Untitled Texas Attorney General Opinion ( 1994 )

QTNfice
of tty IZlttornep Qkneral
&ate of aexae
DAN MORALES August 23, 1994
ATTORNEYGENERAL
Honorable John T. Montford Opinion No. DM-302
Chaif
Finance Committee Re: Whether the legislature may, by
Texas State Senate statute, and in the absence of a
P.O. Box 12068 constitutional amendment, authorize the
Austin, Texas 78711 operation of slot machines within the state
of Texas; or, in the alternative, whether it
Honorable Senfronia Thompson may authorize the state to operate slot
Chair machines and to contract with one or
Committee on Judicial Affairs more entities that will operate the slot
Texas House of Representatives machines on behalf of the state (RQ-642,
P. 0. Box 2910 ID# 23991)
Austin, Texas 78768-2910
Dear Senator Montford and Representative Thompson:
Senator Montford requests our opinion as to whether the legislature may, by
statute and in the absence of a constitutional amendment, authorize the operation of slot
machines within the state of Texas. If the answer to this question is “no,” Representative
Thompson asks whether, under the 1991 amendment to the Texas Constitution, the
legislature may authorize the slate “to operate slot machines and to contract with one or
more entities that will operate the slot machines on behalf of the State.” We do not here
determine whether any particular device which might be labeled a “slot machine” actually
conforms to the statutory definition of “gambling device.” Rather, for purposes of this
opinion, we accept Senator Montford’s description of a “slot machine” as
a machine that runs electronically or mechanically and contains slots
into which the player deposits money in the form of currency, coins,
tokens, or a magnetic card. on the chance of receiving some amount
of money greater than that deposited.
Furthermore, we add the qualification that the machine records the credits won on each
play, and the credits are exchangeable for something of value. See Stare v. Menaid, 871
S.W.Zd 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.).
In order to answer Senator Montford’s question, we must determine whether a
slot machine is a “lottery” within the meaning of article III, section 47 of the Texas
Constitution, which requires the legislature to “pass laws prohibiting lotteries and gift
Honorable John T. Montford - Page 2 @M-302)
Honorable Senfronia Thompson
enterprises.” If slot machines fall into the category of “lotteries,” the legislature may not
authorize their operation without a constitutional amendment.
When the present Texas Constitution was adopted in 1876, it contained the
following provision regarding “lotteries”:
The Legisiature shall pass laws prohibiting the estabtiahment of
lotteries and gift enterprises in this State, as well as the sale of tickets
in lotteries, giB enterprises or other evasions involving the lottery
principle, established or existing in other States.’
Some of the briefs submitted to this office suggest that this provision, because it
distinguished between “lotteries,” “gift enterprises,” and “other evasions involving the
lottery principle,” means that the term “Jottery” should be construed, for constitutional
purposes, very narrowly, and that in 1876, “lottery” could not have been intended to
proscribe slot machines since that device was not invented until 1895. At most, these
briefs argue, operation of a slot machine is an “evasion based on the lottety principle.”
When, in 1980, the “other evasions” language was deleted from article III, section 47,
these briefs contend that the colLFtihltioMI proscription against slot machines was litIed.s
As early as 1899, however, the Court of Criminal Appeals held that operation of a
“slot machine,” as described therein,3 constituted a “lottety.” prendergasr v. &are, 57
SW. 850, 851 (Tex. Crim. App. 1899). Then, in 1936, the Texas Supreme Court
considered whether a “bank night” held weekly at a local thea& was a “lottety” under
‘This generalpmbibitionnow appearsas s§ion (a) of articleIII, section 47. It rcsdr:
(a) lltc Lcgislatmcshall pass lawspmhtbitinglcttcriesanfl gift enterprtses
in this State other than those autherircd by Sobsectioos(b), (d), and (e) of this
section.
ZTbc briefers acknowledge, of came, that cpxatloo of slot machines is still prohibited by
statute,viz., as a “gamblingdevice”onder chapter47 of the Fkoal code, hot wntend that tk h&slatox
may simpIyamendthat slatWeto ox&de slot machincafrom its ambit.
fThc Prendergcrrl court considered a very earlyversion of the slot machine. It con&ted of five
coloredslots-red,black, greeo, white, and yellow-intowhich the playercould inserta nickel. If the player
%on,“theredandblackslotspaidootadime; thegreenslotaqoarter, thewhiteslottitlycents; and
theplIowsIotadolhr. Ofcomse,intheosualciraunstance, the playerdid not “win” anything. The
COWI decimal that, even tboogh the mechioc itsclf‘kutdd be indictableas a gaming device,”there is “oo
nrason why the keeper [of the machine, i.e., the owner of the premises io which the machine was
&played] was not also indictablefor establishinga Muy.” Pcndcgasr v. .%k. 57 SW. at 851.
4Griffithqw~amotionpichurtheatrr:nthecitydWinlr. Onoocnightperwuk,
denombmtcd“bank nigh&”a drawing was hold in the theaterfor which the prize was $35. A pamm
becane “eligible” for the drawing by signing a registerMl open at the ticket wiodow of the theater.
Griffithcontmdedthatanypcrsonwaspermittedtosignthemgistersimplybyaskingto&so,andlhu4
Honorable John T. Montford - Page 3 @M-302)
Honorable Senfronia Thompson
the wnstitution. Ciiy of Wink v. Gr#rh Amu.wnenr Co., 100 S.W.Zd 695 (Tex. 1936).
In the wurae of its opinion, the court declared that article IJJ, section 47, proscribed three
activities: 1) lotteries, 2) gift enterprises, and 3) other evasions involving the lottety
princip1e.s Furthermore, the court clearly articulated the three elements necessary to
constitute a lottery: 1) the offering of a prize, 2) by chance, and 3) the giving of
consideration for an opportunity to win the prize. Of the three, the wutt declared that
“‘chance’ is the one which wnstitutes the very basis of a lottery, and without which it
would not be a lottery.” C@ of Wink 100 S.W.2d at 701. Although the court in City of
Wink did not rule that “bank night” was a lottery, it did hold that “the Court of Civil
Appeals had substantial grounds for the wncluaion to the effect that the ‘Bank Night’ plan
of defendant in error was a lottery.” Id., at 699-700. Furthermore, even if “not a lottery
within the meaning of the Penal Code,” it was nevertheless “at the vety leaat a gift
enterprise involving the lottery principle,” and, as such, was proscribed by the
Constitution. Id. at 700.
For our purposes, however, it is sufficient to note that the Supreme Court had by
1936 laid out the detinitive elements which wnstitute a “Iott* in the state of Texas.
Texas courts have wnsistently found that the term “lottery” includes a wide range of
activities involving the distribution of something of value by chance in ex+ange for
valuable wnsideration. This construction of the tetm “lottery” predates our current
wnstitution. The constitution of 1845 and every subsequent constitution have included a
prohibition against lotteries. The wnstitutions of 1845, 1861, 1866, and 1869 stated that
“No lottery shall be authorized by this State; and the buying and selling of lottery tickets
within this State is prohibited.” TEX. CONST.art. XII, $36 (1869); TFX CONST.art VII, 6
17 (1866); TEX CONST. art. VII, $ 17 (1861); TEX. CONST. art. VII, 5 17 (1845). The
wnstitutional convention of 1875 expanded this language in response to activities
authorized by the Legislature of 1873 to state that “The Legislature shall pass laws
prohibiting the establishment of lotteries and gifi enterprises in this State, as well as the
sale of tickets in lotteries, gift enterprises, or other evasions involving the lottery principle,
no coaridcration was required for the privilege of participatingin the drawing. The court was not
pemaded by this argument: “[The] admission charge is inseparablefrom the privileges enomemted
[se&g the movie sod participatingin the drawing],which were materiallydiEerentfromthe privilegesof
those who mnained ootidc of the theaterholding the s+called ‘free registrationmnnbers.” City of Wtnk,
100 S.W.Zd at 699. Forthermore,it made no ditTemnceYhat a claimant’sright to the prize was
evideneedhy a registmtionbook insteadof a tick& as is usual in lotteries. The registrationnmnbers
mprcaentcd %hances’at the prize just as effectivelyas wootd tickets to the drawing.” Id. (Otiginal
wapbasis).
sAt least one of the briefs constmes the constitotionallanguage to prohibit 1) lotteries,2) gift
enterprises, and 3) “rhe sale of tickets in lotteries, giJl enterprises or other evasions im&ing the lot&y
@zip/e. ” Undexthis reading,the “otherevasions” language is applicableonly when ticketsare sold.
As ayWacticallyatlmcth es this wostrwtion might k, it is barredby the Siqreme Coo& oneqoivocal
bguage in City of Wink.
Honorable John T. Montford - Page 4 @M-302)
Honorable Senfronia Thompson
established or existing in other States.” But even prior to the 1876 wnstitution, the Texas
Supreme Court had found that
it makes not the slightest di&rence whether it be styled a ‘Gift
Enterprise,’ ‘Book Sale,’ ‘Land Distribution,’ or ‘Art Association,
each and all are lotteries when the element of chance is wtmected
with, or enters into the distribution of its prizes. . . . Courts will
inquire nor into the name, but the game, to ‘determine whether it is a
prohibited game.’
RandZe v. Stare, 42 Tar. 580 (Tex. 1875) (Original emphasis). Later cases interpreted the
prohibition to include bingo, raflles, sales schemes, and other giveaways, whether or not
they had the three elements of “prize, chance and consideration,” used by the court later to
charactaize a lottery. See, e.g., Civ of Wink, 100 S.W.Zd 695.
In 1971, the legislature amended article 654 of the Penal Code, the &mitral statute
then implementing article IQ section 47, to permit certain “charitable organizations to
conduct loneties for their benefit on property owned by the wnducting agency” and
allowing the “sale or drawing of a prize at a fair held in this State for the be&it of a
church, religious society, veteran’s organization,” or similar entity. Acts 1971,62d Leg.,
ch. 922. g 1, at 2823. As enacted, the amendment was intended to permit activities held
under the aegis of a particular class of charitable or quasi-charitable institution, such as
churches and veterans’ organizations, that were otherwise proscribed by the Penal Code.
In Tussey v. Sbte, 494 S.W.Zd 866, 869 (Tex. Ctim. App. 1973), the court held that the
language of article III, section 47, prohibited the legislature from granting this exemption.
The court found that “any effort by the Legislature to authorize, license or legalize
lotteries is unwnstitutional in light of the wnstitutional provision in question. . Further,
the Legislature is likewise prohibited from indirectly doing so by way of exemption from
miminal prosecution.” Tussey v. Srare 494 S.W.2d at 869; see also City of Wink, 100
S.W.Zd 695. It is clear that the term “lottery” will be broadly wnstrued by the wurts,
and that any game newly sanctioned by the legislature must be care&lly scrutinized to
determine whether it is a “lonery.” If it is, it cannot be lawlitlly operated without a
wnstitutional amendment.
Subsequent to the wutt’s decision in Tussey, the legislature proposed, and the
electorate approved, a series of amendments. to article III, section 47. A 1980
amendment-the present subsections (b) and (c) of article III, section 47-excepted “bingo
games conducted by a church, synagogue, religious society, volunteer fire department,
nonprofit veterans organization, fraternal organization, or nonprofit organization
supporting medical research or treatment programs.” S.J.R. 18, Acts 1979, 66th Leg., at
3221. Subsection (d) was added in 1989 to permit “charitable rdles” held by those
entities which were already authorized to conduct bingo games. H.J.R. 32, 6 1, Acts
1989, 71st Leg., at 6427. The most recent amendment, subsection (e), permits the
Honorable John T. Montford - Page 5 @M-302)
Honorable Senfronia Thompson
legislature to “authorize the State to operate lotteries and [to] authorize the State to enter
into a contract with one or more legal entities that will operate lotteries on behalf of the
State.” H.J.R 8, Acts 1991,72dLeg., 1st C.S., at A-2.
“Lottery” is defined in section 47.01(6) ofthe Penal Code as
any scheme or procedure whereby one or more prizes are diatriiuted
by chance among persons who have paid or promised wnsideration
for a chance to win anything of value, whether such scheme or
procedure is called a pool, lottery, de, g& gift enterprise, sale,
policy game, or some other name.
Atton General Opiion JM-1267 (1990) wnsidered whether a variety of “casino
games,” including “slot machines,” wuld be validated by the legislature without the
necessity of amending article III, section 47. The opiion “aasume[d] that two of the
~cessary three elements of a lottery would be present during the holding of the gaming
activities” described in the opinion-“i.e., the payment of consideration and the awarding
of a prixe”-and that the wnstitutionality of a particular game would be determined
according to whether, and to what extent, it wntained the element of ckmce.
Opiion JM-1267, relying on judicial decisions and Attorney General Opiion C-
619 (1966), declared that the characterixation of a particular game as a ‘Totte$ is
dependent upon “whether the dominating elernenr of the entire scheme was that of
chance, or that of skill, judgment, or ingenuity.” Quoting from Sherwootf & Roberts-
Yatim~, Inc. v. Cw G. Leach, 409 P.2d 160 (Wash. 1%5), Opinion C-619 stated that
“[i]f chance predominates over skill or judgment and permeates the whole plan, a lottery is
established.” See Adams v. Antonio, 88 S.W.2d 503 (Tex. Civ. App.-Waco 1935, writ
refd).
As this office stated in JM-1267, section 47 of article III does not “proscribe all
forms of gambling.” Pari-mutuel betting on horse or dog races, for example, although it
may wntainaome element of chance, also depends, at least in part, on the bettor’s skill.
See Pams v. Texas Breeders & Racing Ass’n, 80 S.W.2d 1020 vex. Civ. App.-
Galveston 1935, writ dism’d); see also, Ginsberg v. Centennial Turf Club, Inc., 251 P.2d
926 (Colo. 1952); People ex rel. Luwrence v. Fallon, 46 N.E. 296 (N.Y. 1897). Opinion
JM-1267 did not resolve whether any of the games at issue there “involve[d] the
dominating element of skill, as opposed to chance,” since resolution of that question was
deemed to require findings of fact not appropriate to the opinion process. If, however, it
can be determined that the slot machine pay out is based entirely on chance rather than
skill, we can say that the operation of that device constitutes a “lottery” us a mrrer of
law. See Srare v. Fty, 867 S.W.Zd 398 (Tex. App.-Houston [14th Dist.] 1993, writ.
ref.); Srcriev. Me&Z, 871 S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.)..
Honorable John T. Montford - Page 6 @M-302)
Honorable Senfronia Thompson
Your request letter expresses your “understanding” that
[wlhether the player wins or not .depends entirely on chance and is
not a&cted by any skill, judgment, or knowledge of the player.
In our opinion, this is a fair charactetization of the device commonly referred to as a “slot
machine.” In a very recent opinion, the Attom General of Kentucky held it to be
“immediately apparent” that slot machines, as well as such games as roulette and craps,
are purely games of chance:
No one can know what the next pull on the handle, spin of the wheel,
or throw of the dice will produce. It is impossible under these games
as we know them for any player, no matter how killfhl, to destroy
the element of chance. They are lotteries, and in the case of slot
machines, have routinely been held so.
Attorney General ofKentucky, opinion No. 93-58 (1993).
Furthermore, the odds of “win&g” are the same for every play. No matter how
many games a player has played and lost, his odds of winning on the next pull of the
handle remain unchanged. It is clear that operation of a “slot machine*’which iimctions in
the matmer described herein, is, as a matter of law, a “lottery” for purposes of section 47
of article III of the Texas Constitution, and accordingly, may not be authorized by the
legislature in the absence of a wnstitutional amendment.6
Representative Thompson asks whether, if the legislature is prohibited from
directly authorizing private individuals and companies to operate slot machines within the
state, it may authorize the state itself to do so and to contract with one or more entities
that will operate the machines on behalf of the state. Representative Thompson’s inquiry
is prompted by the 1991 amendment to article III, section 47-the present subsection
(e)-which authorized the state lottery:
(e) The Legislature by general law may authorize the State to
operate lotteries and may authorize the State to enter into a wntract
with one or more legal entities that will operate lotteries on behalf of
the State.
%ome of the briefs also contend that the legislaturemay simply redetine “lottery”to exempt
from its porview the operationof slot machiaes. The brie&s rely on Pams v. Texm Breeders & Racing
Ash, 80 S.W.Zd I020 (TX. Civ. App.-Galveston1935, writ distn’d)to supporttheir position. In that
care, the court determioedthat the legislaturewas coastitotionallyauthorizedto permitbelting on home
raea. As WChave indicated,however,suprcr,pari-motoelbetting on home or dog races is not entimly a
game nf chance. TIE legislatareis not empowzredto statutorilyremovefrom the dehitkm of %mery”a
game which inarguablyconformsto the constitutionalmeaningof”lottery.”
Honorable John T. Montford - Page 7 @M-302)
Honorable Senfronia Thompson
Some have argued that the State LotteryCommission may authorize its lottery
operator to append “slot machines” to its repertoire of games, even in the absence of
Snther statutory intetvention. Indeed, it has even been suggested that some of the games
currently being conducted are in fact “slot machines” in all but name.’ As we will
demonstrate, such hypertechnical arguments cannot survive serious scrutiny.
In our view, the circumstances surrounding the adoption of subsection (e) make it
abundantly clear that the voters who approved proposition 11 on the general election
ballot of November 5, 1991, did not intend to legalize the operation of alot machines,
whether by a private individual or company, by the state, or by a private individual or
wmpany on behalf of the atate.
The joint resolution which placed the lottery amendment on the ballot, H.J.R. 8,
Acta 1991.72 Leg., 1st C.S., at A-2. used the language which now appears as subsection
(e) of article III, section 47, i.e., “[t]he legislature by general law may authorize the State
to operate lotteries. . .” (Emphasis added).* However, the joint resolution read as
follows:
SECTION 2. This proposed wnstitutional amendment shall be
submitted to the voters at an election to be held on November 5,
1991. The ballot shall be printed to provide for voting for or against
the proposition: ‘The wnstitutional amendment authorizing a stnfe
lottery. ’
Zu! (emphasis added). We believe it is self-evident that voters presumed from the ballot
language tha! they were voting for or against the wmmon perception of a “state lottery,”
as denoted by the clear language of the ballot proposition, rather than a broad spectrum of
games which embody the “lottery principle,” as articulated by Cify of Wink, Tussey, and
numerous other judicial decisions. This view is amply supported by extrinsic evidence
from contemporary newspaper accounts.
Fist, every newspaper article and editorial to which we have been directed refers
to “a state lottery,” “a lottery,” or “a state-nm lottery.” See, e.g.. Austin American-
Srccresmun,November 1, 1991, November 3, 1991, November 6, 1991. In addition, the
articles make frequent reference to other governmental bodies which have previously
‘The State Lottery Act defines “lottery”as ‘lhc prccedurcsoperatedby the state under this
chapterUuough which prizes are awardedM distributedby chance among pewms who have paid, or
mcmditiondly agreed to pay, for a chance or other opporhmityto receive a prize.” God Code $
466.002(3).
sTaps of the House debateon the secondand third r&dings of H.J.R 8 mntain 110ref-
whateverto slot machines.
Honorable John T. Montford - Page 8 @M-302)
Honorable Senfronia Thompson
adopted “lotteries,” e.g., Washington D.C., and New York State, neither of which permit
government-operated slot machines. LklhsMxning News, November 1,199l. Revenue
estimates mentioned in newspaper accounts are based on the experience of other states
which have conventional lotteries involving the purchase of lottery tickets and drawings
for winning numbers. Id
Some accounts also refer to the proposed state lottery as a %umbers game.”
Hauston Chrtmicle, November 4, 199 1; Dallas Movning News, November 3, 1991. The
term “numbers game” has been authoritatiwly de8crlbed as United States alang for “an
illegal form of gambling in which bets are taken on the occtmnce of numbers in a lottery
or in the ilnancial whtmns of a newspaper.” Oxford English Dictionary, 2d ed., 1989, v.
10, at 590. The OELI reference notes the use of the term as early as 1897 and as recently
as 1975. We have found no evidence that the term “numbers game” has ever been used to
refer to a “slot machine.” Furthermore, some wntemporary newspaper accounts make the
point that the adoption of the lottery amendment will permit more than one form of
“game,” begimhg with “scratch-off lottery tickets,” and progressing to %e big-money,
wmputerdriven lotto games. , .” DailasMoming News, Nove-mber5, 1991; see aLso,
Austin Americun-Sraresman,November 6, 1991. We believe it is significant that mxre of
the articles cited make any reference to “slot machinea.”
Them are well-established principles of wnstitutional construction that apply in
answering Representative Thompson’s question. It must be determined whether the
wnstitutional language is “plain and definite” and thus not subject to Snther
interpretation. It is clear, as stated above, that the language voted upon by the electorate,
that is, “The wnstitutional amendment authorizing a s?&e lorrery,”is plain and definite.
The wnstitutional amendment as passed by the voters does not include slot machines.
Some have suggested, however, that the term “lotteries” as wntained in subsection (e)
should be interpreted as broadly as the wurts have interpreted the same term in subsection
(a). Assuming for the sake of argument that further interpretation is necessary, then we
may apply principles of constitutional construction established by our courts in our
consideration of the term, the first and most important of which is to give intent to the
voters who adopted it. Based on the extrinsic evidence cited above, we do not believe the
intent of the voters in approving the proposition, “The constitutional amendment
authorizing a state lorre~,” (H.J.R. 8, supra, emphasis added) was to authorize slot
machines.
The limdamental rule for the government of wutts in the
interpretation or construction of a Constitution is to give effect to the
intent of the people who adopted it. The meaning of a Constitution
is &ted when it is adopted, and it is not different at any subsequent
time when a court haa occasion to pass upon it. Where its terms are
plain and de&rite, that which the words declare is the meaning of the
instrument. In such cases there is no room for construction; the
Honorable John T. Montford - Page 9 @M-302)
Honorable Senfronia Thompson
words of the instrument lie before the court already molded to their
use, and its province extends no further than the enforcement of the
htnguage as written.
Cm v. Robinson, 150 S.W. 1149,llSl (Tex. 1912) (citations omitted).
In Son Antonio Independenr School Dist. v. State, 173 S.W. 525 (Tex. Civ.
App.-San Antonio 1915), the court declared:
[A] state Constitution should not receive a technical construction like
a statute, but that rule of inkrpretation should be followed which
carries out the apparent intention of the people who enacted it.
To construe the term “lotteries” in subsection (e) to include slot machines, would
require applying a technical construction to the word “lotteries” derived from the case law
which was not before the voters in 1991. Nor does the language placed before the voters
suggest, on its face, such a construction. “mhose who are called upon tp construe the
[c]onstitution are not authorized to thwart the will of the people by reading into the
[c]onstituGon language not contained therein.” Cramer v. Shqpard, 167 S.W.2d 147,
154 (Tex. 1945). “It does not follow, either logically or grammatically, that, because a
word is found in one sense in one connection in a [clonstitution, therefore, the same sense
is to be adapted in every other connection in which it occurs. Story on Constitution,
$454. Koy v. Schneider, 221 S.W. 880. 914 (Tex. 1950). Far less should the
construction of a word approved by voters separated in time by more than a century be
construed without reference to the context in which it was used and the intention it
expressed.
Rather, we should construe the language of the exception in light of our
contempory situation, by limiting the meaning of the term “lottery” as approved by the
voters in 1991 to its plain meaning. To do otherwise,~is to allow the exception to swallow
the rule. We decline to give the language of subsection (e) so unreasonable a construction
when a more sensible one suggests itself, especially when the more sensible interpretation
gives effect to the proposition actually presented to the voters. If the proposition passed
by the legislature and presented to the voters had been intended and understood to
authorize state-operated casinos, it would have been a simple matter for the language to
rekct that intention.y
vberc wr-retwo proposals IO amend the wIKIinltion to allow casino gaming before the
legishue in 1993. Both House Joint Resolution4 and Howe Bill 105 clearly articulateamstitutiond
pmposds to allow charitycasino gaming. Neitherbill uses the term“lottery”in its generic sense applied
bytbecascLawto~rrssthe~ofallowinggamingactiviticsnotcurrcatlyincludcdinthe
exceptionsto articleIII, section 47. HouseBill 105, in kt, includesthe termlotteryin a list of activities
oxksting of pari-mumel wagering, bingo, charitable rattles, and a sports pool, all of which are
spec&zlly excluded from the definitionof casino gaming. The languageproposedto be put beforethe
Honorable John T. Montford - Page 10 @M-302)
Honorable Senfronia Thompson
However, again for the purpose of argument, another principle of constitutional
construction that may be applied to the construction of the word “lotteries” in subsection
(e) is the rule of ejus&tt generis, which result in the same above mentioned conclusion.
where general words follow an enumeration of persons or things
by words of a particular and speci6c meaning, such general words
are not to be construed in their widest extent, but are to be held BS
applying only to persons or things of thesame kind or class as those
specifically mentioned.
San Antonib LSD. v. Stute, 173 S.W. at 527. Simply put, the term “lotteries” is the third
of three specific exceptions to the general prohibition against “lotteries and giiI
enterprises.” Therefore, the term “lotteries” in subsection (e) may not be given its widest
meaning but must be construed as belonging to the same “class” or category aa charitable
biio and charitable rat&.. Considered as the third in a series of narrowly circumscribed
activities, the term “state-operated lotteries” would have to be understood to be a specific
activity, and not to mean the entire class of activities to which bingo and raflles also
belOt@. To read the amendment otherwise would lead to an absurd result.
“[C]onstitutional and statutory provisions will nor be so continted or interpreted as to
lead to absurd conclusions . if any other conclusion or intetpre-tation can reasonably be
indulged in.” Cramer v. Sheppard, 167 S.W.2d 147, 155 (Tex. 1943).
The term “slot machine,” with its associated images of Las Vegas-style casinos,
evokes intense emotion in many individuals who look upon a “state lottery” as a harmless,
even benigu, method of raising state revenue, one which is qualitatively different from the
concept of “slot machine.” No evidence has been presetned that any portion of the
electorate believed that, in approving the amendment for a “state lottery,” it was thereby
sanctioning slot machines. And as indicated, mpru, a great deal of evidence suggests that
the voters who adopted the lottery amendment inmnded thereby to authorize only the
traditional form of “state lottery.” We cont5htde, therefore, that subsection (e) of article
III, section 47, does not empower the legislature to permit the state itself to operate slot
machines, nor does it authorize the legislature to permit the state to contract with one or
more entities that will operate the machines on the state’s behalf
Representative Thompson also asks whether the legislature may permh private
individuals or entities to operate slot machines “on a riverboat or dockside casino” merely
wters was “TIE wwtihniod amendmentauthorizingcastno gamingby charttableorgattizations.”Tex.
H.J.R 4,73d Leg. (1993). Clearlyit would be absurdto imputeto eitherthe legislatureor the votersthe
intentionto include casino gaming in the phrase“a statelot&y” as used in the cousthtional amethwnt
panpositionthat pass& in 1991 when, with so little conhsion and dilliculty, it could have been prt before
the votetx in plain and direct language, as House Joint Resohttion4 would bavc, bad it passed the
kgiskture.
Honorable John T. Montford - Page 11 @M-302)
Honorable Senfronia Thompson
by amending the definition of “bet” in section 47.01(l) of the Penal Code. As we have
noted, the legislature may not, in light of the constitutional prohibition against “lotteries,”
validate slot machines simply by redefining the term “‘lottery” to exclude slot machines
from its purview. In our opinion, this principle applies equally to the definition of “bet.”
Article III, section 47, directs the legislature to “paas laws prohibiting the establishment of
lottelies.” Clearly, this wnstitutional provision is not self-enact& and had the
legislature never enacted any implementing legislation, suit would not tie to compel
enactment. However, where there is a history of penal statutes implementing the
constitutional prohibition, repeal of one of those prohibitions is not a neutral act, and, in
our opinion, such repeal would contravene the wnstitutional proscription of subsection (a)
of section 47 of article III. We conclude, therefore, that the legislature may not legalize
the operation of slot machines by private entities merely by amending the definition of
“bet” in section 47.01(l) of the Penal Code.
SUMMARY
A “slot machine,” as that term is wmmoniy understood, is a
device which awards cash or other prizes solely on the basis of
chance, and is not a&cted by any skill, judgment, or knowledge of a
particular player. As such it wnstitutes an unlawIid lottery in
contravention of article III, section 47 of the Texas Constitution.
Operation of “slot machines” may not be authorized by the
legislature in the absence of a wnstitutional amendment.
Furthermore, subsection (e) of article III, section 47, does not
authorize the legislature either to pennit operation of slot machines
by the state, or to permit the state to contract with one or more
en#es to operate slot machines on behay of the state. The
legislature may not legalize the operation of slot machines by private
entities merely by amending the definition of ‘bet” in section
47.01(l) of the Penal Code.
DAN MORALES
Anomey General of Texas
Honorable John T. Montford - Page 12 @M-302)
Honorable Senftonia Thompson
JORGE VEGA
Fkst As&ant Attorney General
DREW T. DURHAM
Deputy Attome-y General for Criminal Justice
RENEAHICKS
State Solicitor
JAVIER AGUILAR
Special fktsistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General