Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 17,2008
The Honorable Jane Nelson Opinion No. GA-0591
Chair, Committee on Health and Human Services
Texas State Senate Re: Whether the Texas Lottery Commission
Post Office Box 12068 may adopt a rule authorizing video or digital
Austin, Texas 78711-2068 display of the outcome of instant bingo
games (RQ-0597-GA)
Dear Senator Nelson:
You inquire about language that the Texas Lottery Commission (the "Commission") included
in an amendment to its rule on pull-tab bingo adopted on June 25, 2007. 1 See 32 Tex. Reg. 4391,
4393-94 (2007) (to be codified at 16 TEX. ADMIN. CODE § 402.300(a)(19), (e)(10), (h)(10)) (Pull-
Tab Bingo Games). The language at issue relates to video confirmation of the outcome of pull-tab
bingo games. See Request Letter, supra note 1, at 1.
Article III, section 47(a) ofthe Texas Constitution provides that "[t]he Legislature shall pass
laws prohibiting lotteries and gift enterprises in this State," subject to specific exceptions. TEX.
CaNST. art. III, § 47(a). A lottery is composed ofthree 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). Texas Constitution article III, section 47(b), the "bingo
amendment," adopted in 1980,2 provides that 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." TEX. CaNST. art. III, § 47(b). Before the bingo amendment was
added to section 47, bingo played for a prize was an illegal lottery within article III, section 47 and
statutes implementing that provision. See State v. Amvets Post No. 80, 541 S.W.2d 481, 482 (Tex.
Civ. App.-Dallas 1976, no writ). Now, bingo games authorized by the Legislature pursuant to the
1See Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate,
to Honorable Greg Abbott, Attorney General of Texas, at 1 (June 27, 2007) (on file with the Opinion Committee, also
available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2See Tex. SJ. Res. 18, 66th Leg., R.S., 1979 [Vol. 2] Tex. Gen. Laws 3221 (proposing Texas Constitution
article III, section 47(b)); Texas Constitution, Amendments Adopted in 1979 and 1980, 1981, 67th Leg., R.S., 1981 [Vol.
2] Tex. Gen. Laws 4227 (adoption of section 47(b)).
The Honorable Jane Nelson - Page 2 (GA-0591)
bingo amendment are excepted from the article III, section 47(a) prohibition against lotteries, gift
enterprises, and games of chance in general. See TEX. CONST. art. III, § 47(a); Smith v. State, 127
S.W.2d 297, 298 (Tex. Crim. App. 1939) (defining lottery). A game that is not in fact "bingo"
within article III, section 47(b) will not be excepted by that provision from section 47(a). See Tex.
Att'y Gen. Op.No. GA-0541 (2007) at 6 ("electronic pull-tab bingo," is not within the article III,
section 47(b) authorization for charitable bingo).
Pursuant to the bingo amendment, the Texas Legislature adopted the Bingo Enabling Act (the
"Act"), which governs the conduct of charitable bingo. See TEX. Occ. CODE ANN. § 2001.001
(Vernon 2004) (short title). The Act defines "pull-tab bingo" as follows:
"Pull-tab bingo" means a form of bingo played using tickets with
perforated break-open tabs, made ofpaper 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. The term includes games commonly
known as "instant bingo" and "break-open bingo."
Id. § 2001.002(24). The Commission administers the Act, and pursuant to its rule-making authority
it has adopted rules that further define pull-tab bingo. See id. §§ 2001.051 (Commission shall
administer chapter 2001), .054 (general rule-making authority); 16 TEX. ADMIN. CODE §§ 402.100
(2007) (Definitions), .300 (Pull-Tab Bingo Games), .301(h)(10) (Bingo Card/Paper).
Your inquiry relates to recent Commission amendments to its rule on pull-tab bingo that
would allow a "graphic and dynamic representation" of the outcome of pull-tab bingo games.
Request Letter, supra note 1, at 1; see 32 Tex. Reg. 4388,4391 (to be codified at 16 TEX. ADMIN.
CODE § 402.300(a)(19)) (Pull-Tab Bingo Games). You are concerned that these changes in the rule
will result in the kind ofelectronic pull-tab bingo that Attorney General Opinion GA-0541 concluded
not to be within the constitutional authorization for bingo. See Request Letter, supra note 1, at 1;
see 16 TEX. ADMIN. CODE § 402.300 (2007) (Pull-Tab Bingo Games), Tex. Att'y Gen. Op. No.
GA-0541 (2007) at 6. Attorney General Opinion GA-0541 addressed Senate Floor Amendment No.
24 to House Bill 3, legislation proposed but not enacted during the Seventy-ninth Regular Legislative
Session, and concluded that the kind of electronic game it authorized was not "bingo" within the
bingo amendment. See Tex. H.B. 3, 79th Leg., R.S. (2005);3 S.J. of Tex., 79th Leg., R.S. 1807-13
(2005) (text of Senate Floor Amendment No. 24).4 We will summarize the Senate floor amendment
upon which you base your question.
Senate Floor Amendment No. 24 would have authorized numerous electronic innovations
to bingo, including an electronic version of pull-tab bingo that could be played on a computer
terminal with touch screen capacity. See S.J. ofTex., 79th Leg., R.S. 1807-13 (2005) (Senate Floor
3Available at http://www.legis.state.tx.us (last visited Jan. 7, 2008).
4Available at http://tlo2.tlc.state.tx.us/sjml/horne.htm (last visited Jan. 7, 2008).
The Honorable Jane Nelson - Page 3 (GA-0591)
Amendment No. 24).5 Computer hardware or software known as a site controller would store and
distribute electronic pull-tab bingo tickets for display on electronic monitoring terminals or card-
minding devices. 6 See ide at 1808-09. The site controller could create, shuffle, store, and configure
, electronic pull-tab bingo tickets, distribute such tickets to terminals or card-minding devices, account
for electronic credits purchased, played, or won by playing such bingo games, play electronic bingo
games, and perform other functions. See ide at 1809. A bingo player could use a plastic, magnetic
stripe, paper, or smart card? to enable or track the play of bingo games, to record electronic credits
purchased, played, or won and to redeem credits purchased, played or won through a cashier or
redemption system. See ide at 1807-10. The player could also use a card-minding device or an
electronic monitoring terminal to purchase, play, and learn the outcome of electronic bingo games.
See ide The card-minding device could be used "to display graphics and animation that correspond
to or represent, in an entertaining manner, the outcome of an approved electronic pull-tab bingo
ticket or game," while an electronic monitoring terminal could create graphics and animation "to
correspond to, display, or represent, in an entertaining manner, the outcome of an approved
electronic pull-tab bingo ticket or electronic bingo cards." Id. 1809-10 (proposing amendments to
sections 2001.409(a)(5) and 2001.4092(b) of the Occupations Code).
Senate Floor Amendment No. 24 would have allowed pull-tab bingo games to be
computerized in their entirety, from the choice of winning numbers to a player's redemption of his
winnings. The player would have very little to do, aside from occasionally touching a computer
screen or swiping his card at a terminal. Such games would be a kind of gambling far different from
the social bingo contemplated by the Legislature and voters who approved the bingo amendment.
See Tex. Att'y Gen. Ope No. GA-0541 (2007) at 5. Although games proposed by Senate Floor
Amendment No. 24 might have been called "bingo," they resembled video slot machines or other
illegal gambling devices. See TEX. PENAL CODE ANN. § 47.01(4) (Vernon 2003) (defining
"gambling device"); State V. Fry, 867 S.W.2d 398, 402 (Tex. App.-Houston [14th Dist.] 1993, no.
writ) (video slot machine is a gambling device); see also I. Nelson Rose, Is It Bingo, or A Slot
Machine? 7 Gaming Law Rev. 99 (2003). Attorney General Opinion GA-0541 concluded that a
"Texas court would find that 'bingo' within article III, section 47(b) does not include 'electronic
pull-tab bingo' as described by Senate Floor Amendment No. 24 to House Bill 3 ofthe Seventy-ninth
Regular Legislative Session," and that article III, section 47(b) ofthe Texas Constitution would not
except the electronic pull-tab bingo game from the prohibition against lotteries in section 47(a). The
opinion accordingly concluded that electronic pull-tab bingo would be unconstitutional under article
III, section 47(a). Tex. Att'y Gen. Ope No. GA-0541 (2007) at 6.
SSee id.
6A "[c]ard-minding device" is defined by Commission rule as "[a]ny 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 ofbingo and which allows a player to store, display, and mark a bingo card face five spaces wide
by five spaces long, the center space free, and the other spaces containing pre-printed numbers between 1 and 75,
inclusive." 16 TEX. ADMIN. CODE § 402.100(5) (2007) (Definitions), renumbered at 32 Tex. Reg. 6148, 6149 (to be
codified at 16 TEX. ADMIN. CODE § 402.100(6)).
7A smart card looks like a credit card, but contains an embedded microprocessor that can be read by a computer.
"What is a "smart card"? howstuffworks, available at http://computer.howstuffworks.comlquestion332.htm (last visited
Jan. 7, 2008).
The Honorable Jane Nelson - Page 4 (GA-0591)
The Bingo Enabling Act expressly provides that it is not to be construed to provide electronic
video bingo, in the following uncodified provision adopted in 1995:
Nothing in this Act shall be construed as authorizing any game using
a video lott~ry machine or machines. In this section "video lottery
machine" or "machine" means any electronic video game machine
that, upon insertion of cash, is available to play or simulate the play
of a video game, including but not limited to video poker, keno, and
blackjack, utilizing a video display and microprocessor in which the
player may receive free games or credits that can be redeemed for
cash, coins, or tokens or that directly dispenses cash, coins, or tokens.
Act of May 29, 1995, 74th Leg., R.S., ch. 1057, § 10,1995 Tex. Gen. Laws 5222, 5225 (House Bill
3021). Thus, the Legislature did not intend the Act to authorize any electronic video lottery game.
You are concerned that the following language in the Commission rule on pull-tab bingo
authorizes electronic bingo:
(a) Definitions ....
(19) Video Confirmation-A graphic and dynamic representation
of the outcome of a bingo event ticket that will have no effect on the
result of the winning or losing event ticket.
(e) Sales and redemption.
(10) A licensed authorized organization may use video
confirmation to display the results of an event ticket pull-tab bingo
game(s). Video confirmation will have no effect on the play or
results of any ticket or game.
(h) Style of play ....
(10) Video Confirmation shall be subject to Commission
approval.
The Honorable Jane Nelson - Page 5 (GA-0591)
32 Tex. Reg. 4388, 4391-94 (to be codified at 16 TEX. ADMIN. CODE § 402.300 (Pull-Tab Bingo
Games).
The above rule applies only to "event tickets." See id (to be codified at 16 TEX. ADMIN.
CODE § 402.300(a)(19), (e)(10)). The Commission's rules regulate "event tickets" but do not define
this term. See ide (to be codified at 16 TEX. ADMIN. CODE § 402.300(a)(I)-(19) (definitions); (h)(6)
(listing "Event Ticket" under "Style ofPlay")). However, a publication ofthe Commission describes
"event tickets" as follows:
Event tickets include the same features of regular pull-tabs but
incorporate a second level of play that provides an additional
opportunity to win. Event ticket winners are determined by some
subsequent action such as drawing ofball(s), spinning wheel, opening
of a seal on a flare(s) or any other method approved by the
commission, so long as that method has designated numbers, letters,
or symbols that conform to the randomly selected numbers or
symbols.
Texas Lottery Comm'n., Charitable Bingo Bulletin, at 6 (Jan./Feb./Mar. 2003).8 Thus, the video
confirmation you inquire about applies to the secondary level ofplay incorporated into event tickets.
We do not know how a particular video confirmation device operates or what its full
capacities are. The nature of a particular device raises fact questions, which cannot be addressed in
an attorney general opinion. See Tex. Att'y Gen. Ope No. GA-0391 (2006) at 12. We will, however,
base our reply to your question on information provided by the Commission. A brief submitted by·
the Commission states that the above rule "merely permits video display of winning numbers that
have been otherwise determined by the separate, non-electronic play of a game.,,9
While video confirmation may be one component ofelectronic bingo, we do not believe that
video confirmation of a bingo result would by itself comprise electronic bingo. Assuming that the
video confirmation device does nothing more than inform players ofthe winning numbers in a bingo
game, we do not believe that it would convert a bingo game into electronic bingo.
However, the application of video confirmation to event tickets raises other concerns under
the Texas Constitution and the Act. The Charitable Bingo Bulletin issued by the Commission
includes suggestions for introducing event tickets to bingo players, such as "[m]ake the playing of
the event ticket an independent and separate game for maximum excitement and impact," and
"[d]on't discontinue the original instant pull-tabs that you've been offering over the years." Texas
8Available at http://www.txbingo.org (last visited Jan. 7, 2008).
9See Brieffrom Sandra K. Joseph, Assistant General Counsel, Texas Lottery Commission, to Nancy S. Fuller,
Chair, Opinion Committee, Office of the Attorney General of Texas, at 1 (July 26, 2007) (on file with the Opinion
Committee).
The Honorable Jane Nelson - Page 6 (GA-0591)
Lottery Comm'n, Charitable Bingo Bulletin, at 6 (Jan./Feb./Mar. 2003). Your inquiry raises the
validity of the "event ticket" game itself. See Request Letter, supra note 1, at 1-2. We question
whether the Legislature and voters contemplated that "bingo" could encompass a second-level "event
ticket" game as described above or that "graphic and dynamic" video confirmation of a result was
an aspect of bingo. See Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992) (ifthere is doubt as
to the meaning of constitutional language, courts will consider the intent ofthe people who adopted
the provision); see also TEX. OCC. CODE ANN. § 2001.416(a) (Vemon2004) (a game ofchance other
than a raffle or bingo conducted under chapter 2002 may not be conducted during a bingo occasion).
You do not expressly ask whether an event ticket game is authorized by article III, section 47(b), and
we do not reach this question.
The Honorable Jane Nelson - Page 7 (GA-0591)
SUMMARY
A Texas Lottery Commission rule authorizing the "graphic
and dynamic" video confirmation device solely to inform players of
the winning numbers in a bingo game would not by itself convert the
game into electronic bingo.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee