January 8, 1975
The Honorable Tom Hamilton Opinion No. H- 489
District Attorney
Courthouse Re: Whether quarters of
Plainview,’ Texas 79072 fraternal and veterans
organizations and private
clubs are “private places”
within section47.02, Penal
Dear Mr. Hamilton: Code
You have requested an opinion as to whether quarters of fraternal
and veterans’ organizations and private clubs are “private places” within
section 47.02(b) of the Penal Code.
Chapter 47 of the Penal Code contains the penal provisions proscribing
gambling and related activities. Section 47.02(b) provides as one element
of a defense to a gambling prosecution that “the actor engaged in gambling
in a private place. I’ Section 47,01(7) defines a private place as:
a place to which the public does not have access,
and excludes, among other places, streets,
highways, restaurants, taverns, nightclubs,
schools, hospitals, and the co-on areas of
apartment houses, hotels, motels, office
buildings, transportation facilities and shops.
Article 666-15e, Penal Auxiliary Laws, part of the Texas Liquor
Control Act, defines a private club:
(a) ‘Private Club’ shall mean an association of
persons, whether unincorporated or incorporated
under the laws of the State of Texas, for the
promotion of some common object and whose mem-
bers must be passed upon and elected as individuals,
by a committee or board made of members of the
club.
p. 2213
The Honorable Tom Hamilton, page 2 (H-489)
The Act further implies that services shall be limited to members and
their guests.
The State Bar committee which drafted the proposed Penal Code
discussed the defense in question as follows:
The committee’s main concern is to prohibit
social gambling in public places . . . . The defense
is not extended to clubs and other locations that are
only nominally private and to which, in fact, the
public has access.
State Bar Committee on Revision of Penal Code.
A Proposed Revision of Texas Penal Code at 330
(Final Draft 1970). See Practice Commentary.
Penal Code § 47.02 ;;F?O6.
The committee’s draft of the defense was adopted by the Legislature
without change, thus it is reasonable to assume that the Legislature intended
the provision to have the effect the committee said it would.
In our opinion, whether quarters of private clubs and fraternal and veterans’
organizations are “private places ” for purposes of establishing one element
of the defense to a gambling prosecution under section 47.02(b) depends on
whe.th.er such quarters are in fact places to which the public does not have
acces8, and are not only nominally private.
SUMMARY
Whether the quarters of private clubs and fraternal
and veterans’ organizations are “private places” for
purposes of the defense to a gambling prosecution
depends on whether such quarters are in fact places
to which the pub1i.c does not have access, and are not
only nominally private.
Very truly yours,
A
Attorney General of Texas
p. 2214
The Honorable Tom Hamilton, page 3 (H-489)
APPROVED:
DAVID M. KENDALL. First Assistant
Opinion Committee
p. 2215