    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN       CORNYN




                                                January 2,2002



Mr. C. Tom Clowe, Jr.                                Opinion No. JC-0449
Chair, Texas Lottery Commission
P.O. Box 16630                                       Re: Whether the Texas Lottery Commission             is
Austin, Texas 7876 l-6630                            authorized to approve or disapprove         secondary
                                                     components or features of an electronic bingo card-
                                                     minding device unrelated to the game of bingo that
                                                     allow a player to play various games, such as video
                                                     poker, during a bingo occasion, and related questions
                                                     (RQ-0383-JC)


Dear Mr. Clowe:

         You ask about the Texas Lottery Commission’s (“Commission”) authority to approve or
disapprove secondary components or features of an electronic bingo card-minding device unrelated
to the game of bingo that allow a player to play various games, such as video poker, during bingo
occasions.* We conclude that the Commission is required to examine the secondary components or
features of an electronic bingo card-minding device and disapprove them if they allow a player to
play a “game of chance” or use a “gambling device” during a bingo occasion. We also conclude that
the described video poker game is a prohibited “game of chance.” Finally, we conclude that the
video poker game, as described to us, is a prohibited gambling device only if it records the
“cancellation or removal of credits” awarded; and the credits awarded provide a benefit to which a
price can be assigned other than an immediate right of replay. The Commission must determine, in
the first instance, whether the video poker game is a gambling device that meets this criterion.

        Your request relates to an electronic bingo card-minding device. A “‘bingo card-minding
device’ . . . [is] an electronic or computerized device that allows a bingo player to store, display[,]
and mark a bingo card face.” Request Letter, supra note 1, at 1; see also 16 TEX. ADMIN. CODE
8 402.541 (2001) (defining “card-minding device”). It essentially allows a player to electronically
track the bingo numbers drawn and to similarly mark his or her cards. See Request Letter, supra
note 1, at 1.

         The Commission by rule requires manufacturers of bingo card-minding devices to submit
identical prototypes of all such devices for the Commission’s approval before they are sold, leased,
or otherwise furnished to any person in the state or used in the conduct of bingo for public play. See



           *See Letter from C. Tom Clowe, Jr., Chair, Texas Lottery Commission, to Honorable John Cornyn,   Texas
Attorney   General (May 17,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. C. Tom Clowe, Jr. - Page 2                   (JC-0449)




Request Letter, supra note 1, at 3; see also 16 TEX. ADMIN. CODE fj 402.555(b)(1)(2) (2001). If the
Commission detects or discovers any problem with the card-minding device that “affects the security
and/or integrity of the bingo game or card-minding device,” it may direct the manufacturer to cease
the sale, lease, or use of the device. See 16 TEX. ADMIN. CODE 9 402.555(b)(5).

         A licensed manufacturer of a bingo card-minding device has submitted for the Comrnission’s
approval a device called the “Diamond Too.” The “Diamond Too” contains software designed to
be installed in a bingo card-minding device that will allow a bingo player, for an additional fee, to
access various software games, including video poker games. See Request Letter, supra note 1, at
2. You describe these video poker games as follows:

                        The video poker games use a video playing screen that
               displays five dealt cards, any of which can be held for a second deal.
               The[y] . . . allow a bet ranging from one credit to the maximum credit
               of five. These credits are referred to as “coins” on the winning hand
               chart at the top of the play screen. The chart displays the winning
               amount of the hand, flush, strait [sic], three of a kind, etc. based on
               how many coins [are] bet. When playing the video poker games, the
               screen shows a starting credit amount of five hundred coins and offers
               two versions of poker, ‘Jacks or Better’ and ‘Deuces Wild’. In
               connection with the video poker games, credits can be accumulated.
               It is not known whether either video poker game allows for the
               adjustment of winnings.

                        The device housing the electronic bingo card-minding device
               and the additional games, including the video poker game, does not
               have a port allowing for the insertion of money or tokens or for
               dispensing tickets, gift certificates, or tokens.

Id.

       You specifically   ask:

               (1) Does the [Commission’s]        statutory responsibility to regulate
                   bingo extend to the allowance or disallowance of the installation
                   of additional software on an electronic card-minding device, such
                   as the installation of a video poker game, when such software is
                   not related to the game of bingo?

               (2) Is the proposed video poker game included as part of the
                   additional software on the electronic card-minding device, a
                   device that is included in the definition of a “gambling device”
                   within the meaning of the Texas Penal Code and/or the [Bingo
                   Enabling Act] and is not otherwise subject to the “amusement
Mr. C. Tom Clowe, Jr. - Page 3                    (JC-0449)




                    device exception”? If so, then what effect does this determination
                    have on the authority of the Charitable Bingo Operations Division
                    to regulate bingo?

                (3) Notwithstanding the provisions of the Texas Penal Code and/or
                    [the Act] regarding gambling devices or video lottery machines,
                    does the proposed video game included as part of the additional
                    software on the electronic bingo card-minding device, constitute
                    another ‘game of chance’ and therefore come within the
                    prohibition found in . . . section 2001.416 [of the Act]?

Id. at 7-8.

         We begin our analysis by briefly reviewing the provisions of the Bingo Enabling Act, TEX.
Oct. CODE ANN. $0 2001 .lOl-.657 (Vernon 2002) (“Act”). The Act closely regulates the bingo
industry. Only persons licensed by the Commission under the Act may conduct bingo games. See
id. $9 2001.101 (authorized organizations), .55 1 (offense). Only a licensed commercial lessor may
lease premises on which bingo is conducted. See id. 5 2001.15 1. And only a licensed manufacturer
may sell or supply for use in this state bingo supplies or equipment designed to be used in playing
bingo, or engage in any intrastate activity involving those items. See id. 5 2001.201. A bingo card-
minding device is “bingo equipment.” See id. 8 2001.002(5)(A)(ii).          Only a licensed authorized
organization or a person authorized to conduct bingo may lease or purchase an electronic or
mechanical card-minding device for use in the conduct of bingo. See id. 8 2001.407. Such a device
may not be used to generate or determine letters, numbers, or other symbols used in playing the
bingo card played with the device’s assistance; as a receptacle for the deposit of tokens or money
to play the bingo card; or as a dispenser for the bingo prize for the bingo card. See id. $2001.409(a),
(b). You do not contend that the bingo card-minding device with the additional video poker software
contravenes these restrictions.

         Section 2001.416(a) of the Act provides that “[a] game of chance other than bingo or a raffle
. . . may not be conducted or allowed during a bingo occasion.” Id. 5 2001.416(a). Subsection
2001.416(d) creates an exception to this broad prohibition by providing that “[tlhis section does not
prohibit the exhibition and play of an amusement machine that is not a gambling device as defined
by Section 47.01, Penal Code.” Id. 8 2001.416(d) (emph asis added). Subsections (a) and (d) read
together prohibit all “games of chance,” except (i) bingo, (ii) raffle, and (iii) “an amusement machine
that is not a gambling device” during a “bingo occasion.” See id. § 2001.416 (a), (d) (emphasis
added); see also HOUSE COMM. REPORT,BILL ANALYSIS, Tex. H.B. 3021, 74th Leg., R.S. (1995)
(adopting substance of subsection (d)) (“Clarifies that an amusement machine that is not a gambling
device is not prohibited from [the] premises.“); FISCALNOTE,Tex. H.B. 3021,74th Leg., R.S. (1995)
(“The bill allows the operation of coin operated amusement machines during bingo.“). Thus, they
prohibit a machine or device that is a gambling device under the Penal Code. A “bingo occasion”
is “all activities incident to the conduct of a series of bingo games by a licensed authorized
organization, including the organization’s licensed times and any preparatory or concluding activities
incident to the conduct of bingo.” TEX. Oct. CODEANN. 8 2001.002(6) (Vernon 2002). It begins
Mr. C. Tom Clowe, Jr. - Page 4                            (JC-0449)




when “the premises are opened to the public.” Id. 8 2001.419(a). In short, the Act prohibits                         all
games of chance (other than bingo and raffle) and gambling devices during a bingo occasion.

         Finally, the Act grants the Cornrnission broad regulatory authority. It provides that the
Commission “shall administer. . . chapter [2001],” and “has broad authority and shall exercise strict
control and close supervision over all bingo conducted in this state so that bingo is fairly conducted
and the proceeds derived from bingo are used for an authorized purpose.” Id. 8 2001.05 1(a), (b).
(The Act further directs that the Commission execute its “authority through a bingo division
established by the commission to administer . . . chapter [2001].” Id. 8 2001.051(c).)           It also
authorizes the Commission to adopt rules to enforce and administer the Act. See id. 8 2001.054.

         With this overview of the Act, we turn to your principal question: whether the Commission’s
statutory authority to regulate bingo extends to the allowance or disallowance of the installation of
additional software on an electronic bingo card-minding device that allows a player to play
additional games, such as video poker, during a bingo occasion. We conclude that it does. As an
administrative agency, the Commission may exercise only the specific powers expressly conferred
upon it by the Act and those powers necessarily implied from the statutory authority granted or the
duties expressly given or imposed. See Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744,764
(Tex. App.-Austin 2000, pet. denied). The Act here grants the Commission broad, express authority
to administer and enforce the provisions of the Act and it expressly prohibits any “game of chance”
or a “gambling device” during a bingo occasion. A bingo card-minding device containing the
additional software is designed to be used during a bingo occasion. In order to implement the Act’s
prohibition, we believe the Cornmission is necessarily required to examine the additional software
on an electronic bingo card-minding device, and disapprove its installation if it allows a player to
play a “game of chance” or use a “gambling device” during a bingo occasion. See 16 TEX. ADMIN.
CODE 5 402.555(b)(5) (2001) (p roviding that if Commission detects or discovers any problem with
card-minding device that “affects the security and/or integrity of the bingo game or card-minding
device,” it may direct manufacturer to cease sale, lease, or use of device).

        You also ask whether the video poker game included as a part of the additional software on
the bingo card-minding device is a prohibited “game of chance” that the Commission must disallow.
We conclude that the video poker game described to us is a “game of chance.”

         While the legislature has used the phrase “game of chance” several times in the Act, it has
not defined the phrase in the Act or elsewhere.2 (Similarly, while Texas courts have used the phrase




           ‘Section 2001.002(4) provides that “‘filing0 means. . . a specific game of chance, commonly known as bingo
or lotto, in which prizes are awarded on the basis of designated numbers or symbols conforming to randomly selected
numbers or symbols.”       TEX. Oct. CODE ANN. $ 2001.001(4) (V ernon 2002) (emphasis added).             Again, section
2001.416(a) states that “[a] game of chance other than bingo or a raffle . . . may not be conducted or allowed during a
bingo occasion[,]” id. 0 2001.416(a), and section 200 1.416(d) provides that the section does not prohibit the exhibition
and play of an amusement machine that is not a gambling device as defined by Section 47.01, Penal Code.” Id.
$2001.4 16(a), (d) ( em ph asis added). And, section 2001.55 l(a) provides that “‘bingo’ or ‘game’ means a specific game
of chance, commonly known as bingo or lotto, in which prizes are awarded.” Id. 5 2001.55 l(a) (emphasis added).
Mr. C. Tom Clowe, Jr. - Page 5                             (JC-0449)




repeatedly, none has defined it.3) When the legislature has not defined a statutory term or phrase,
we give it its ordinary or common meaning. See Monsanto v. Cornerstones Mun. Util. Dist., 865
S.W.2d 937,939 (Tex. 1993); see also TEX. GOV’TCODEANN. 5 3 11.011 (Vernon 1998) (words and
phrases to be construed in context and in accordance with cornmon usage unless they have acquired
technical or particular meaning). Webster’s Dictionary defines “game of chance” as: “a game (as
a dice game) in which chance rather than skill determines the outcome.” WEBSTER’S NINTH NEW
COLLEGIATEDICTIONARY504 (1983). Similarly, Black’s Law Dictionary defines the phrase as “[a]
game whose outcome is determined by luck rather than skill. Cf. GAMBLINGDEVICE.” BLACK’S LAW
DICTIONARY 687 (7th ed. 1999). Accord State v. Gambling Device, 859 S.W.2d 5 19, 523 (Tex.
App.-Houston [ 1st Dist.] 1993, writ denied) (contrivance designed to incorporate element of chance
to influence award is contrivance whose outcome is determined by chance); Poppen v. Walker, 520
N.W.2d 238,245 (S.D. 1994) (and cases cited therein) (game of chance is one in which success or
failure depend less on skill and experience than on purely fortuitous circumstances incidental to
game, manner of playing it, or device or apparatus with which it is played; test is whether chance
is determining element in outcome of game). Thus, the commonly understood meaning of a “game
of chance” is a game whose outcome is determined by chance rather than skill. Nothing in this
definition of the phrase requires the element of “prize.”

         The video poker game’s outcome is determined by chance. You inform us that the video
poker game “has the same element of chance” as traditional poker games: “The outcome of any one
hand is a mixture of skill and chance in that the skillful player will know which cards to keep and
which to discard.” Request Letter, supra note 1, at 7.4 It need not award a thing of value as a “prize”
to constitute a “game of chance,” as that phrase is commonly understood. See WEBSTER’S NINTH
NEW COLLEGIATEDICTIONARY       504 (1983); BLACK’S LAW DICTIONARY687 (7th ed. 1999). CJ: Games
Mpt., Inc. v. Owens, 662 P.2d 260 (Kan. 1983) (video games of “Double-Up” and “Twenty-One,”
variations of poker game known as blackjack, because dominated by chance are games of chance,
and are “gambling devices” when something of value is received as prize).




          ‘In a 193 1 case, the court of criminal appeals noted that, “without approving [the definition] in its entirety”
“game of chance is defmed in 27 Corpus Juri, at page 968 as follows: ‘It is a game determined entirely or in part by
lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by
chance; a game in which hazard entirely predominates.“’ Boatwrightv. State, 38 S.W.2d 87,88 (Tex. Crim. App. 1931).

          4But as one court has noted “the fundamental nature of such [video card] games is chance--a      player’s skill,
no matter how good or bad, does not and cannot control the randomness inherent in the ‘deal’ of the card. Stated
another way, the skill of the player may increase the player’s odds of winning but ultimately the player’s skill cannot
determine the outcome, regardless of the degree of skill involved.” Opinion of the Justices No. 373,200l WL 43 1692
* 12 (Ala. 2001). Courts in other jurisdictions have determined that video poker and similar video card games are games
dominated by chance. See, e.g., Score Family Fun Ctr., Inc. v. County of San Diego, 225 Cal. App.3d 1217 (1990)
(Mini-Boy 7, offering video games of blackjack, poker, hi-lo, double-up, and craps, predominantly      games of chance);
Games Mgmt., Inc. v. Owens, 662 P.2d 260 (Kan. 1983) (small amount of skill required to play video card games of
“Double-Up” and “Twenty-One,”         a variation of poker game known as blackjack, was overshadowed by pure chance;
“Double-Up” and “Twenty-One”         are games of chance); H & Z Vending v. Iowa Dep ‘t of Inspections & Appeals, 593
N.W.2d 168 (Iowa Ct. App. 1999) (video poker game of “fraternal poker” was game of chance); Garono v. State, 524
N.E.2d 496 (Ohio 1988) (video poker game machines        are games of chance).
Mr. C. Tom Clowe, Jr. - Page 6                    (JC-0449)




        Finally, you ask whether the video poker game included as a part of the additional software
on the bingo card-minding device is also a prohibited “gambling device.” Given the factual nature
of the inquiry, we cannot provide a definite answer. However, we provide the legal criterion for
determining whether the particular game is a gambling device.

        The Act does not define “gambling device,” but refers to the definition       of that phrase in
section 47.01 of the Penal Code. Subsection (4) of that statute provides that:

                    (4) Gambling device means any electronic, electromechanical, or
                mechanical contrivance not excluded under Paragraph (B) that for a
                consideration affords the player an opportunity to obtain anything of
                value, the award ofwhich is determined solely orpartially by chance,
                even though accompanied by some skill, whether or not the prize is
                automatically paid by the contrivance. The ten-n:

                         (A) includes, but is not limited to, gambling device versions
                of bingo, keno, blackjack, lottery, roulette, video poker, or similar
                electronic . . . games, or facsimiles thereof, that operate by chance or
               partially so, that as a result of the play or operation of the game
                award credits or free games, and that record the number of free
                games or credits so awarded and the cancellation or removal of the
               free games or credits; and

                         (B) does not include any electronic . . . contrivance
                designed, made, and adapted solely for bona fide amusement
                purposes if the contrivance rewards the player exclusively with
                noncash merchandise prizes, toys, or novelties, or a representation of
                value redeemable for those items, that have a wholesale value
                available from a single play of the game or device of not more than
                10 times the amount charged to play the game or device once or $5,
                whichever is less.

TEX. PEN. CODEANN. 4 47.01(4) (Vernon Supp. 2002) (emphasis          added).

         Two additional definitions are also relevant. First, under section 47.01(9) of the Penal Code,
“thing of value” is “any benefit [exclusive of] an unrecorded and immediate right of replay not
exchangeable for value.” Id. 5 47.01(9) (emphasis added). The term “benefit” under section
1.07(a)(7) of the Penal Code is “anything reasonably regarded as economic gain or advantage,
including benefit to any other person in whose welfare the beneficiary is interested.” Id. $1.07(a)(7)
(Vernon 1994). “Benefit,” Texas courts have said, includes anything to which a price can be
assigned. See Smith v. State, 959 S.W.2d 1, 20-21 (Tex. App.-Waco 1997, pet. ref’d); Allstar
Amusement v. State, 50 S.W.3d 705,708 (Tex. App.-Waco 2001, no pet.).
Mr. C. Tom Clowe, Jr. - Page 7                              (JC-0449)




        Under Texas case law, “amusement” is a thing of value. See Hopman v. State, 219 S.W.2d
539, 541 (Tex. Civ. App.-Dallas 1949, no writ) (and cases cited) (“Texas courts further hold that
amusement is a ‘thing of value’ and that free games won on marble machines at least are within
condemnation   of the statutes.“).    The statutory definition of “thing of value” excluding “an
unrecorded and immediate right of replay” was designed to exclude amusement-type             pinball
machines. See Gambling Device, 859 S.W.2d at 524 (by excepting award of immediate right of
replay from definition “thing of value,” legislature excluded ordinary amusement-type        pinball
machines from prohibition of chapter; clear implication is that such devices incorporating essential
elements of chance and skill would otherwise be prohibited); see also State v. Mendel, 871 S. W.2d
906,909 (Tex. App.-Houston      [ 14th Dist.] 1994, no writ).

         In sum, the essential elements of a “gambling device” under section 47.01 of the Penal Code
are: (1) payment of consideration for the operation of the device; and (2) the award of a “thing of
value” by the device that is “determined by chance.” See TEX. PEN. CODEANN. 0 47.01(4) (Vernon
Supp. 2002); see also Mendel, 871 S.W.2d at 909; State v. Fry, 867 S.W.2d 398, 402 (Tex.
App.-Houston       [ 14th Dist.] 1993, no writ). “Thing of value” includes any benefit other than “an
unrecorded and immediate right of replay not exchangeable for value.” See TEX. PEN. CODEANN.
fj 47.01(9) (V emon Supp. 2002). “Benefit” includes anything to which a price can be assigned. See
id. 8 1.07(a)(7) (Vernon 1994); Smith, 959 S.W.2d at 20-21; Allstar Amusement, 50 S.W.3d at 708.
“Gambling device” expressly includes a “video poker” game device that operates wholly or partially
by chance and awards either credits or free games, the award and cancellation or removal of which
credits or games are recorded. See id. 5 47.01(4)(A) (V emon Supp. 2002). The phrase expressly
excludes an amusement device that awards noncash merchandise prizes, toys, or novelties or
representations redeemable for those items with value of $5 or less. See id. 8 47.01(4)(B); see also
State v. One Super Cherry Master Video 84inerMach.,         55 S.W.3d 51,52 (Tex. App.-Austin 2001,
pet. filed) (section 47.01(4)(B) essential part of definition of “gambling device”).

         Application of the definition “gambling device” depends on the physical characteristics of
the particular device in question. See Mendel, 87 1 S. W.2d at 909; Fry, 867 S. W.2d at 402. Because
this office does not make finding of facts in the opinion process,’ we are limited to the information
provided to us regarding the physical characteristics of the video poker game in applying the
definition of a gambling device. Based on the information provided, we conclude that the video
poker game described to us is a gambling device only if it records the “cancellation or removal of
credits” awarded; and the credits awarded provide a benefit to which a price can be assigned other
than an immediate right to replay. As the agency charged with the application and enforcement of
the provisions of the Act, the Commission must determine, in the first instance, whether the video
poker game is a gambling device.

         Clearly, the described video poker game meets the first essential element of the statutory
definition because access to or operation of the game requires the payment of an additional use or



          ‘See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M-l 87 (1968) at 3 (“[Tlhis office is without authority to make . . . factual
determinations.“).
Mr. C. Tom Clowe, Jr. - Page 8                    (JC-0449)




rental fee. See Request Letter, supra note 1, at 2. (“In addition to the fee paid to use the electronic
bingo card-minding device, for an extra fee, known as ‘supersizing’, additional software can be
activated to provide games to the bingo player.“). However, we have insufficient information to
determine whether it meets the second essential element of the statutory definition-the        award of
a thing of value- by chance. Again, a “gambling device” expressly includes a “video poker” game
device that operates wholly or partially by chance “that as a result of the play or operation of the
game award[s] credits or free games, and that record the number of free games or credits so
awarded and the cancellation or removal of the free games or credits.” See TEX. PEN. CODEANN.
5 47.01(4)(A) (V emon Supp. 2002) (emphasis added). Thus, we read “thing of value” to include
credits or free games, the award and cancellation or removal of which credits or games are recorded.
See id. § 47.01(9) (“Thing of value” includes any benefit other than an “unrecorded and immediate
right of replay not exchangeable for value.“). The video poker game, as described, awards and
records “credits”; the credits are accumulated. See Request Letter, supra note 1, at 2 (screen displays
credits and bets; credits can be accumulated).     The award of the credits is determined at least
partially by chance. See supra discussion at p. 5; Gambling Device, 859 S.W.2d at 523 (“We
interpret the statute to apply to contrivances that incorporate any element of chance, even if the
exercise of skill also influences the outcome. Even a contrivance that is predominantly a game of
skill may be determined by chance.“). And, presumably the loss or reduction of the credits is also
recorded as the game progresses, although you do not tell us whether that is the case. But we do not
know the purpose of the accumulated credits and whether they provide a “benefit” other than an
immediate right to replay. See TEX. PEN. CODEANN. 8 47.01(9) (Vernon Supp. 2002) (definition
of “thing of value” excluding an “immediate right to replay”); Allstar Amusement, 50 S.W.3d at 708
(because 8-liner clearly recorded credits, and tickets dispensed by machine for those credits could
be exchanged for play on another machine that was not necessarily “immediate,” only remaining
question was whether tickets were a “benefit”).

         We do not believe the described video poker game is excluded, as a matter of law, from the
definition of “gambling device” under the express “bona fide amusement” device exception under
section 47.01(4)(B). See TEX. PEN. CODEANN. 9 47.01(4)(A) (Vernon Supp. 2002). It obviously
does not award noncash merchandise items or representations of value redeemable for such
items similar, for example, to machines at amusement parks. See id.; One Super Cherry Master
 Video a-Liner Mach., 55 S.W.3d at 52 (“‘[N] oncash merchandise prizes’ implies its ordinary
meaning-merchandise       prizes as opposed to a prize consisting of currency or coin that the recipient
was free to take from the premises if he wished.“); Debate on Tex. S.B. 15 on the Floor of the
Senate, 74th Leg., R.S. (April 4, 1995) (statements of Senator Whitmire explaining that intent of
language was to allow practice of awarding tickets that allow purchase of “teddy bears” or other gifts
of $5.00 or less at amusement parks, such as AstroWorld and Six Flags Over Texas, and other
“similar practices”) (audio tape available from Senate Staff Services Office).

         Our ultimate conclusion that the Commission is authorized to disapprove as a “game of
chance” components or features of an electronic bingo card-minding device that allow a player
to play the described video poker game during bingo occasions is supported by the Act’s legislative
history.   House Bill 302 authorized the use of bingo card-minding         devices.    See Act of
May 29, 1995,74th Leg., R.S., ch. 1057,§ 2,1995 Tex. Gen. Laws 5222. The following exchange
Mr. C. Tom Clowe, Jr. - Page 9                   (JC-0449)




regarding the use of these devices took place between Representative   Chisum and the bill’s author,
Representative Kuempel:

               Rep. Chisum: Are you aware. . . that these kinda machines that you
               are now authorizing in the statute are the same kinda machines that
               could be modified to do video poker, blackjack, or even keno?

               Rep. Kuempel: Yes. That’s why specifically, on page 4 line 7 of the
               bill [it states that the device may not be used] to generate [or]
               determine random letters, numbers or other symbols used in playing
               bingo card played with the device’s assistance. We are definitely not
               going to . . . have keeno or blackjack or something like that on these
               machines.

               Rep. Chisum: So, if it is your intention that this only be used for
               some kind of machine-played bingo and would it be in the bingo
               parlors?

               Rep. Kuempel:     Yes.

Debate on Tex. H.B. 3021 on the Floor of the House, 74th Leg., R.S. (May 26, 1995) (emphasis
added) (audio tape available from House Video/Audio Services Office). The legislature did
not intend that bingo card-minding devices be used to play video poker or other similar games during
bingo occasions.
Mr. C. Tom Clowe, Jr. - Page       10           (JC-0449)




                                        SUMMARY

                        The Texas Lottery Commission is required to examine the
               secondary components or features of an electronic bingo card-
               minding device unrelated to the game of bingo and disapprove them
               if they allow a player to play a “game of chance” or use a “gambling
               device” during a bingo occasion.         The video poker game, as
               described, is a prohibited “game of chance.”          It is likewise a
               prohibited “gambling device” if it records the “cancellation or
               removal of credits” awarded; and the credits awarded provide a
               benefit to which a price can be assigned other than an immediate right
               to replay. The Commission must determine, in the first instance,
               whether the video poker game is a gambling device.




                                              Attoiney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
