Judges: GREG ABBOTT, Attorney General of Texas.
Filed Date: 4/19/2007
Status: Precedential
Modified Date: 7/6/2016
The Honorable Jane Nelson, Chair, Committee on Health and Human Services Texas State Senate Post Office Box 12068 Austin, Texas 78711-2068
Re: Whether the Legislature may authorize electronic pull-tab bingo by statute without amending the Texas Constitution (RQ-0547-GA)
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.1 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), SJ. OF TEX., 79th Leg., R.S. 1807-13 (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
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. PENAL CODE ANN. §
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,
In 1979, shortly after the Amvets opinion, the Legislature proposed an amendment to article III, 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:
*Page 3(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
bingo make reports to the comptroller about amount and use of proceeds collected from bingo games].
TEX. CONST, art. Ill, § 47(b)-(c). Bingo games authorized by a law adopted pursuant to article III, 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.
[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 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. ADMIN. CODE § 402.100(5) (2006) (Tex. Lottery Comm'n, Definitions); see also id. § 402.302(a)(2)(A) (Tex. Lottery Comm'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. CODE ANN. §
SJ. of TEX., 79th Leg., R.S. 1807 (2005) (proposing adoption of Occupations Code section
We first consider the purpose of the bingo amendment. The court inAerospace Optimist Club, considering whether article III, 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 HOUSE STUDY GROUP, SPECIAL LEGISLATIVE REPORT, CONSTITUTIONAL AMENDMENT ANALYSIS (Apr. 30, 1980) at 21 (law against bingo is selectively enforced to permit bingo games held by religious and non-profit organizations); TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS, FOR ELECTION NOVEMBER 4, 1980, at 9-10 (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 *Page 5
criminal acts by participating in bingo games." Aerospace OptimistClub,
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,
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 III, section 47(b). The 1981 Act defined "[b]ingo" 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.
In addition, the legislative history of article III, 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." HOUSE STUDY GROUP, SPECIAL LEGISLATIVE REPORT, CONSTITUTIONAL AMENDMENT ANALYSIS (Apr. 30, 1980) at 22; see TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS, FOR ELECTION 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 inAmvets, 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 "[b]ingo-type games contemplate a group activity, often social." Fraternal Order of EaglesSheridan Aerie No. 186, Inc. v. State ex rel. Forwood,
Very truly yours,
GREG ABBOTT, Attorney General of Texas
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
There is now a computerized version of pull-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 7 Indian Gaming Comm 'n,
cabazon-band-of-mission-indians-eastern-band-of-cherokee-indians-poarch , 14 F.3d 633 ( 1994 )
Brown v. Meyer , 787 S.W.2d 42 ( 1990 )
Aerospace Optimist Club v. Texas Alcoholic Beverage ... , 886 S.W.2d 556 ( 1994 )
State v. Socony Mobil Oil Company , 386 S.W.2d 169 ( 1964 )
Hill County v. Sheppard , 142 Tex. 358 ( 1944 )
American Indemnity Co. v. Austin , 112 Tex. 239 ( 1922 )
Fraternal Order of Eagles Sheridan Aerie No. 186, Inc. v. ... , 126 P.3d 847 ( 2006 )
State v. Amvets Post Number 80 , 541 S.W.2d 481 ( 1976 )