Untitled Texas Attorney General Opinion

Hon. Homer G,arrison, Jr., Director
Department of Public Safety
C,amp Mabry
Austin, Texas
Dear Sir:
Opinion No. 0- 1947
Re: Is the Department of Public Safety
authorized to seize punch boards,
tip sheets, and/or slot machines
from the warehouse or di.strib$ting
point-of a person or persons in the
business of distributing same?
We have re.c.&iv& your letter requesting the opinion of this department
upon the above stated question.
Your letter reads as follows:
“Please advise me whether~ or not, in your opinion, we will
be authorized to seize punch boards, tip sheets, and/or slot ma-
chines from the warehouse or distributing point of a person, or I
persons, in the business of distributing the aforementioned devices.
“The aforementioned devices, of course, are not being used
for gambling purposes in the warehouses, but are bking held to be
distributed for illegal purposes.”
We presume that you are interested in ascertaining whether or not
punch boards, tip sheets, and/or slot machines must be exhibited for the pur-
pose of gaming before they are subject to seizure, or may they be seized from
the warehouse or distributing point of a person, or persons, in the business of
distributing same, before they are actually distributed and exhibited for ille-
gal purposes.
Article 630 of the Penal Code of Texas provides:
“If any person shall knowingly permit any gaming para-
phernalia, table, or device or equipment of a gaming house, of
any character whatever, to remain in his p+ession or on premises
under his contr~ol or of which he is owner and to be used for gam-
ing pur,po.ses,: he shall be impii&oned in jail not less than thirty
days nor more than one year?’
. .
Hon. Homer Garrison, Jr., Page 2 (Opinion No. :0;.1,947)
Article 632 of the Penal Code of Texas pr,ovides:
“Whenever it comes to the knowledge of any sheriff or
other peace officer, by affidavit of a reputable citizen, or
otherwise, that any provision of the preceding articles of this
chapter is being violated, such officer shall immediately avail
himself of all lawful means to suppress such violation; and he
shall be authorized, by any s,earch warrant that is issued by
virtue of this law, to enter any house, room or place to be
searched, using such force as may be necessary to accom-
plish such purpose.”
Article 636, of the Penal Code, provides:
“It shall be the duty of every sheriff, or other peace
officer by virtue of the warrant au,thorieed by this chapter
to seize and take into his possession all gaming tables,
devices and other equipments or paraphernalia of gambling
houses, the existence of which has come to his knowledge
and to immediately file with tie justtce of the peace, county
judge, or district judge, a written list of property seiz,ed
designating the place where same was seized, and the owner
of same, or the person from whom possession was taken.
Thereupon said justice of the peace, county or district judge
shall note the same upon his docket and issue, or cause the
clerk of the court to issue a written notice to the owner or
person in whose possession the articles seized were fourid,
commanding him to appear at a designated time, not earlier
thap five days from the service of s,uch notice, and show
cause why such articles should not be destroyed. . . .”
Article 637 of the Penal Code provides:
“If upon a hearing of the matter referred to in the
preceding article, the justice of the peace, county judge or
district judge, before whom the cans? is pending shall deter-
mlne that the property seized is a gaming table or bank or 1s
used as equipment or paraphernalia for a gambling house,
and was being used for gaming pu,rposes, he shall order same
to be destroyed, but any part of same may, by order of the
court be held as evidence to be used in any case until the case
is finally disposed of. -Property not of that character or not
so used shall be ordered returned to the person entitled to
possession of the same. The officer, within not less than
fifteen nor more than thirty days from the entry of said
ordee shall destroy all property the destruction of which
has b&en ordered by the court, unless the owner, lessee or
person entitled to possession under this law, shall, before
the destruction of said property, flle suit to’recover same.
Hon. Homer Garrison, Jr., Page 3 (Opinion No. 0 - 1947)
“Sec. 2. If upon a hearing of the matter referred to in
Article 636, Penal Code of Texas (1925) the justice of the
peace, county judge or district judge before whom the cause
is pending shall determine that the property seized, or any
part thereof, is not gambling paraphernalia per se, but that
the same or any part thereof was used as equipment or
paraphernalia for a gambling house and was being used for
gaming purposes and that said property is capable of being
used for some legal purposes, he may, in his discretion,
by order of the court declare the same confiscated and cause
the same to be delivered to the State of Texas, or any politi-
cal subdivision thereof or to any State institution to be kept
by it for its own use and benefits.
“The officer shall show by his return the disposition
of the property made by him which shall be in compliance
with the orders of the court. Acts 1907, p. 110; Acts 1935,
44th Leg., p. 490, Ch. 203, i 1.”
In the case of Scott v. State, 95 SW 2d, 140 (Grim. App.) Judge
Lattimore, in construing Article 630 of the Penal Code, supra, wrote:
“Such said A.rticle 630, supra, seems aimed at him
who permits gaming tables, etc., to remain on his premises,
or on premises of which he is owner, but which may not
actually be in use as such gaming devices, tables, etc., we
have upheld misdemeanor convictions in cases of prosecu-
tions under said article, charging that the accused permitted
these tables, devices, etc., to remain on his premlses. See
Abraham v. State, 118 Tex. Grim. Rep. 136, 39 S.W.2d 42;
France v. State, (Tex. Grim. App.) 39 S.W.2d 43. It seems
clear to us that said Article 630 would and could, have no
application to any state of facts from which it appears that
the paraphernalia, devices, tables, etc., mentioned or in-
cluded in said article, were being made use of at such place
for playing or exhibiting any game for which such devices,
tables, etc., were usable as gambling tables and devices,,
and upon which money or other thing of value was being bet,
wagered or staked.”
The above case was followe,d in the case of Graham v. State,
125 S.W.2d 562, decided by the court of criminal appeals of Texas on
January 25, 1939.
A slot machine 1s specifically named as a gambling device in
Article 619 of the Penal Code, and although tip sheets and punch boards
are not specifically mentioned in the Penal Code, the case of Starnes v.
State, 21 Tex. 693, holds, in effect, that it is difficult to imagine any
species of a table or a bank or gaming device that would not be included
Hon. Homer Garrison, Jr., Page 4 (Opinion No. O-1947)
in the clauses of the Code.
Whether or not the device was designed for gaming purposes
is immaterial. It is the game or character of play on it that determines
its status. Estes v. State, 10 Tex. 300; Starnes v. State, 21 Tex. 693;
Chappel v. State, 27 Crim. Rep. 310; Bird v. State, 148 S.W. 738; Mills
v. Browning, 59 S.W.2d 219.
If the machine or article is a gambling device, or equipment
or paraphernalia of any gambling house, It 1s to be destroyed. A gamb-
ling device may be one which.is made primarily and principally for
gambling, such ,as a roulette wheel, and this primary and principal pur-
pose being established, no further proof of its actual use is required:
or it may be a device which is useful for service to law abiding society,
in which event the article itself must be shown to be actually used in
gambling to constitute it condemnable. Mills v. Browning, 58 S.W.2d
219.
Article 1, Section 9 of the Constitution of Texas provides:
“The people shall be secure in their persons, houses,
papers and possessions from all unreasonable seizures and
searches, and no warrant to search any place, or to sdizer~
any person or thing, shall issue without describing them as
near as may be, nor without probable cause, supported by
oath or information.“
For the purpose of giving effect to Article 1, Section%9, of the
Constitution of Texas, the Legislature enacted Article 4, Code of Criminal
Procedure, the language of which is identical with Article 1, Section 9,
supra, and Article 4a, Code of Criminal Procedure, which reads as follows:
“It shall be unlawful for any person or peace officer
or State Ranger to search the private residence, actual
place of ha; ‘:.ti’%n, place of business, person or personal
posessions of any person, without having first obtained a
s.earch warrant as required by law.”
The Constitution and statutes do not prohibit every character d
search and seizure without a warrant, but only prohibits unr-e,asonable
searches and seizures. It was held in Moore v. Adams, 91.SW 2d 447,
that the sheriff of Potter County had a right to seize slot machines with-
out a warrant, so long as the sheriff acted upon probable cause, and did
not have to commit a trespass to galn entrance to the premises from
which the slot machines were se.ized. In this case, the machines were
operated for gaiming purposes in pu61ic palaces, to which the entire pub-
lic, including the sheriff and his deputies, had access,.
Under the state of facts as outlined in your letter, the gambllng
HonHomer Garrison, Jr., Page 5 (Opinion No. O-1947)
devices or paraphernalia, are ,stored in a warehouse, and not in a public
place to which the entire publi,c, including members of the Department
of Public Safety, have access.
In view of the foregoing statutes and authorities, you are
respectfully advised that it is, the .opinion of this department that the
Department of Public Safe’ty is authorized.to seize under a search
war*& punch .boards. tip sheets and/or slot machines from the ware-
house or distributing point of a person or persons in the busine,ss of
distributing same. However, members of the’Department of Public
Safety are authorized to seize slot machines, or any other gambling
device which is a gambling device per se, at any place where the same
may be found, when the officers are at said place by lawful means.
Very truly yours
ATTORNEY GENERAL .OF TEXAS
By /s/ D. Burle Daviss
D. Burle Davis6
‘Assistant
DBD:AW:ps
APPROVED APR 25, 1940
/so/ Gerald C. Mann
ATTGRNEYGENERALOF TEXAS