Ausxxu 11. Texas
August 18, 1950
Hon:, Wiley L, Caffey opinion No. v-~1091
Dietriot Attorney
Abilene, Texas Re: Legality of machines
which dispense ball
gum or metal trinket
Dear Sir: when penny is inserted.
Your recent letter,~inquirea as to the’legrLd.ty of the
operat%on d’ “Gum-Trinket Penny Machfnes” which, you advise,
oonsist, of “a &ass ball filled with either ball gum o.r some
other type of gum, and vlth a lesser number of! trinkets, .
more valuable than the gum. A penny is inserted and the machine
dispenses either a piece of gum or a trinket.”
Artfcle 619, V.P.C,, provides a8 followsn
“off any. person ehall directly~, ‘or as agent
or employee for another, or through any agent or
agents, keep or exhibit for the purpose of gaming,
any policy game, any gaming table, bank, vheel or
devl OS Y name or delcrlption whatever, or any
tabl”,‘l ban: wheel or device for the purpose of
gam%ng,vhich has no name, 02 any slot machine, any
pigeon hole table, any jenny-lind table, or table
of any kind whatsoever, regardless of the name or
whether named ornot, he shall be confined In the
penitentiary not leas than two nor more than four
yeara regardless of whether any of the above men-
tioned games,, tablea, banks, wheels, devices or
alot maohlnear are licensed by law or not. Any
such table, bank, wheel, machine or device shall
be considered as used for gaming, if money or an -
thing of value is bet thereon. Acts 190 , pa 10 is
;
Acts 1913, pl 277.” (Emphasis supplied. 1
The question here presented is whether the machine de-
.,,’scribed by you is .a g,aMng device. Since the machine contains
both bal& gum and trinkets and dispenses either a piece of gum
or a trinket tb) one vho inserts a coin therein, we agree with
you that Its operation qresents 'an ~element of chance. The ma-
chino is similar to a slot machine in that the result of playing
It depends upon the ~machine itself and not upon any skills of
operation. However, the statute in question makes no distinction
Hon. Wiley L, Caffey, page 2 (V-1091)
“TiS$ ~partfrrigant paid,,54 ,for the privilege of
drawing :&~oapsuZe o&x&x&ng a number ,fropl the bowl.
fluI& 2 reqzL$r~~Iru~''to~~qep+?he hie q~usstion f~oltr
the,‘,graup dPepl&yeb on .the’board .and disclose the
coTTec~ ‘m3weT:~In t&Tcy aeeoo.ds . If he vere unable
~to. oomplete tM%-perfoormbnoe within the thlrt y seco~nda,
or,,,~if his anever be inoorrect, he lost hi8 nickel.
i If~:vith~in time and his an8ver be oorre,ct, he reaelved
,,,',3he~~cpnOunt: Opposite his number combination and, ques-
t,ion,,-ratiglng from log ‘to o,ne dollar, a8 above lndi-
ci&&+ It oannot be known what the number will’be
unt’!&it! 18 dravn~ and removed from the oapsule..
“ih, are of the opinion they are *gaming devices 1
“vi&in the meanin of Art. 6,19,, Penal Code of Texas,
uhiob makes it un,Lw ful to fkeep or .exhibit for the
pu@ts5~3s.offgaming, any policy game * + * or dewloe
&.stx4ption whatever * * * or devloe
g$&&$& wh;$&, has, no name, + * f:
%&code daes not define g&me or gaming, nor
Boos the statute make any distinction between games
,of oha@ce ..and games of skill. Texas Courts have
madeno such distinctions. In the early case of
Steam&3 ‘v , State, 21 Tex. 692, the Supreme Court,
on a~:conside.ration of the statute containing the
L&nguage above quoted, defined a game as follows:
iA game is a trial of skill, or of ahanoe, or of
skill and chance, between tvo or more contending
partlee, acaording to some rule by which each may
euaceed or fail in the trial.1 %?hlarule vat3held
t be correct in Toler v. State, 41 Tex, Cr. R. 659,
5% s.w.917. As we understand the o lnion in Adams
v. Aateaio, Tes. Civ t APP., 88 S.W,% 503, vrft
refWied,that def’iaition va6 a ia reoognlaed as
oorrect. In thirp Latter oa1te Tt $8 mid that it was
unnecessary to determine whether the game played Is
one of ahanoe or ekill for-the PeaBou the statute
makes no such distinctIon (bottom first 6olumn, 88
S,W,2d at page 505). !Phe ooateption that ekill
Hon. Wiley I.0. Caffsg, page 3 (v-1091)
predominates avails nothing. The induo6ment and
lure of this ,game is the odds ranglng from two to
twenty to one. . .I
We cannot test a gaming devioe by degree or by the
amount of money required to operate such device. The test is
in its purpose and method of operation. The maahlae here un-
der examination is no less a gaming device merely because the
amount of money required for a single operation is trivial;
in this case one ‘Benny. It is evident that trinkets are put
in the machine to induce prospective players, regardless of
age, to place money %herein repeatedly with the hope of getting
a trinket more valuable thaq a ball of gum. The uncerta,inty of
whether the machine will pay off a trinket or a ball of gum of-
fers sufficient element of ohanoe to constitute gaming. In our
opinion, the machine is a gaming device contrary to publio pol-
Log and prohibited by the statvta in question.
SUMMARY
A pm-trinket machine consisting of a glass ball
containing ball gum and trinkets, one of either of
which will be dispensed upon the insertion of 8
penny Into such mauhlne, 1,s a gaming device and pro-
hibited by Article 619, V.P.C.
Yours very truly
APPROVED: PRICE DAI’iIEL
At to%ne y General
Ned blcDan~ls1
State Affairs Division
Everett Hutohinson
Executive Assistant
Charles D. Mathews
First Assistant
JSM/rt