Untitled Texas Attorney General Opinion ( 2007 )

GREG A B B O T T
April 19, 2007
The Honorable Jane Nelson Opinion No. GA-0541
Chair, Committee on Health
and Human Services Re: Whether the Legislature may authorize electronic
Texas State Senate pull-tab bingo by statute without amending the Texas
Post Office Box 12068 Constitution (RQ-0547-GA)
Austin, Texas 787 11-2068
Dear Senator Nelson:
You request an opinion about the constitutionality of proposed legislation that would legalize
the use of "electronic pull-tab bingo" by nonprofit organizations that are authorized by law to
conduct charitable bingo.' Your question relates specifically to Senate Floor Amendment 24 to
House Bill 3 of the Seventy-ninth Regular Legislative Session (the "Floor Amendment"). See
Request Letter, supra note 1, at 1; see also Tex. H.B. 3,79th Leg., R.S. (2005), S.J. OF TEX.,79th
Leg., R.S. 1807-1 3 (2005) (Senate Floor Amendment No. 24).2 Although House Bill 3 was not
adopted and the Floor Amendment did not become law, you are concerned that similar legislation
may be considered in the future. See Request Letter, supra note 1, at 3. You ask whether electronic
pull-tab bingo as described by the Floor Amendment would be constitutional under Texas
Constitution article 111, section 47(b), which authorizes the Legislature to adopt laws authorizing and
regulating bingo games conducted by various charitable entities. See id.at 1-2.
I. Legal Background
Article 111, section 47(a) of the Texas Constitution provides that "[tlhe Legislature shall pass
laws prohibiting lotteries and gift enterprises in this State," subject to specific exceptions. TEX.
CONST.art. 111, 5 47(a). A lottery is composed of three elements: (1) a prize or prizes; (2) the award
or distribution of the prize or prizes by chance; and (3) the payment either directly or indirectly by
the participants of a consideration for the right or privilege of participating. See Brice v. State, 242
S.W.2d 433,434 (Tex. Crim. App. 1951); see also State v. Socony Mobil Oil Co., 386 S.W.2d 169,
'See Letter kom Honorable JaneNelson, Chair, Committee onHealth and Human Services, Texas State Senate,
to Honorable Greg Abbott, Attorney General of Texas, at 1 (Oct. 24,2006) (on file with the Opinion Committee, also
available at http:/lwww.oag.state.tx.us)[hereinafter Request Letter].
The Honorable Jane Nelson - Page 2 (GA-0541)
172 (Tex. Civ. App.-San Antonio 1964, writ ref d n.r.e.). This definition has been incorporated
by the Penal Code, which provides that a "lottery" is
any scheme or procedure whereby one or more prizes are distributed
by chance among persons who have paid or promised consideration
for a chance to win anything of value, whether such scheme or
procedure is called a pool, lottery, raffle, gift, gift enterprise, sale,
policy game, or some other name.
TEX.PENALCODEANN.5 47.01(7) (Vernon 2003).
Applying legislation that implemented the constitutional prohibition against lotteries, a 1976
judicial decision, State v. Amvets Post No. 80, held that a bingo game operated by a veterans
organization was illegal. See State v. Amvets Post No. 80, 541 S.W.2d 481, 482 (Tex. Civ.
App.-Dallas 1976, no writ). The participants purchased cards showing numbered spaces, numbers
were selected at random and called out, and cash prizes were awarded to the first person to cover
numbers in a designated pattern. Based on these facts, the court found the game to be a "scheme or
procedure whereby one or more prizes are distributed by chance among persons who have paid or
promised consideration for a chance to win anything of value." Id. at 482 (quoting and interpreting
definition of "lottery" in Penal Code, formerly section 47.0 1(6), renumbered as section 47.0 1(7)).3
The court held that the bingo game came squarely within the statutory definition of "lottery." See
id. The bingo game was a lottery even though part of the revenue was contributed to charity and no
one realized any gain from it aside from personal winnings. See id. at 483.
In 1979, shortly after the Amvets opinion, the Legislature proposed an amendment to article
111, section 47 (the "bingo amendment") allowing the Legislature to authorize and regulate bingo
games subject to specific constitutional requirements, and the voters adopted it in 1980. See Tex.
S.J. Res. 18, 66th Leg., R.S., 1979 Tex. Gen. Laws 3221 (proposed constitutional amendment);
Texas Constitution, Amendments Adopted in 1979 and 1980,1981 Tex. Gen. Laws 4227 (adoption
of amendment). The bingo amendment adopted subsections 47(b) and (c), which provide in part:
(b) The Legislature by law may authorize and regulate 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. . . .
(c) The law enacted by the Legislature authorizing bingo
games must include [a requirement that organizations conducting
3SeeAct of May 24, 1973,63d Leg., R.S., ch. 399, 5 1, 1973 Tex. Gen. Laws 883,965 (adopting Penal Code
section 47.01(6)), amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, 5 1.01, 1993 Tex. Gen. Laws 3586,
3690-91 (renumbering Penal Code section 47.01(6) as section 47.01(7)).
The Honorable Jane Nelson - Page 3 (GA-0541)
bingo make reports to the comptroller about amount and use of
proceeds collected from bingo games].
TEX.CONST.art. 111, 5 47(b)-(c). Bingo games authorized by a law adopted pursuant to article 111,
section 47(b) are excepted from the prohibition against lotteries in section 47(a). See id. $ 47(a).
In 1981, the Legislature adopted the Bingo Enabling Act (the "Act") pursuant to the
authorization in the bingo amendment. See Act of Aug. 11, 1981,67th Leg., 1st C.S., ch. 11, 1981
Tex. Gen. Laws 85. The Act is now found at Occupations Code chapter 2001 and is administered
by the Texas Lottery Commission. See TEX.OCC.CODEANN. $5 2001.001, .051, .054 (Vernon
2004). It provides for licensing certain charitable and fraternal organizations to conduct bingo
games. See id. 5 2001.101. The Act also governs fiscal matters such as permissible expenses,
accounting for bingo proceeds, charitable distributions, and taxes. See id.$5 2001.45 1-.459 (bingo
accounts and use of proceeds), $5 2001 .501-.5 15 (taxes and prize fees).
11. Proposed Legislation
The Floor Amendment would have amended the Act to authorize "electronic pull-tab bingo,"
a game it defined as "an electronic version of pull-tab bingo that is played on a card-minding device
or electronic monitoring terminal using electronic pull-tab bingo tickets." Tex. H.B. 3, 79th Leg.,
R.S. (2005); S.J. of TEX.,79th Leg., R.S. 1807 (2005) (proposing adoption of Occupations Code
section 2001.002(9-b)). A "card minding device" as defined by commission rule is:
[alny mechanical, electronic, electromechanical or
computerized device, and including related hardware and software,
that is interfaced with or connected to equipment used to conduct a
game of bingo and which allows a player to store, display, and mark
a bingo card . . . . A card-minding device shall not be a video lottery
machine . . . .
16 TEX. ADMTN. CODE 5 402.100(5) (2006) (Tex. Lottery Comm'n, Definitions); see also id.
5 402.302(a)(2)(A) (Tex. Lottery Cornm'n, Card-Minding Systems) (defining "card-minding device"
as a component of a card-minding system).
Pull-tab tickets are at present defined by the Act as "tickets with perforated break-open tabs,
made of paper or paper products, the face of which is covered or otherwise hidden from view to
conceal numbers, letters, or symbols, some of which have been designated in advance as prize
winners." TEX.OCC.CODEANN.$ 2001.002(24) (Vernon 2004) (defining "pull-tab bingo"). An
"[e]lectronic pull-tab bingo ticketnasdefined by the Floor Amendment would be "an electronic ticket
used in electronic pull-tab bingo that is issued from a finite deal of tickets in which some of the
tickets have been designated in advance as winning ticket^."^ Tex. H.B. 3,79th Leg., R.S. (2005);
4While the Texas courts have not addressed any kind of pull-tab game, a federal court has described electronic
pull-tab games as follows:
(continued.. .)
The Honorable Jane Nelson - Page 4 (GA-054 1)
S.J. of TEX., 79th Leg., R.S. 1807 (2005) (proposing adoption of Occupations Code section
2001.002(9-c)). The Floor Amendment would also have permitted the use of a computer program
or electronic equipment to create, shuffle, store, and configure electronic pull-tab bingo tickets, to
distribute these to the screens where the game is played, and to account for electronic credits
purchased, played, or won. See Tex. H.B. 3, 79th Leg., R.S. (2005); S.J. of TEX.,79th Leg., R.S.
1807-09 (2005) (proposing adoption of Occupations Code sections 2001.002(26-a) and 2001.4091
to define and authorize use of a "site controller"). A "player account card," dispensed by a cashier
or terminal, could be used to enable or track the play of such electronic games, track electronic
credits purchased, played, or won, and redeem such credits through a cashier or a terminal. See
S.J. of TEX., 79th Leg., R.S. 1807-09 (2005) (proposing adoption of Occupations Code sections
2001.002(20-a) (defining "[pllayer account card") and 2001.002(20-b) (cashier or terminal)).
111. Legal Analysis
With this background in mind, we consider whether Texas Constitution article 111, section
47(b) authorizes the Legislature to provide for "electronic pull-tab bingo" as set out in the Floor
Amendment. The constitutional provision refers to "bingo games" but does not define this term.
See TEX.CONST.art. 111,s 47(b)-(c). In interpreting aconstitutional provision, the courts begin with
the text of the constitution, but if there is doubt as to the meaning of the literal text, they will
consider the intent of the people who adopted the provision. See Wentworth v. Meyer, 839 S.W.2d
766, 767 (Tex. 1992); Aerospace Optimist Club v. Tex. Alcoholic Beverage Comm'n, 886 S.W.2d
556, 558 (Tex. App.-Austin 1994, no writ); Tex. Att'y Gen. Op. No. GA-0103 (2003) at 5.
Moreover, "[wlhen determining the purpose of a [constitutional] provision, we will consider the evil
to be remedied and the good to be accomplished by that provision." Aerospace Optimist Club, 886
S.W.2d at 559-60 (quoting Brown v. Meyer, 787 S.W.2d 42,45 (Tex. 1990)).
We first consider the purpose of the bingo amendment. The court in Aerospace Optimist
Club, considering whether article 111, section 47(b) barred the state from taxing bingo proceeds,
stated that the "evil to be remedied" by the constitutional amendment legalizing bingo "was selective
enforcement of laws prohibiting gambling and lotteries." Id. at 560. See HOUSESTUDYGROUP,
SPECIAL LEGISLATIVE REPORT,CONSTITUTIONAL AMENDMENT ANALY SIS (Apr. 30,1980) at 2 1 (law
against bingo is selectively enforced to permit bingo games held by religious and non-profit
organizations); TEXAS LEGISLATIVE COUNCIL,ANALYSESOF PROPOSEDCONSTITUTIONAL
AMENDMENTS, FORELECTION NOVEMBER 4, 1980, at 9-1 0 (law enforcement authorities in some
communities do not enforce the prohibition against bingo games). The '"good to be accomplished,'
or the overall purpose of the amendment, was thus the legalization of bingo operations to create
uniformity in law enforcement and to prevent otherwise law-abiding citizens from committing
There is now a computerized version ofpull-tabs. The computer randomly
selects a card for the gambler, pulls the tab at the gambler's direction, and displays
the result on the screen. The computer version . . . has a fixed number of winning
cards in each deal.
Cabazon Band of Mission Indians v. Nat'l Indian Gaming Comm 'n, 14 F.3d 633, 635 (D.C. Cir. 1994).
The Honorable Jane Nelson - Page 5 (GA-0541)
criminal acts by participating in bingo games." Aerospace Optimist Club, 886 S.W.2d at 560. The
purpose of the bingo amendment was to legalize and regulate the kind of bingo game conducted by
a veterans organization in Amvets. See Amvets, 541 S.W.2d at 482-83.
To ascertain the intent of the people who adopted the constitutional provision, we may look
to other sources for the meaning of "bingo" as used in the bingo amendment. See Aerospace
Optimist Club, 886 S.W.2d at 560 (citing Wentworth, 839 S.W.2d. at 767). Legislative construction
and contemporaneous exposition of a constitutional term can be a valuable aid in determining the
meaning and intention of a term used in the constitution. See id. (citing Am. Indem. Co. v. City of
Austin, 246 S.W. 1019, 1023 (Tex. 1922)); see also Hill County v. Sheppard, 178 S.W.2d 261,263
(Tex. 1944) (legislative definition of a term adopted near in time to a constitutional provision that
includes the same term will be given great weight in determining meaning of constitutional term).
The Bingo Enabling Act was adopted in 1981, soon after the voters' ratification of the bingo
amendment, and it thus provides a contemporaneous legislative understanding of the meaning of
"bingo games" in article 111, section 47(b). The 1981 Act defined "[blingo" as "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." Act of Aug.
11, 1981, 67th Leg., 1st C.S., ch. 11, 5 2, 1981 Tex. Gen. Laws 85, 85; see also id. 5 39, at 100
(similar definition of "bingo" in a section on unlawful bingo). The term "card" in the definition
indicates that the Legislature had in mind traditional bingo played on cards when it implemented the
bingo amendment. Although a 1995 enactment deleted "card" from the statutory definition of bingo,
the same bill declared that "[nlothing in this Act shall be construed as authorizing any game using
a video lottery machine or machines," describing such a machine as an electronic video game
machine, that upon the insertion of cash enables the player to play a game from which he may
receive free games or credits that can be redeemed for cash. See Act of May 29, 1995,74th Leg.,
R.S., ch. 1057, $5 1, 10, 1995 Tex. Gen. Laws 5222, 5225. The deletion of the word "card" from
the definition of "bingo" does not mean that the Legislature thought that bingo as authorized by
article 111, section 47(b) could be played on an electronic machine or device.
In addition, the legislative history of article 111, section 47(b) supports the view that this
provision relates to the Amvets type of bingo game. A 1980 report by the House Study Group on the
proposed bingo amendment describes bingo as involving social interaction. "Bingo is a social
function. It brings people together who want to be together. Its social nature is one of the ways it
differs from games like roulette or slot machines." HOUSESTUDYGROUP,SPECIAL LEGISLATIVE
REPORT,CONSTITUTIONAL AMENDMENT ANALYSIS (Apr. 30,1980) at 22; see TEXASLEGISLATIVE
C o m c n , ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS, FORELECTION NOVEMBER 4,
1980, at 10 (stating that bingo games provide an opportunity for entertainment, social gathering, and
relaxation for a significant part of a community, in particular, elderly persons). This aspect of bingo
indicates that when the bingo amendment was adopted, the game of bingo was understood to be the
bingo game described in Amvets, and not a game played electronically. The social interaction present
in traditional bingo is diminished, if not eliminated, in a game played by an individual on a computer
monitor. The Supreme Court of Wyoming, in an exhaustive opinion determining that electronic
bingo was not "bingo" within a 1971 statute, noted that "[blingo-type games contemplate a group
activity, often social." Fraternal Order of Eagles Sheridan Aerie No. 186, Inc. v. State ex rel.
Forwood, 126 P.3d 847,859-60 (Wyo. 2006).
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IV. Conclusion
For these reasons, we believe that a Texas court would find that "bingo" within article 111,
section 47(b) does not include "electronic pull-tab bingo" as described by Senate Floor Amendment
No. 24 to House Bill 3 of the Seventy-ninth Regular Legislative Session. The electronic pull-tab
bingo game would not be excepted by section 47(b) from the prohibition against lotteries in section
47(a) and accordingly would be unconstitutional under article 111, section 47(a).
The Honorable Jane Nelson - Page 7 (GA-054 1)
S U M M A R Y
Texas Constitution article 111, section 47(b) authorizes the
Legislature to enact legislation permitting charitable entities to
conduct bingo games for charitable purposes. The constitutional
authorization for charitable bingo does not include "electronic pull-
tab bingo," which an unenacted bill of the Seventy-ninth Regular
Legislative Session would have authorized. The proposed legislation
would be unconstitutional under article 111, section 47(a).
~ t t o r n ~ n e rofa Texas
l
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee