,          page    4



      offensive;        hence the question             of illegality         must hinge
      upon the nature of their                 actual     use.      'A slot machine,
      it has been said,              is not per se a gambling device,
      since     it may be used or played upon for innocent                          pur-
      poses;     and the courts            cannot,     therefore,        take judicial
      notice      that every slot machine is a gambling device,
      since the use to which it has been put must determLne
      its character.'               24 Amer. Jur. B35, supra.                 'A gaming
      table     is not determined            by its structure,            but of the
      purpose for which it is exhibited';                      Houghton v. Fox,
      Tex. Civ. App. 93 S.W. (2d) 781, 782; and in all an-
      notations        under An. 619, Vernon's              P.C. Vol. 1, p. 566,
      where this phase of the statute                    has been considered,
       it is uniformly            stated that 'Whether or not the table
      was designed           for gaming purposes           is immaterial          . . .
       it is the game or character                  of play on it that deter-
      mines its status.             ’ It would follow,           therefore,        that
      the marble machines of the 'non-pay-off'                           variety,     as
      to which no evidence               is adduced of their being used
      for gaming purposes              at the time of seizure,               are not
      gaming devices            within     the inhibition        of the above
       statute;      for,      no matter what the structure                 of these
      particular         boards may be, whether games of chance or
      of skill,        they are not to be classed                 ipso facto       as
      gambling devices,              so long as not used for gambling
      purposes;        i.e.,      where no money or thing of value is
      bet thereon.             An entirely       different     situation        would
       exist    if, by mechanical             adjustment,      the machines w,ere
      made to pay off;              or if an understanding             be had with
      the proprietor             'over the counter'          to the same effect:
       or in case of knowledge,and                  acquiescence         by the
      machine keeper to a wagering by players                           upon result-
       ing scores.           The machines would then become gambling
       devices      per se, placing           the defendants          factually
      within the purview of Houghton v. Fox, suprz; but such
       evidence      is wholly absent from this record.

          In Callison    v. State,   146 S.W. (2d) 468, the court
held that in order to condemn property       that might be used for
gaming and authorize   its destruction,    it must be shown that such
property was designed    for gaming and was, at the time of seizure,
being used for gaming.

            Therefore,     it is the opinion      of this department that
merely finding      the music box connected       to the marble machine
would not be sufficient        evidence   to secure a confiscation       order.
That before    such an order could be secured there must be some
evidence,   whether offered       by the peace officer     from his observa-
tion or knowledge,       or offered    by others from their     observation
or knowledge,     that by a mechanical       adjustment   between the music
box and marble table,        the latter   would 'pay off"     in the nature
of musical    selections     emanating from the music box.
Honorable       Dwight Whitwell,          page    5



                For your       last   question,       we again    quote       from your letter

               ‘e uestionNo. 4. Under Article      4667 of the Civil
         Statutes     will
                         an Injunction    Suit eon the part of the State
         to enjoin  the continued    operation   of these devices    be
         properly  brought  under said Article     of the Statutes?”
               Article   4667, Vernon’s    Annotated              Civil       Statutes   of
Texas,     provides    in part as follows:

                 “The habitual  use, actual,    threatened    or contem-
         plated,    of any premises,  place or building,       or part
         thereof,    for any of the following      uses shall   be en-
         joined    at the suit of either     the state or any citizen
         thereof:
                “1 .    For gaming or keeping            or exhibiting          games
         prohibited      by law.
                II. .   .
               “Any person who may use or be about to use, or
         who may aid or abet another   in the use of any such
         premises  for any purpose mentioned   in this article
         may be made a party defendant   in such suit.    . . .”

              As we construe   this article,    the using of the premises
for the purpose of operating         the machines under discussion      child
be enjoined     and the owner of the devices       could be made a party
defendant.      However, it is our opinion      that under this article
an injunction     would not lie merely to enjoin        the owner of such
devices    from operating    them in the future at any and all places.
In other words, the owner of the premises           could be enjoined     from
using particular     or certain    described   premises    to operate  gaming
devices    and the owner of the machines could be made a party
thereto,     but that under this statute,      the owner of the machines
alone could not be enjoined        from continually     operating   them.

ROK:db:hp                                             Yours    very   truly

APPROVEDJUN 24, 1943                                  ATTORNEYGENERALOF TEXAS

/s/ Grover Sellers
FIRST ASSISTANT                                       By /s/    Fred C. Chandler
ATTORNM GENERAL                                                 Fred C. Chandler
                                                                       Assistant
APPROVEDOpinion              Committee
 By /s/ BWB
    Chairman                                          By /s/    Robert    0.    Koch
                                                                Robert    0.    Koch
