Texas Attorney General Opinion: O-5068 Page: 4 of 5
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Honorable Dvight Whitwell, page 4
offensive; hence the question of illegality must hinge
upon the nature of their actual use. 'A slot machine,
it has been said, is not per se a gambling device,
since it may be used or played upon for innocent pur-
poses; and the courts cannot, therefore, take judicial
notice that every slot machine is a gambling device,
since the use to which it has been put must determine
its character.' 24 Amer. Jur. 35, supra. 'A gaming
table is not determined by its structure, but of the
purpose for which it is exhibited'; Houghton v. Fox,
Tex. Civ. App. 93 S.W. (2d) 781, 782; and in all an-
notations under An. 619, Vernon's P.C. Vol. 1, p. 566,
where this phase of the statute has been considered,
it is uniformly stated that 'Whether or not the table
was designed for gaming purposes is immaterial . . .
it is the game or character of play on it that deter-
mines its status.' It would follow, therefore, that
the marble machines of the 'non-pay-off' variety, as
to which no evidence is adduced of their being used
for gaming purposes at the time of seizure, are not
gaming devices within the inhibition of the above
statute; for, no matter what the structure of these
particular boards may be, whether games of chance or
of skill, they are not to be classed ipso facto as
gambling devices, so long as not used for gambling
purposes; i.e., where no money or thing of value is
bet thereon. An entirely different situation would
exist if, by mechanical adjustment, the machines were
made to pay off; or if an understanding be had with
the proprietor 'over the counter' to the same effect;
or in case of knowledge and acquiescence by the
machine keeper to a wagering by players upon result-
ing scores. The machines would then become gambling
devices per se, placing the defendants factually
within the purview of Houghton v. Fox, supra; but such
evidence is wholly absent from this record."
In Callison v. State, 146 SW. (2d) 468, the court
held that in order to condemn property that might be used for
gaming and authorize its destruction, it must be shown that such
property was designed for gaming and was, at the time of seizure,
being used for gaming.
Therefore, it is the opinion of this department that
merely finding the music box connected to the marble machine
would not be sufficient evidence to secure a confiscation order.
That before such an order could be secured there must be some
evidence, whether offered by the peace officer from his observa-
tion or knowledge, or offered by others from their observation
or knowledge, that by a mechanical adjustment between the music
box and marble table, the latter would "pay off" in the nature
of musical selections emanating from the music box.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-5068, text, 1943; (texashistory.unt.edu/ark:/67531/metapth262326/m1/4/: accessed November 19, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.