Untitled Texas Attorney General Opinion ( 1939 )

GERALD C. MANN
Au- 11. TEXAS
,x--xx
*-BZNFI nF4N-L
May 16, 1939
Hon. Sam Bain Opinion No. O-792
Cpunty Attorney
Leon County Re: Pool halls.
Centerville, Texas
Dear Sir:
This Department is in rec’eipt of your letter of May 9,
1939. wherein jou request our opinion as to whether or not the pro-
posed enterprise, set out in your letter, would be a pool hall and would
be prohibited by the terms of Article 653 of the Penal Code of Texas.
.We quotefrom. your letter as follows:
*We have a situation as follows ‘in this city:
“The owner of a building has the same and is ‘not
being used for any other purpose. He wishes to place two
pool tables and a domino table in this building and form a
club of ,members who will pay dues of approximately $1.00
each per month; A large part of the dues wiIl;necessaiily
go toa’person to take care of the tables andjanitor’ser~
vice.:,~
“There will be nothing else in same and nothing
for sale. Members will pay by the month and not by the
game.
“Would this be prohibited by the terms of Art. 653
of the Penal Code ? w
Article 653 of the Penal Code of Texas reads as follows:
“Operating pool hall. Whoever shall operate or main-
tain a pool ball, as that term is.defined by the laws of this
State, shall be fined not less than twenty-five nor more than
one hundred dollars or be confined in jail not lessthan one
‘month nor more than one year. Each day of such violation
shall be a separate offense.”
Article 4668, Revised Civil Statutes of Texas reads as .*
follows:
“No personacting for himself ,or’others shall main-
tain or operate a pool ball within this State. The term ‘pool
Hon. Sam Bain, May 16. 1939, fige 2 (O-792)
hall,’ as used herein, includes any room, hall, building
or part thereof, tent or enclosure of any kind similar to
those named, or any enclosed open space; in which are
exhiiited for hire, revenue, fees or gain of any kind, or
for.advertising purposes of any kind, any pool or billiard
table or stand or structure of any kind or character on
which may be played pool or billiards, or any game simi-
lar to pool or billiards played with balls, cues or pins or
any similar device. Any such table, stand or structure of
any kind used or exhibited in connection with any place
where goods, wares or merchandise or other things of
value are sold or given away or wher’e or upon which any
money or thing of value is paid or exchanged shall be re-
garded as a place where is exhibited the same for hire,
revenue or gain. The habitual, actual, or contemplated
use of any premises, place, room. building or part tbere-
of or tent, or any kind or character of enclosure similar
to those named., or any uninclosed open space for the pur-
pose of exhibiting any table, stand or structure of any kind
described in this article may be enjoined at the suit of
either the Sta$e or any citinen thereof. The Attorney Gen-
.eral of this State, or any district er county attorney, or
any citizen of any county in wh&ch any pool hall is main-
tained, operated or contemplated may, either in term time
or vacation, apply tothe district judge of the district in
which is located the place where such pool hall is m&n-
tamed. operated or contemplated, or to.any district judge
in Travis County. for an injunction to prohibit the mafn-
tenance and operation of any such pool hall. Such judge
upon presentation of a petition for suc~h injunction shall
issue a temporary injunction or restraining order and. if
‘upon~final hearing thereof the fact be shown.tbat the de-
,fendant is guilty of keeping. maintaining, or operating a
pool hall, or of contempiating such act, the court before
which the,case is tried shall grant a permanent injunction
against such parity as prayed for in the petition. Any per-
son operating or contemplating the operation of any pool
hall in violation of any provision of this article, ,or anyone
raiding or abetting such person may be made a party defend-
‘ant in such suit:?
On February 22. 1919. this Department held in an opinion
written by Hon. John C. Wall, Assistant Attorney General of Texas, to
Hon. Barton H, Royson. that a canteen of a company of United States Ma-
,rine Corps may not operate pool tablesand charge soldiers a small fee
therefor. even though the fee goes back into the canteen fund. We quote
from said opinion as follows:
:‘The fees paid~ by the soldiers for the use of the
pool tables mentioned in your letter would constitute
‘
Han Sam Bain. May 16, 1939, Page 3 (O-792)
‘fees or gains of any kind’ as those terms are used in
the act. They are things of value and ‘go to the can-
teen fund,,which fund is used for the purchase of sup-
plies or amusements.’ ,.
“You will readily see that to make a.different
holding you would permit a person,or ~association of
persons to rent a building or hall, purchase ~billiard
and pool tables and operate the same for hire, provid--
ed only that the fees charged for the use of such pool
or billiard tables were used for the payment of the rent
of such building,or hall, the purchases price of the.tab.les.,
the up-keep of. the tables and the care,and supervision: ,. :
of the.building or :hall, and this would defeat:the evident!.
purpose and .intention of the act. ‘”
On March 3 1,‘1920. this Department held in.a confer’ence
opinion, written by E. F. Smith, Assistant Attorney .General;~add,res~sed
to A. T. Dribble, which held that a s~o-called club ~which charges a mem-
bership fee or annual or monthly dues, and its principal busines~s is to
afford an opportunity to its members to play Bool hand billiards, was a
public pool hall within the meaning of Section 1,. of.Gbapter 14, Acts of
the 36th Legislature, and therefore, unlawful: We quote from said opin-
ion as follows:
“I have your.~letter .of March 29th. addressed to the
:Attorney General, wherein you request an opinion of this
Department with ,reference to clubs maintaining and oper -
~atfng pool and billiard tables.
.,
“In reply, you are respectfuDy advised that it is
a violation of the law for anyone to maintain and operate
pool and billiard tables for .hire;that is. to charge a fee
`` for the use of the facilities .afforded.for, playing the game
of pool or billiards, or tommaintain and operate Poole and
billiard tables in connection with any place of .busiuess
where ,goods. wares or merchandise or’other~ things of
value are sold ore given away;. or to maintain and operate
pool and billiard tables for.advertising purposes.
‘A bona fide’social~or~ ,busine,ss club may main-
tain and ope’rate pool,and:‘billiard tables,for the use of
its members..provided that .no fee is charged for playing
the ~game and the tables are not operated in connection
with. the sale or the .giving ~away of anything of value, or
for advertising purposes.
?By bona fide club, as above used, we mean a so-
cial or business organization which maintains and operates
pool and billiard tablesmerely as. an incident to its organi-
zation and not as the principal purpose ofthe organization.
’ .
Hon. Sam Bain, May 16. 1939, Page 4 (O-792)
It would be unlawful .for a, club,,to maintain and operate
pool and billiard tables, which was organieed.for the pur-
pose or whose principal purpose in organizing ;would Abe
to afford its members an opportunity to play pool and bil-
liards and which charged a fee for membership or that
charged monthly or annual dues. Such an organization
would be conducting a pool hall for hire just as much so
as if a fee was charged for the privilege of playing each
game.
‘In determining whether a club is a~ ‘bona fide,’
club or merely an attempt to evade the law prohibiting
puol halls, a good test is: Would the club be organized
and maintained if the game of pool and billiards were
omitted from the amusement offered the members 7 Jf
-the pool and billiard tables are merely incidental to the
.main purpose of the,club, their removal would not ser-
iously affect the purposes for which the club was organized.
On’the-other hand, if the purpose of the club is, merely to
~afford an opportun‘ity for its members. to play pool .and bil-
.liards. the removal of the pool and billiard tables from the
clubroom woulddiscard the purpose for which the club was
organized.
.*By applying this test, we are of the opin%on’that
the prosecuting officers of the state will have no diffi-
‘culty in determining for themselves or ~of convincing the
,courts and juries of the -state as to whether’ or not a club
is maintaining pool and billiard, tables in violati:on of Chap-
ter 14. Acts of the Regular Sess~ion of the 36th Legislature,
known as the ‘Pool.Hall Law.‘”
In the case of McCombs et al vs. State, 48 SW (2nd) 665,
the state sought an injunction against h&Combs et al to enjoin them from
operating a pool hall under Artic~le 4668, supra. The defendants answered
that they were employees and managers of tbe Tyler .Recreational Club,
duly organized, maintained and operated as a recreational c,lub for the ex-
clusive use ,ofthe -membns ~of x&id cfuband not to serve the general pub-
lic. The evidencedisclosed thatthe alleged club``~ocured an outfit con-
sisting of sixpooltables, ‘one snuoker ‘table;-Darobuwling alleys, a loung-
ing parlo,r, readingroom. .desks, chairs:-and ~etc.’ Only members of the
club could use the pool and ,snooker tables for which they paid membership
fees. The witness, McCombs, testifying in his own behalf swore that no
fee was paid directly~for the use of the.pool tables. There was no evidence
offered to show that anything was sold on the premises., The appellate court
used the following language:
“We think enough-of the testimony to authorize a find-
ing that the association in question was a.sham and a subter-
-fuge to evade the prohibitions ,in said Article 4668.1~
.
_
Hon. Sam Bain, May 16, 1939. Page 5 (O-792)
The case of Vaiden et al vs. State, 52 SW (2nd) 3i8. ex-
pressly approves the holding in the McCombs case above. The court in
the Vaiden case uses the following language:
“It is appropriate to add, that it is our opinion,
aside from the reasoning in the Countee case (44 S.W.
2nd 994) that the facts in tbis case bring it squarely
within the prohibition of the statute, where it appears
from the record that appellant ‘acting’ both for ‘him-
self’ and ‘others’, ‘maintained’ (and) operates a ‘pool
hall’, that is a ‘room* . . . in which are exhibited for
hire, revenue, fees or gains of any kind . . . any pool
or billiard table.”
Article 4668, supra, which defines pool halls, is a very
broad and comprehensive statute. The Legislature in writing this statute
undoubtedly took into consideration that ingenious human beings would
doubtless attempt to evade this statute by sham, evasion and subterfuge,
and in order to prevent this evascon, the Legislature therefore, set up
the all encompassive provisions in this statute for the purpose of accom-
plishing the purposes desired and to prevent and cure the “pool hall evils.”
You are therefore, respectfully advised that it is the opin-
ion of this Department that the owner of the building mentioned in your let-
ter who proposed to place two pool tables and a domino table therein, forms
a club of members who would pay dues of approximately $1.00 each per
mohth and not by the game, a large part of the money going to a person to
take care of the tables and janitor service. with nothing else in the build-
ing and nothing for sale, would be operating and maintaining a pool hall as
defined by Article 4668, RevisedCivil Statutes of Texas. and would be in
violation of Article 653, Penal Code of Texas.
Trusting that this answers your inquiry. we are
Very truly yours
ATTORNEYGENEULOF TEXAS
By /s/ Wm. J. Fanning
Wm. J. Fanning
Assistant
W JF:AW/cm Approved
Opinion Committee
APPROVED: B-y /s/ GRL
/s/ Gerald C. Mann Cbalrman
ATTORNEYGENERALOF TEXAS