Untitled Texas Attorney General Opinion ( 1950 )

January 27, 1950
Hon. Stewart W. Hellman
Criminal District Attorney
Fort Worth, Texas Opinion No. V-991
Re: The legality of operating the
amusement device called the
Dear Sir: “Hollycrane” in Texas.
Your request for an opinion reads in part as follows:
‘“We are advised that the “HOLLYC,RANE”
consists of a wooden cabinet 48 inches by 32 inches,
which is enclosed on two sides and the top with
crystal-clear glass, which provides perfect vision
without distortion. The cabinet contains a portable
playing field 30 inches long by 20 inches wide, the
floor of which is dressed with colored sea shells,
upon which are laid small metal animals. The play-
ing field is illuminated by flourescent lights, giving
the player a perfect view of the field and all operat-
ing features of the machine, and which, in the opera-
tion of the machine, permits the player to use his own
judgment of depth perception by the operation of two ;
electric controls, one each for forward and cross mo-
tion. The skill with which these electric control
levers are manipulated regulates and controls the
operation of the crane. The levers are provided at
the front of the machine, one lever enables the play-
er to move the crane in a forward motion along the
length of the playing field from one end to the other
or to any desired position on said playing field. The
other lever enables the player to move the crane to
the right across the playing field entirely from one
side to the other or to any desired location on the
playing field.
““Upon reaching the desired location either for-
ward or sideward or both, the crane, automatically
lowers to the playing field, upon which are laid the
Hon. Stewart W. Hellman, page 2 (V-991)
metal animals, and the crane then depending on
the skill and accuracy of the player, picks up one
of the metal animals. The crane then automatically
rises and returns to the starting position . . ~ *”
You subsequently advised us that:
“It is my understanding that there are three types
of the HOLLYCRANE machine. They are all operated
in a similar manner, the difference in them being the
premiums which are given, if the operators of said
machines are skillful enough to receive anything for
their efforts.
‘MACHINE NUMBER ONE. It is my understand&
ing that this machine will deliver to the operator a
premium; which, when so operated, would be a gambling
device and a violation of law.
“MACHINE NUMBER TWO. It is my understand-
ing that on this machine, the operator can also receive
free games from the machine, if he is skillful enough
in the operation of same. This also would be a violation
of law.
“MACHINE NUMBER THREE. It is my contention
that when an operator of this machine, in using his skill,
comes in contact with one of the premiums, and said
premium is lifted by the HOLLYCRANE, and nothing de-
livered and no free games given, that this is not a vio-
lation of law, but a game of skill. This is the machine
on which I would like to have an opinion from the Attor-
ney General’s office, if you think I am correct in my
views of the matter.”
Trade literature submitted with your original request de-
scribes the Hollycrane and its operation as follows:
“Wide expanse of play-field adds to the excitement
of play and emphasizes the skill-factor which is important
in practically all territory ~ ~ ~ Mirror at end of cabinet
creates illusion of greater-than-actual size . D . Although
average operating cycle is only 10 seconds, the excitement,
suspense and skill-thrill is so intense that players receive
complete satisbction and are eager to try again ~ . . -*
You have expressed the opinion that those models of the Hol-
lycrane described by you as “Machine No. One” and “Machine No. Two”
are gaming devices, but wish to know whether the operation of “Machine
.
Hon. Stewart W. Hellman, page 3 (V-991)
No. Three” violates the gaming laws of Texas.
Article 619, V.P.C., provides as follows:
“If any person shall directly, or as agent or
employe for another, or through any agent or agents,
keep or exhibit for the purpose of gaming, any policy
game, any gaming table, bank, wheel or device of any
name or description whatever, or any table, bank,
wheel or device for the purpose of gaming which has
no name, or any slot machine, any pigeon hole table,
any jenny-lind table, or table of any kind whatsoever,
regaidless of the name or whether named or not, he
shall be confined in the penitentiary not less than two
nor more than four years regardless of whether any of
the above mentioned games, tables, banks, wheels, de-
vices or slot machines are licensed by law or not. Any
such table, bank, wheel, machine, or device shall be
considered as used for gaming, if money or anything
of value is bet thereon.”
We agree with your conclusion that the fiirst two types
of the Hollycrane described by you are gaming devices as defined by
our statutes. In the recent case of Hoffman v. State, 219 S.W.Zd 539
(Tex. Civ. App. 1949), it was held:
“Appellant first argues that his Bridgo game
(the ball-throwing feature) is admittedly and in fact
one of skill and such as the statutes against gaming
were never intended to cover; as opposed to pure
games of chance with associated gambling or betting.
We will consider the ball-tossing device as a game
of skill in accordance with stipulations, though the
question of whether it was predominantly of such
character, if open, would appear debatable. However,
the point need not be argued. Our courts have son-
strued Arts. 619, 621 and 625 as drawing no distinction
between games of chance and games of skill, but as
condemning all games upon which money or ‘anything
of value’ is staked or waged on the outcome; taking the
view, in short, that playing a game, whether of skill or
chance, for money or ‘other thing of value’ constitutes
gambling or gaming. Adams v. Antonio, Tex. Civ. App.,
88 S.W.2d 503 (writ refused); Callison v0 State, Tex.
Civ. App., 172 S.W.2d 772. ‘This betting on games is the
evil our law seeks to eradicate.’ Stearnes v. State, 21
Tex. 692, 693. Texas courts further hold that amuse-
ment is a ‘thing of value’ and that free games won on
marble machines at least are within condemnation of
Hon. Stewart W. Hellman, page 4 (V-991)
the statutes. State v. Langford, Tex. Civ. App., 144
S.W.2d 448; Hightower v. State, Tex. Civ. App., 156
S,W.2d 327 (writ refused) . , . .”
We do not believe the present statutes on gaming devices
prohibit that model of the Hollycrane which gives no reward to the
player, and described by you as “Machine No. Three.” However,
actual employment of this model as an adjunct to gaming, as by ‘side-
bets” or by separate rewards by the displayer, for example, would
bring this model within the statutes proscribing gaming. Hightower,
v. State, 156 S.W.Zd 327 (Tex. Civ. App. 1941, error ref.), wherein
the court said:
“As to the other machines . . . it is undisputed ~:::r,:
;
that none had any automatic ‘pay-off’ adjustment; and
that the only result from playing thereof was the smuse-
ment of the player in securing a high score, No testi-
mony whatever discloses an understanding on%hepaTtibf
any store proprietor to pay ‘over the counter’ for high
or particular scores; or thatany player was seen or
permitted to bet on the machines’ operation. . . .
“It would follow, therefore, that 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 gambling devices within the in-
hibition of above statute?; . . . An entirely different situa-
tion would exist if, by mechanical adjustment, the ma-
chines were 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 resulting
scores. The machines would then become gambling
devices per se, placing defendants factually within the
purview of Houghton v. Fox, supra; . . . .”
From the above it follows that the model of the Hollycrane
which gives no reward to the player, while not per se illegal may be-
come so if it is used as an adjunct to gaming.
SUMMARY
Two described models of the mechanically oper-
ated amusement device known as the “Hollycrane,‘ one
of which rewards the player in premiums and the other
in free games, are gaming devices under the provisions
of Art. 619, V.P.C. Hoffman v. State, 219 S.W.2d 539 (Tex.
Civ. App. 1949). A third model, giving no reward to the
Hon. Stewart W. Hellman, page 5 (V-991)
player, while not per se illegal may become so if used
as an adjunct to gaming. Hinhtower v. State, 156 S.W.
2d 327 (Tex. Civ. App. 1941, error ref.).
Yours very truly,
PRICE DANIEL
Attorney General
Willis E. Gresham
APPROVED: Assistants
Charles D. Mathews
Executive Assistant
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