Untitled Texas Attorney General Opinion ( 1943 )

Honorable Dwight Whitwell Opinion NO. O-5068
Criminal District Attorney
Collin County Re: Under the facts submitted,
McKinney, Texas does giving the free music
as a prize constitute both
the marble machine and the
music box a gaming table
Dear Sir: or gaming device?
This will be in reference to your letter requesting
the opinion of this department on the above stated question
and other related matters. With reference to the facts sub-
mitted, we quote as follows from your letter:
“We have several persons who own a varying
quantity of marble tables which they have placed
in numerous places of business over this county.
Along with each marble table is also placed a phono-
graph or music box containing automatic record plag-
ers in which can be dropped a nickel and the custom-
er may select the particular tune he desires to hear.
The marble tables themselves do not pay off any-
thing in money or prizes but most of the marble
tables are connected to the music boxes by an elec-
tric cord so that when a player places a nickel
in the marble machine and plays a game of marbles
and hits a certain required score a record in the
music box automatically begins playing. If the
player so desires he may push a button on the
music box before he begins playing the marble
game and thereby select a particular piece of
music he desires to hear in the event he strikes
the required score on the marble table. There is
no other prize or pay-off on the marble tables.”
Based uponthe foregoing statement of facts, you have
posed several questions. For the first one, we quote from your
letter as follows:
“Question No. 1. Does this combination in
giving the free music as a prize constitute both
the marble table and the music box a gaming table
or gaming device?”
Article 619, Vernon’s Annotated Penal Code, deals ti81
the offense of keeping or exhibiting gaming tables, banks, and
other devices used or exhibited for gambling purposes, and in
part provides:
Honorable Dwight Whitwell, page 2
“Any such table, bank, wheel, machine, or device
shall be considered as used for gambling, if money
or any thing of value is bet thereon.”
The Texas courts have held that “a thing of value”
referred to in the above article, includes, among other things,
free ames won on marble tables, State v. Langford, 144 S.W.
2d) f48, Broaddus v. State, 141 Tex. Cr. R. 512, 150 S.W.
I 26) 247, Hightower v. State, 156 S.W. (2d) 327, writ of error
refused; tokens won on a machine ood for trade-in on merchan-
dSl~, Mills v. Browning, 59 S.W. ? 2d) 291, Moore v. State, 91
2d) 447; and money won on a machine, Houghton v. Fox, 93
s:w: I A selection of music won on a marble table would
likewiEt)c%titute a “thing of value” within the statute and
hence the marble machine would be considered as used for gaml%ng
The followin is a quotation from the case of MSbovI.1
v. State, 118 S.W. (2d f 615, as to what the court considered as
constituting “gaming :equipment”:
. . . . the evidence offered was sufficient to
sustain findings to the effect that the property the
sheriff seized at the location given belonged to the
appellant and was being then and there used by him in
connection with a bookmaking shop with reference to
horse racing; that the blackboards referred to were
likewise being used by him to write the results ,of
the races upon; and that the loud speakers, which were
connected with a radio, were also being used by him
for the purpose of announcing the results of the
horse races to many persons assembled for the purpose
at that place, who had tickets showing that a bet had
been made on such horse races; in other words, the
appellant had been using his place there for the pur-
pose of promoting betting on horse races by means of
pool selling, and In connection therewith and in fur-
therance thereof, he had been so using the seized
property .”
The court took the view that since betting on horse races thrcu$-~
pool selling was gambll,ng. the property used In connection then+
with constituted gam iog equipment.”
Since it is the opinion of this department that the
circumstances surrounding the playing of the marble machine under
discussion is gambling, the phonograph or music box used in
connection therewith, as a part thereof. and in the furtherance
of playing the machine constitutes “gaming equipment” condemn-
able under the statute.
For your next question, we again quote from your letter:
Honorable Dwight Whitwell, page 3
“Question No. 2. Since these machines are dis-
played in public places such as restaurants and
sandwich stands and so forth, where the general ~pub-
lit Is invited, can an officer go into these places
and seize these machines without the necessity of
first securing a search warrant?”
The court in the case of Moore v. State, 91 S.W. (2d)
447, said the following with reference to searching and seizing
gaming equipment at public places:
“The Constitution and statutes do not prohibit
every character of search and seizure without a war-
rant, but prohibit unreasonable searches and seizures.
These machines were operated for gaming purposes in
public places to which the entire public, including
the sheriff and his officers, had access. He had ac-
tually seen parties gambling on at least a part of
the machines involved. There was no unlawful entry to
make the seizures. The court passed on probable cause,
and, In our opinion, under the facts, were authorized
to find that the defendant in this case acted on
probable cause .I’
Also to the same effect are Raker v. State, 131 Tex. Cr. R. 626,
101 S.W. (2d) 816, Judge Looney’s opinion in Hightower v.
State, supra, Lee v. State, 140 Tex. Cr. R. 155, 143 S.W. (2d)
389.
It Is the opinion of this department, under the facts
as submitted, that if the officer had sufficient probable cause
that the equipment was being used for gambling, a seizure of U-e
equipment could be made without first securing a search warrant
For the third question, we quote from your letter:
“Question No. 3. Would the fact that the officer
finds the marble table connected to the music box by
an electric cord be sufficient evidence upon which to
secure a confiscation order or would it be necessary
for the officer to play the marble table and actually
secure a piece of music free, or, of course, to see
somebody else do this?”
The court in the case of Hightower v. State, supra,
had the following to say with reference to the evidence neces-
sary to secure an order of the confiscation of so-called gam-
ing equipment:
11.*. The statute does not expressly classify
marble boards, or like devices, as inherently
Honorable Dwight Whitwell, page 4
offensive; hence the question of illegality must hinge
upon the nature of their actual use. 'A slot machine,
it has been said, is not per se a gambling device,
since it may be used or played upon for innocent pur-
poses; and the courts cannot, therefore, take judicial
notice that every slot machine is a gambling device,
since the use to which it has been put must determLne
its character.' 24 Amer. Jur. B35, supra. 'A gaming
table is not determined by its structure, but of the
purpose for which it is exhibited'; Houghton v. Fox,
Tex. Civ. App. 93 S.W. (2d) 781, 782; and in all an-
notations under An. 619, Vernon's P.C. Vol. 1, p. 566,
where this phase of the statute has been considered,
it is uniformly stated that 'Whether or not the table
was designed for gaming purposes is immaterial . . .
it is the game or character of play on it that deter-
mines its status. ’ It would follow, therefore, that
the 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
gaming devices within the inhibition of the above
statute; for, no matter what the structure of these
particular boards may be, whether games of chance or
of skill, they are not to be classed ipso facto as
gambling devices, so long as not used for gambling
purposes; i.e., where no money or thing of value is
bet thereon. An entirely different situation would
exist if, by mechanical adjustment, the machines w,ere
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 result-
ing scores. The machines would then become gambling
devices per se, placing the defendants factually
within the purview of Houghton v. Fox, suprz; but such
evidence is wholly absent from this record.
In Callison v. State, 146 S.W. (2d) 468, the court
held that in order to condemn property that might be used for
gaming and authorize its destruction, it must be shown that such
property was designed for gaming and was, at the time of seizure,
being used for gaming.
Therefore, it is the opinion of this department that
merely finding the music box connected to the marble machine
would not be sufficient evidence to secure a confiscation order.
That before such an order could be secured there must be some
evidence, whether offered by the peace officer from his observa-
tion or knowledge, or offered by others from their observation
or knowledge, that by a mechanical adjustment between the music
box and marble table, the latter would 'pay off" in the nature
of musical selections emanating from the music box.
Honorable Dwight Whitwell, page 5
For your last question, we again quote from your letter
‘e uestionNo. 4. Under Article 4667 of the Civil
Statutes will
an Injunction Suit eon the part of the State
to enjoin the continued operation of these devices be
properly brought under said Article of the Statutes?”
Article 4667, Vernon’s Annotated Civil Statutes of
Texas, provides in part as follows:
“The habitual use, actual, threatened or contem-
plated, of any premises, place or building, or part
thereof, for any of the following uses shall be en-
joined at the suit of either the state or any citizen
thereof:
“1 . For gaming or keeping or exhibiting games
prohibited by law.
II. . .
“Any person who may use or be about to use, or
who may aid or abet another in the use of any such
premises for any purpose mentioned in this article
may be made a party defendant in such suit. . . .”
As we construe this article, the using of the premises
for the purpose of operating the machines under discussion child
be enjoined and the owner of the devices could be made a party
defendant. However, it is our opinion that under this article
an injunction would not lie merely to enjoin the owner of such
devices from operating them in the future at any and all places.
In other words, the owner of the premises could be enjoined from
using particular or certain described premises to operate gaming
devices and the owner of the machines could be made a party
thereto, but that under this statute, the owner of the machines
alone could not be enjoined from continually operating them.
ROK:db:hp Yours very truly
APPROVEDJUN 24, 1943 ATTORNEYGENERALOF TEXAS
/s/ Grover Sellers
FIRST ASSISTANT By /s/ Fred C. Chandler
ATTORNM GENERAL Fred C. Chandler
Assistant
APPROVEDOpinion Committee
By /s/ BWB
Chairman By /s/ Robert 0. Koch
Robert 0. Koch