If two Texas laws define 'gambling device' differently, which one controls?

Plain-English summary

The 1993 Texas Legislature passed two separate bills in the same session that each rewrote the Penal Code's definition of "gambling device" in section 47.01. Senate Bill 1067 was a broad Penal Code revision that restated the definition and set it to take effect September 1, 1994. Senate Bill 522 amended the same definition to carve out an exception for certain bona fide amusement machines (those rewarding players only with noncash prizes worth no more than the lesser of $5 or ten times the cost of a single play) and added a matching defense to prosecution; it took effect August 30, 1993. The chair of the Senate Committee on Intergovernmental Relations asked the Attorney General whether the two definitions conflicted.

The Attorney General concluded that they did not truly conflict, and that he did not need to fall back on the Code Construction Act's tie-breaker (under which the later-enacted bill would otherwise win) because Senate Bill 1067 contained its own transition rule. Section 13.02 of Senate Bill 1067 said that any other 1993 Penal Code amendment applied only to offenses committed on or after that other act's effective date and before September 1, 1994. So Senate Bill 522's definition, along with its amusement-machine exception and defense, governed offenses committed in the window from August 30, 1993 to September 1, 1994, and Senate Bill 1067's definition governed offenses committed on or after September 1, 1994, leaving Senate Bill 522 in force only to prosecute the earlier offenses.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The September 1, 1994 cutoff that this opinion turned on has long since passed, and the Penal Code definition of "gambling device" in section 47.01 has been amended since 1994. Read this page as a record of how the office resolved a same-session drafting overlap, not as a statement of current gambling law.

What the opinion meant for those who asked

For the senator and the legislature: The opinion concluded the two definitions were not in irreconcilable conflict. Each governed a different period because Senate Bill 1067's own section 13.02 set the order, so the office did not need to declare one bill the winner over the other.

For prosecutors and courts: The opinion explained that which definition of "gambling device" applied depended on when the offense was committed. Senate Bill 522's definition applied to offenses committed on or after August 30, 1993 and before September 1, 1994; Senate Bill 1067's definition applied to offenses committed on or after September 1, 1994. An offense was treated as committed before September 1, 1994 only if all of its elements occurred before that date.

For amusement-machine operators and distributors: The exception in Senate Bill 522 for bona fide amusement devices paying only low-value noncash prizes was part of the definition the opinion said controlled during the August 30, 1993 to September 1, 1994 window, as was the related defense to prosecution. The opinion addressed only which enacted definition applied in which period; it did not opine on how the exception would be treated under later law.

Common questions

Did Texas's two 1993 gambling-device laws conflict?
No. The Attorney General concluded they did not truly conflict. Senate Bill 1067 carried its own transition rule (section 13.02) that set out how it interacted with other same-session Penal Code amendments, so the two definitions operated in different time periods rather than colliding.

Which definition of "gambling device" applied?
It depended on when the offense was committed. Senate Bill 522's definition applied to offenses committed on or after August 30, 1993 and before September 1, 1994. Senate Bill 1067's definition applied to offenses committed on or after September 1, 1994.

Why didn't the "later bill wins" rule decide it?
The Code Construction Act tie-breaker (Government Code section 311.025(b)) applies only when one amendment is made "without reference to another." The office found that Senate Bill 1067 expressly referred to other Penal Code amendments passed in the same session and gave a guide for construing them, so the office applied that guide (section 13.02) instead of the later-in-time rule.

What was Senate Bill 522's amusement-machine exception?
It excluded from the gambling-device definition any contrivance designed, made, and adapted solely for bona fide amusement purposes if it rewarded the player only with noncash merchandise prizes, toys, or novelties (or representations of value redeemable for those items) worth no more than the lesser of $5 or ten times the amount charged for a single play. Senate Bill 522 also added a defense to prosecution for playing such an excluded device for something of value other than money.

Background and statutory framework

Section 47.01 of the Penal Code defines the terms used in the gambling chapter, including "gambling device," and section 47.02 sets out the offense of gambling. In its 1993 regular session, the 73rd Legislature enacted two bills that both amended the section 47.01 definition of "gambling device."

Senate Bill 1067 (Acts 1993, 73d Leg., ch. 900) was a broad revision of the Penal Code. It restated the "gambling device" definition and, by its own terms, was to take effect September 1, 1994. Senate Bill 522 (Acts 1993, 73d Leg., ch. 774) amended the same definition to add the amusement-device exclusion and added a corresponding defense to prosecution under section 47.02; it had an effective date of August 30, 1993. Because the two acts touched the same statutory definition, the question was how they fit together.

The Code Construction Act provides that when amendments to the same statute are enacted at the same session, one amendment without reference to another, the amendments are to be harmonized if possible, and if they are irreconcilable, the latest in date of enactment prevails (Gov't Code § 311.025(b)). The office noted that, applied mechanically, that rule would make Senate Bill 522 (the later enactment) prevail. But it declined to apply the rule here because Senate Bill 1067 itself referred to other same-session Penal Code amendments and supplied a construction guide, citing Attorney General Opinion DM-234 (1993) for the point that section 311.025(b) does not apply where the legislature has clearly expressed its intent about how its law and another same-session law should fit together.

That guide was section 13.02 of Senate Bill 1067, which provided that an amendment to any Penal Code provision made by another act of the 73rd Legislature, Regular Session, 1993, applied only to an offense committed on or after the other act's effective date and before September 1, 1994, with the other act continuing in effect only to prosecute offenses committed before that date. Applying section 13.02, the office concluded that Senate Bill 522's definition applied to offenses committed from August 30, 1993 until September 1, 1994, and that Senate Bill 1067's definition applied to offenses committed on or after September 1, 1994, with Senate Bill 522 surviving only for prosecutions of the earlier offenses. The defense added by Senate Bill 522 carried the same limited effective dates.

Citations

Statutory provisions discussed:

• Penal Code § 47.01 (definition of "gambling device"; subsection (3)(B) amusement-device exclusion)
• Penal Code § 47.02 (gambling offense; defense to prosecution)
• Gov't Code § 311.025(b) (Code Construction Act; harmonizing same-session amendments)

Legislation discussed:

• Senate Bill 522, Acts 1993, 73d Leg., ch. 774, §§ 1, 2, 4 (amusement-device exclusion and defense; effective August 30, 1993)
• Senate Bill 1067, Acts 1993, 73d Leg., ch. 900, §§ 1.01, 13.02, 1.19 (Penal Code revision; transition rule; effective September 1, 1994)

Prior Attorney General opinion referenced: DM-234 (1993).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0280
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0280.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

January 3, 1994

Honorable Ken Armbrister
Chair
Committee on Intergovernmental Relations
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-280

Re: Whether Senate Bill 522, Acts 1993, 73d Leg., ch. 774, which sets forth certain exceptions to the definition of the term "gambling device," conflicts with provisions of Senate Bill 1067, Acts 1993, 73d Leg., ch. 900, defining that term (RQ-3 . . .)

Dear Senator Armbrister:

You ask whether Senate Bill 522, setting forth certain exceptions to the definition of the term "gambling device," conflicts with provisions of Senate Bill 1067 defining that term. The legislature recently enacted Senate Bill 1067, which significantly revises the Penal Code. See Acts 1993, 73d Leg., ch. 900. Senate Bill 1067 amends the definition of the term "gambling device" in section 47.01 of the Penal Code as follows:

"Gambling device" means any contrivance that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance.

Id. § 1.01 (italics indicate new language). This provision will become effective September 1, 1994. Id. § 1.19. It was enacted by the legislature on May 29, 1993. H.J. of Tex., 73d Leg., at 5164 (1993).

Senate Bill 522 amends the section 47.01 definition of the term "gambling device" as follows:

(3) "Gambling device" means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) of this subdivision that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. Gambling device:

(A) includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, which operate by chance or partially so, which as a result of the play or operation of the game award credits or free games, which record the number of free games or credits so awarded, and which also record the cancellation or removal of the free games or credits; and

(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties or representation of value redeemable for those items which have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.

Acts 1993, 73d Leg., ch. 774, § 1 (italics indicate new language). Senate Bill 522 also amends section 47.02 of the Penal Code by adding the following provision:

It is a defense to prosecution under this section that a person played for something of value other than money using an electronic, electromechanical, or mechanical contrivance which is excluded from the definition of gambling device under section 47.01(3)(B).

Id. § 2. These provisions were enacted by the legislature on May 31, 1993, see S.J. of Tex., 73d Leg., at 4118 (1993) and have an effective date of August 30, 1993, see Acts 1993, 73d Leg., ch. 774, § 4, at 3030.

The Code Construction Act provides in pertinent part that

if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails.

Gov't Code § 311.025(b) (emphasis added). Were we to conclude that the Senate Bill 522 and Senate Bill 1067 definitions of the term "gambling device" conflict irreconcilably, the bill with the latest enactment date, Senate Bill 522, would prevail. We do not believe that it is appropriate to apply the Code Construction Act's rule of construction in this instance, however, because Senate Bill 1067 makes express reference to other acts amending the Penal Code in the same session, and establishes a guide for their construction. See Attorney General Opinion DM-234 (1993) at 4 (Code Construction Act, Gov't Code § 311.025(b), does not apply where the legislature has "clearly expressed its intent with regard to the proper course should a provision of that law and another law adopted in the same session conflict"). Section 13.02 of Senate Bill 1067 provides in pertinent part:

(a) . . . an amendment to any provision of the Penal Code made by another Act of the 73rd Legislature, Regular Session, 1993, . . . applies only to an offense committed under the provision on or after the effective date of the other Act and before September 1, 1994. The amendment made by the other Act continues in effect only for the limited purpose of the prosecution of an offense committed before September 1, 1994.

(b) For purposes of this section, an offense is committed before September 1, 1994, if all elements of the offense occur before that . . . .

Acts 1993, 73d Leg., ch. 900, § 13.02(a), (b).

Under section 13.02 of Senate Bill 1067, the definition of the term "gambling device" set forth in Senate Bill 522 applies only to an offense committed on or after August 30, 1993, and before September 1, 1994. After September 1, 1994, Senate Bill 522 continues in effect only for the limited purpose of prosecuting offenses committed before that date.[Footnote 1] The definition of the term "gambling device" set forth in Senate Bill 1067 will be effective on September 1, 1994, and will apply to all prosecutions after that date, except for prosecutions of offenses committed before that date. Under section 13.02, an offense is committed before September 1, 1994, if all elements of the offense occur before that date.

SUMMARY

The definition of the term "gambling device" set forth in Senate Bill 522, Acts 1993, 73d Leg., ch. 774, § 1, applies only to an offense committed on or after August 30, 1993, and before September 1, 1994. After September 1, 1994, Senate Bill 522 continues in effect only for the limited purpose of prosecuting offenses committed before that date. The definition of the term "gambling device" set forth in Senate Bill 1067, Acts 1993, 73d Leg., ch. 900, § 1.01, will be effective on September 1, 1994, and will apply to all prosecutions after that date, except for prosecutions of offenses committed before that date.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnote 1: The defense to prosecution set forth in Senate Bill 522 will have the same limited effective dates.