No. V-1271 (1951).

• Case Date: September 05, 1951
• Court: Texas

Texas Attorney General Opinions 1951. No. V-1271 (1951). 1September 5, 1951Hon. Robert S. CalvertComptroller of Public AccountsAustin, TexasOpinion No. V-1271Re: Applicability of House Bill No. 326, making possession of certain gaming devices a felony, to "pinball" or "marble" machines which pay off the winner in free games rather than cash or physical property.Dear Sir:Your recent request for an opinion asks, in general, whether House Bill No. 326, Acts 52nd Leg., 1951, ch. 178, p. 299 (codified as Article 642a, V.P.C.), makes it unlawful to "own, keep or possess" devices commonly known as "pinball" or "marble" machines which automatically deliver free games to the winner instead of cash or physical property. You specifically inquire as to whether these "pinball" or "marble" machines are prohibited "slot machines," as that term is defined in Section 1 of the Act. The machines about which you inquire are described in your letter as machines "whose users propel balls with a plunger" and which are designed or adjusted so that the mechanism "will automatically permit a free play when a certain score is reached" without the deposit of additional coins therein. You further characterize these devices with the following statement:

" "Pinball" or "marble" machines do not contain a drum or reel with insignia thereon. Rather, they operate primarily through a series of electrical cross-connections, which are set in motion when the ball touches certain trips and switches, and which reflect themselves in lights or computers that reveal the player's score."

House Bill No. 326 provides, in part, as follows:2"Section 1. The term "slot machine" as used in this Act, means:

"(a) Any so-called "slot machine" or any other machine or mechanical device, by whatsoever name known, an essential part of which is a drum or reel with insignia thereon, and

"(1) which when operated may deliver, as the result of the application of an element of chance, any money or property or other valuable thing, or

"(2) by the operation of which a person may be entitled to receive, as the result of the application of an element of chance, any money or property or other valuable thing; or

"(b) Any machine or mechanical device designed and manufactured or adapted to operate by means of the insertion of a coin, token, or other object and designed, manufactured or adapted so that when operated it may deliver, as the result of an application of an element of chance, any money or property; or

"(c) Any subassembly or essential part intended to be used in connection with such machine or mechanical device.

"Sec. 2. Whoever shall manufacture, own, store, keep, sell, rent, lease, let on shares, lend or give away, transport or possess a slot machine, as defined in Section 1, shall be guilty of a felony and upon conviction thereof shall be confined in the State penitentiary not less than two (2) years nor more than four (4) years."

We agree with your own interpretation of your first question -- that Section 1(a) is not applicable to marble machines which have no "drum or reel," and that it is to Section 1(b) that we must look to determine whether marble tables and pinball machines are included within the Act.3It is obvious that coin-operated marble and pinball machines which automatically deliver, as the result of an application of an element of chance, money or physical property, are within the definition of the term "slot machine" in Section 1(b). Your primary concern is whether such machines are included within the statutory definition if they pay off the winner in free games rather than cash or physical property. This question is phrased by you as follows:

"SECOND QUESTION: Are "pinball" or "marble" machines which do not deliver money or physical property to a player, but which can be adjusted to award free games, "slot machines" within the meaning of the above-quoted definition, said definition being the one which is contained in Subdivision (b) of Section 1 of House Bill 326 ?"

We assume that you are interested only in those machines which are constructed or adapted to award free games rather than those which can be so constructed or adapted. There is a difference. Hightower v. State, 156 S.W.2d 327 (Tex. Civ. App. 1941). The words of the statute cover only that type of machine which is "designed and manufactured or adapted so that when operated it may deliver ... any money or property"(fn1). Our answer to your question will refer only to those machines which are designed and manufactured or adapted so as to automatically release or deliver free games to the winner. At the outset, the treatment of these so-called "free game" machines in the law and public policy of this State should be reviewed in order to keep in mind the nature of the subject matter being dealt with by the 52nd Legislature. Marble and pinball machines which pay the winner in free games instead of cash have been condemned by previous statutes and court decisions of this State the same as gaming devices which pay off in cash or physical property. State v. Langford, 144 S.W.2d 448 (Tex. Civ. App. 1940); Broaddus v. State, 150 S.W.2d 247 (Tex. Crim. 1941);4Hightower v. State, 156 S.W.2d 327 (Tex. Civ. App. 1941); Martin v. State, 162 S.W. 722 (Tex. Crim. 1942). They have not been considered mere amusement games for "skill or pleasure" by previous Legislatures and the Texas Courts. The above cited cases held that the keeping or exhibiting of such machines is prohibited by Article 619, V.P.C., which fixes a penitentiary sentence for violation thereof. Article 634, V.P.C., declares the mere existence of this type of gaming device "against public policy and a public nuisance." Williams Mfg. Co. v. Prock, 184 F. 2d 307 (U.S. Ct. App., 5th Cir. 1950). It is a proper presumption that the Texas Legislature, in considering H.B. 326, had knowledge of the fact that previous statutes, court decisions and declarations of public policy have placed free game pay-off machines in the same category as slot machines, gaming tables, and other devices which pay off in money or physical property and that the same penalties are provided for keeping and exhibiting such machines. Therefore, the question which you have posed is whether the Legislature, knowing the unlawful and felonious nature of these free game pay-off machines, intended by its wording of Section 1 (b) to exempt them from the new law prohibiting possession of other gaming devices of the same category. Specifically, did the Legislature use the word "property" in Section 1(b) in its broad sense so as to include "free games," or was the word used in the narrow sense so as to mean "physical property" and thereby exclude free game machines ? Some courts have construed the word "property" in gaming statutes to include free games, and others have said that it does not include them. In almost all instances the conflicting court decisions are based upon differences of opinion as to the value of free games and the variation of public policy with relation to free game pay-off devices in the different States. We have conducted an exhaustive research of the authorities to determine the fundamental considerations involved in the interpretation of statutes of this character. From this research we are convinced that the great weight of authority in the United States compels a construction of Section 1(b) of the Act as including such "free game" devices, and that the considerations given effect in such cases are in harmony with the prevailing case law in this State construing our gaming statutes.5While the type of prize or award which determines inclusion of these devices within Section 1(b) is described as "money or property," the cases dealing with this and similar expressions are almost invariably bottomed on the conception of the particular court as to the relative tangibility or value of the right to amusement, as afforded by the free games. Thus, where the court, as in the majority of the cases, considers amusement to be of value, the free games are held to constitute "money or property," "property of value," "a valuable thing," etc. Those courts taking a contrary view invariably base the decision on a conception that the replay privilege is too inconsequential and trivial to be of "value," or too intangible to constitute "property" within the meaning of such statutes, and within the evil sought to be remedied thereby. The basic divergence in the cases is best comprehended by an examination of the decisions on the subject. Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.2d 161 (1930), is a leading case, and one of the earliest, on the subject. The Arkansas Supreme Court said, at page 162:

"In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, and any one who shall bet any money or other valuable thing, or "any representative of any thing that is esteemed of value," is guilty, under Section 2634 of Crawford & Moses" Digest, of betting on a gambling device. By section 2640 of the same chapter of the Digest "gambling" is defined as the betting of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on gaming that the word "property", as used in section 2630, and the words "valuable thing," mentioned in other sections, are used synonymously, and that any

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