Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 1,2004
The Honorable Kenny Mar-chant Opinion No. GA-0173
Chair, Committee on State Affairs
Texas House of Representatives Re: Whether it is a penal offense for a city that
Post Office Box 29 10 operates a senior citizens’ community center that is
Austin, Texas 78767-29 10 exempt from licensing under the Bingo Enabling
Act to possess gambling paraphernalia and whether
such gambling paraphernalia is subject to state
sales tax (RQ-0 125GA)
Dear Representative Marchant:
On behalf of the City of Carrollton (the “City’), you ask whether it is a penal offense for a
city that operates a senior citizens’ community center that is exempt from licensing under the Bingo
Enabling Act, chapter 2001 of the Texas Occupations Code, to possess gambling paraphernalia and
whether such gambling paraphernalia is subject to state sales tax.’
You explain that the Charitable Bingo Division of the Texas Lottery Commission (the
“Commission”) recently renewed the Carrollton Senior Community Center’s exemption from the
Bingo Enabling Act’s licensing requirements. See Request Letter, supra note 1, at 1. A Commission
rule requires certain groups or organizations that intend to conduct bingo under a Bingo Enabling
Act exemption to apply to the Commission for an exemption. See 16 TEX. ADMIN. CODE 5 402.549
(2003); see also TEX. Oct. CODE ANN. 5 2001.551(b) (V emon 2004) (Bingo Enabling Act
exemptions). An attorney for the City asked the Commission whether the exemption would provide
a defense to prosecution under chapter 47 of the Penal Code, which establishes various offenses
related to gambling, but was unable to get an answer. See Request Letter, supra note 1, at 1.* As
a result, the City has asked for this office’s opinion on two issues:
(1) whether it is a penal offense for the City of Carrollton to possess
gambling paraphernalia unless authorized under specific state laws,
including the Bingo Enabling Act, and,
‘See Letter from Honorable Kenny Marchant, Chair, Committee on State Affairs, Texas House of
Representatives, to Nancy Fuller, Chair, Opinion Committee, Offke of Attorney General (Nov. 3,2003) (on file with
Opinion Committee) [hereinafter Request Letter].
*We note that the Bingo Enabling Act has recently been amended to provide that “[a] person may request from
the commission an advisory opinion regarding compliance with this chapter and the rules ofthe commission.” TEX.OCC.
CODE ANN. 6 2001.059(a) (Vernon 2004).
The Honorable Kenny Marchant - Page 2 (GA-0173)
(2) if the [Commission] exemption . . . amounts to a defense to
prosecution under Chapter 47 of the Penal Code, whether the
gambling paraphernalia used by the City to conduct legal bingo
genres is subject to state sales tax.
Id. We assume that the City of Carrollton operates and funds the Carrollton Senior Community
Center and that your query is limited to equipment used to conduct bingo at the center.
First, you ask about the City’s possessing gambling paraphernalia, which chapter 47 of the
Penal Code defines to include “anybook, instrument, or apparatus by means ofwhich bets have been
or may be recorded or registered; any record, ticket, certificate, bill, slip, token, writing, scratch
sheet, or other means of carrying on bookmaking, wagering pools, lotteries, numbers, policy, or
similar games.” TEX. PEN.CODEANN. ij 47.01(6) (V emon 2003); see also id. 8 47.01(4) (defining
“gambling device”). Section 47.06(c) provides that “[a] person commits an offense if, with the
intent to further gambling, the person knowingly owns, manufactures, transfers commercially, or
possesses gambling paraphernalia.” Id. 0 47.06(c); see also id. 0 47.06(a) (offense of possessing
gambling device). For purposes of the Penal Code, “person” means “an individual, corporation, or
association.” Id. 9 l.O7(a)(38) (V emon Supp. 2004). The term “association” expressly includes a
governmental entity, such as a city. See id. 8 1.07(a)(6) (“‘A ssociation’ means a government or
governmental subdivision or agency, trust, partnership, or two or more persons having a joint or
common economic interest.“). Thus, under this language, a city could be subject to prosecution
under section 47.06 for possessing gambling paraphernalia.
As you note, however, it is a defense to prosecution under chapter 47 of the Penal Code that
“the conduct . . . was authorized under. . . Chapter 2001, Occupations Code,” the Bingo Enabling
Act. Id. 9 47.09(a)(l)(A) (V emon 2003). See Request Letter, supra note 1, at 1; see also Tex. Att’y
Gen. Op. No. JC-0480 (2002) at 1,9 (conduct not expressly authorized by either the Bingo Enabling
Act or the Charitable Raffle Enabling Act would not fall within the defenses to gambling offenses
set forth in section 47.09(a)(l)(A) or (B) of the Penal Code). The Bingo Enabling Act generally
provides that “[a] person conducting, promoting, or administering bingo commits an offense” but
makes certain exceptions to that offense in section 2001.55 l(b)(l)-(4). See TEX. OCC. CODEANN.
8 2001.551(a) (V emon 2004) (defining “bingo”),3 (b) (offense and exceptions). Among those
exceptions, a person does not commit an offense by conducting, promoting, or administering bingo
on behalf of an organization of individuals 60 years of age or over, a
senior citizens’ association, a senior citizens ’community center
program operated orfunded by a governmental entity, the patients in
a hospital or nursing home, residents of a retirement home, or the
patients in a Veteran’s Administration medical center or a military
hospital, solely for the purpose of amusement and recreation of its
members, residents, or patients, when:
31n section 200 1.55 1,“bingo” or “game” 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 on a card conforming to numbers or symbols
selected at random, whether or not a person who participates as a player fknishes something of value for the opportunity
to participate.” Id. 9 2001.55 l(a).
The Honorable Kenny Marchant - Page 3 (GA-0173)
(A) no player or other person furnishes anything of more than
nominal value for the opportunity to participate; and
(B) the prizes awarded or to be awarded are nominal[.]
Id. 0 2001.55 1(b)(3) (emphasis added). A person who conducts, promotes, or administers bingo
under section 2001.55 1(b)(3) engages in conduct that is expressly authorized by chapter 2001, see
id. (providing that it is not an offense to conduct, promote, or administer bingo on behalf of a senior
citizens’ community center program operated or funded by a governmental entity), which would
provide a defense to prosecution under chapter 47 of the Penal Code, see TEX. PEN. CODEANN.
8 47.09(a)(l)(A) (Vernon 2003). ’
Although chapter 2001 does not expressly authorize an exempt organization to possess
gambling paraphernalia, it would not be reasonable to conclude that the legislature intended to
provide exempt organizations with a defense to prosecution for conducting bingo games but not for
possessing the equipment necessary to engage in such authorized conduct. See TEX. GOV’T CODE
ANN. 93 311.021(3) (V emon 1998) (“In enacting a statute, it is presumed that . . . a just and
reasonable result is intended[.]“), .023(l), (5) (“In construing a statute . . . a court may consider
among other matters the . . . object sought to be attained . . . [and the] consequences of a particular
construction[.]“); TEX. PEN. CODEANN. 0 1.05(a) (Vernon 2003) (“The rule that a penal statute is
to be strictly construed does not apply to this code. The provisions of this code shall be construed
according to the fair import of their terms, to promote justice and effect the objectives of the code.“),
(b) (“Unless a different construction is required by the context, Sections 3 11 .Ol 1,3 11 .O12,3 11 .O14,
3 11 .O15, and 3 11.02 1 through 3 11.032 of Chapter 3 11, Government Code (Code Construction Act),
apply to the construction of this code.“). Accordingly, we construe the chapter 47 defense to extend
to the possession of the equipment necessary to engage in conduct authorized by chapter 2001. See
TEX. PEN. CODE ANN. $0 47.06 (Vernon 2003) (gambling paraphernalia possession offense),
.09(a)(l)(A) (“It is a defense to prosecution under this chapter that the conduct . . . was authorized
under. . . Chapter 2001, Occupations Code[ -1”). Thus, while a city could be charged with possessing
gambling paraphernalia under section 47.06 of the Penal Code, the City of Carrollton may assert the
Penal Code section 47.09 defense to prosecution in the unlikely event it is charged with possessing
gambling paraphernalia. Of course, the defense would only apply to items that it possesses to
conduct or administer bingo as authorized by section 2001.55 1(b)(3) of the Occupations Code. In
answer to your specific question, “it is a penal offense for the City of Carrollton to possess gambling
paraphernalia,” as it is for any other person or entity, “unless authorized under specific state laws,
including the Bingo Enabling Act.” Request Letter, supra note 1, at 1.
You also ask whether “gambling paraphernalia used by the City to conduct legal bingo games
is subject to state sales tax.” Id. Tax Code chapter 15 1, subchapter H provides various exemptions
from the sales tax. See TEX. TAX CODEANN. $5 151.051(a) (Vernon 2002) (“A tax is imposed on
each sale of a taxable item in this state.“), .301 (“If a taxable item is exempted from the taxes
imposed by this chapter, the sale, storage, use or other consumption of the item is not subject to the
sales tax imposed by Section 15 1.05 1 of this code or the use tax imposed by Section 15 1.101 of this
code if the item meets the qualifications for exemption as provided in this subchapter; and when an
The Honorable Kenny Mar-chant - Page 4 (GA-0173)
item is exempted from the taxes imposed by this chapter the receipts from its sale are excluded fi-om
the computation of the taxes.“), .302-,355 (Vernon 2002 & Supp. 2004) (exemptions).
Section 15 1.3 105 of the Tax Code provides a sales-tax exemption for bingo equipment:
Bingo equipment, as defined by Section 2001.002,
Occupations Code, is exempted fi-om the taxes imposed by this
chapter if the bingo equipment is:
(1) purchased by an organization licensed to conduct bingo
under Chapter 2001, Occupations Code, that is exempt from the
payment of federal income taxes under Section 501(a), Internal
Revenue. Code of 1986, as amended, by being listed as an exempt
organization under Section 501(c)(3), (4), (8), (lo), or (19), Internal
Revenue Code of 1986, as amended; and
(2) used exclusively to conduct bingo authorized under
Chapter 200 1, Occupations Code.
Id. $ 15 1.3 105 (Vernon Supp. 2004) (emphasis added). By its plain terms, this sales-tax exemption
applies only to equipment purchased “by an organization licensed to conduct bingo under Chapter
2001, Occupations Code.” Id. You inform us that the Carrollton Senior Community Center is
exempt from licensing under the Bingo Enabling Act. See Request Letter, supra note 1, at 1. It
appears that neither the City nor the center is licensed to conduct bingo under the Act. Therefore,
this sales-tax exemption does not apply to their bingo-equipment purchases.
We note, however, that section 15 1.309 provides a general sales-tax exemption for certain
governmental entities, including cities:
A taxable item sold, leased, or rented to, or stored, used, or
consumed by, any of the following governmental entities is exempted
from the taxes imposed by this chapter:
[(l)-(3) the United States and its instrumentalities];
(4) this state;
(5) a county, city, special district, or other political
subdivision of this state; or
(6) a state, or a governmental unit of a state that borders this
state, but only [under certain conditions].
TEX. TAX CODEANN. 5 15 1.309 (Vernon 2002) (emphasis added). Bingo equipment “sold, leased,
or rented to, or stored, used, or consumed by” the City of Carrollton would be subject to this
exemption.
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SUMMARY
If the City of Carrollton conducts bingo under the Bingo
Enabling Act exemption for senior citizens’ community centers
operated or funded by a governmental entity, see TEX. OCC.CODE
ANN. 0 2001.551(b)(3) (V emon 2004), it may assert the Penal
Code section 47.09 defense if it is prosecuted for possessing
gambling paraphernalia that it possesses to conduct or administer
bingo. See TEX. PEN. CODE ANN. $9 47.06 (Vernon 2003)
(gambling paraphernalia possession offense), .09(a)(l)(A)
(defense to prosecution for conduct authorized under Occupations
Code, chapter 2001). Bingo equipment “sold, leased, or rented to,
or stored, used, or consumed by” the City of Carrollton would be
subject to the sales-tax exemption for governmental entities
provided by section 15 1.309 of the Tax Code. See TEX. TAX
CODEANN. 0 15 1.309 (Vernon 2002).
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee