Honorable Robert R. Barton~ Opinion No. M-773
District Attorney
Second 38th Judicial District Re: Whether a vending
Kerrvllle, Texas 78028 machine, converted
from a slot machine,
which returns an
ldentlcal souvenir
coin with each play
without application
of an element of
chance, violates the
provisions of Article
642a, Vernon's Penal
Dear Mr. Barton: Code.
In your recent letter you requested our opinion as to
whether a slot machine from which the chance or gaming feature
has been eliminatedand which has been "converted"Into a
souvenir vending machine so as to resemble a slot machine
violates the provisions of Article 642a, Vernon's Penal Code.
You state that the machine In question Is described, in
part, by the United States Patent Office as an Invention
comprehendingthe adaptation or modification of a gaming
device, often being referred to as a slot machine, with which
the player receives a chance of winning a return of several
minted or specie coins upon Inserting the required coin into
the slot and the pulling of a lever which activates coaxial
rotary wheels adapted to exhibit a pay-off combination of
lndicla appearing on the wheels. That the adaptation or
modification of the slot machine comprehendedby the Patent
on the machine In question is the ellminatlonof the gambling
or game of chance feature of the conventionalslot machine,
so that the player receives the same return with each play,
I.e., the machine returns an Identical souvenir-typecoin
every time a coin Is Inserted therein and the rotary wheels
activated by the pulling of the lever. It Is further described
asbelng a coin vending machine similar In appearance and
operation to a so-called slot machine and designed to permit
Its efficient and simple adaptation and constructionfrom a
conventionalslot machine.
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Hon. Robert R. Barton, Page 2 (M-773)
Article 642a, Vernon's Penal Code, provides In relevant
part as follows:
"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 whatsoevername
known, an essentialpart of which is a drum or
reel with Insignia thereon, and
(1) which when operated may deliver, as the result
of the applicationof an element of chance, any
money, or property or other valuable things, 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 deslgned
and manufacturedor 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
applicationof an element of chance, any money, or
property; or
(c) Any subassemblyor essential part ~lntendedtodmm~~
be used in connection with such machine or mechanical
device."
"Section 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
penltentlar not less than two (2) years nor more
than four (% ) years."
Section 1 of Article 642a quoted above contains three
definitions of a "slot machineW as proscribed by the Act.
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Hon. Robert R. Barton, Page 3 (M-773)
Subsection (a) defines a machine with drums or reels with
Insignia thereon which may deliver "as the result of the
application of an element of chance", money or other things of
value, snd a machine which may entitle (as opposed to deliver
to) the operating player to money or a thing of value "as a
result of the applicationof an element of chance." It seems
clear that since the element of chance has been eliminated
deliberately In the machine under considerationthat the
machine now does not come within the terms of subsection (a).
Subsection (b) proscribes a machine or mechanical device
operated by a coin 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".
(Emphasis added.)
Subsection (c) extends the proscription of the statute
to any subassembly or essentialpart Intended to be used In
connection with any machine or mechanical device proscribed
by said Subsection (b).
We believe that the case of State v. One Slot Machine,
305 S. W. 2d 386 (Tex. Clv. App. 1957, no writ), which you
cite In your brief accompanyingyour opinion request, Is directly
In point on the question presented. Therein, the Court held
that a marble table was within the prohibition of Article 642a
even though the mechanism delivering free games through an
element of chance was disconnectedso that free games could
not be given. The Court reasoned the marble table was designed
and manufactured so as to give free games by operation of
chance. Several federal cases were cited in the opinion In
support of the Court'sholding, among them being United States
v. 19 Automatic Pay-Off Pin-Ball Machines, D.C., 113 F. Supp.
230, holding the design and manufacture of the machine to be
controlling rather than the actual use or condition of the
machine at the time of the seizure.
In the device YOU describe and under the facts you present,
which-we m&t assum; are true, it seems apparent that thk
machine was also originallydesigned and manufacturedor
adaoted to ooerate by means of the lnsertlon of a coin, token
or &her object and beslgned, manufactured or adapted SO that
when operated It may deliver, as the result of an application
of an element of chance, money or property.
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. .
Hon. Robert R. Barton, Page 4 (M-773)
Furthermore,it seems apparent that the vending machine
In question is constituted In the main by an essential part of
the original slot machine prescribed by said Article 642,
Vernon's Penal Code, and thus comes within the purview of
Subsections (b) and (c) of the Article,
Article 642a contains almost the Identical language found
in Section 1171, Title 15, U.S.C.A., forbidding transportation
In Interstate commerce of gambling devices. The federal
courts, In construingthe statute, have uniformly held that
the design and manufacture of the machine Is controllingrather
than the actual use or condition of the machine at the time of
the seizure. U. S. v. 24 Digger MerchandisingMachines, 202 F.
2d 647 (8th Clr. 1958, cert. den. 345 U.S. 998); U. S. v. 19
Automatic Pay-Off Pin-Ball Machines, 113 F. Sup, 230 (W.D. La.
1953); U. S. v. Ansanl, 138 F. Supp. 451, 454 (at p. 458)
(N.D. Ill. 1955, aff. 240 F. 2d 216, 221; cert. den.358 U.S.
936; reh. den. 353 U.S. 978).
It seems that the gravamen of the offense which Article
642a was designed to eliminate is the use of any machine, in
whole or In part, that originally came into being with the
functions of a slot machine as defined by statute, regardless
of how such machine may thereafterbe altered. Therefore, It
Is to be understood that we are not passing upon the legality
of any such vending machine with the functions of the one In
question but which was fabricated wholly from new material which
had never been a part of any machine designed and manufactured
or adapted to operate by means of the insertion of a coin,
token or other object, and which was designed, manufactured
or adapted so that when operated It may deliver as a result
of an application of an element of chance, money or property.
We are in agreement with your conclusion that the machine,
having been originally designed and manufacturedto operate by
means of the Insertion of a coin to the end that when operated
it may deliver as the result of the applicationof an element
of chance, money, or property, Is a slot machine within the
intent and meaning of Article 642a, irrespectiveof its current
condition or use. After the removal of the gambling device
from the machine, the remaining $ortlon thereof would constitute
"subassemblyor essential part of a slot machine as defined
ind proscribed In Section 1 (c) of Article 642a.
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Hon. Robert R. Barton, Page 5 (M-773)
SUMMARY
A vending machine of souvenir type coins, converted
from a slot machine from which the chance or gaming
mechanism has been removed and constructed so as to
resemble a slot machine, operated by the Insertion of
a specie coin and by the pulling of a lever, comes
wittiihe proscription of Article 642a, Vernon's Penal
Code, since it was originally designed and manufactured
to deliver, when operated, a thing of value through an
element of chance, money,or property.
very trulyA
Prepared by R. L. Lattimore
Assistant Attorney General
APPRWD:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Mel COrley
Steve Hollahan
James Quick
Wardlow Lane
Meade F. Griffin
Staff Legal Assistant
Alfred Walker
Executive Assistant
Nola White
First Assistant
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