Was a computer terminal that only dispensed state-lottery tickets a 'gambling device' under Texas law?

Texas AG Opinion JM-368: Lottery Terminal Is Not a Device

Plain-English summary

A Texas manufacturer produced PAT-2000 transaction terminals that could dispense many products, including airline tickets, entertainment tickets, money orders, and New York State Lottery tickets. A senator asked whether the terminal was a gambling device under Penal Code sections 47.01(3) and 47.06. The Attorney General concluded that it was not. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

The statutory definition required a mechanical contrivance that, for consideration, gave the player an opportunity to obtain something of value whose award was determined by chance. The PAT-2000 had no lottery database of its own and could not dispense lottery tickets until connected to New York's main computer. Its sole function was recording transaction information and distributing tickets. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Chance entered through the later lottery drawing, not through the transfer of the ticket by the terminal. Although selling or possessing lottery tickets in Texas could be a separate offense, the terminal itself lacked the element of chance necessary to be a gambling device. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Did it matter that many terminals were made for a state lottery?

No. Even if a terminal was designed to dispense lottery tickets, sections 47.01 and 47.06 still required the machine itself to satisfy the gambling-device definition. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Where did the element of chance occur?

In the lottery drawing. The terminal's transfer of a ticket did not determine whether the purchaser received a prize. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Was the machine a disabled gambling device?

No. The opinion distinguished machines whose chance function had merely been disabled. The PAT-2000 contained no chance function that needed disabling. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Did the opinion say lottery tickets could lawfully be sold in Texas?

No. It noted that actual sale or possession of lottery tickets could be an offense and addressed only whether the PAT-2000 was a gambling device in itself. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Did the Attorney General decide whether the statute was unconstitutionally vague?

No. After concluding that the statute did not apply to the terminal, the opinion did not reach the void-for-vagueness question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Background and statutory framework

Penal Code section 47.06 prohibited knowing ownership, manufacture, transfer, or possession of gambling devices and certain essential components. Section 47.01(3) defined a gambling device through consideration, an opportunity to obtain value, and an award determined by chance. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

The opinion said the legislature had devices such as slot machines and roulette wheels in mind. A terminal capable only of dispensing tickets did not perform the chance-based function those devices performed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Citations and references

• Penal Code §§47.01(3), 47.03(a)(5), 47.06(a), (b), 47.07(a)
• Attorney General Opinions H-940 (1977), H-1153 (1978), MW-168 (1980)
• Practice Commentary to Penal Code §47.01

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0368
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0368.pdf

Original opinion text

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

The Attorney General of Texas

October 22, 1985

Honorable Oscar Mauzy
Chairman
Committee on Jurisprudence
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-368

Re: Whether a ticket-vending computer terminal which merely dispenses tickets is a "gambling device" under chapter 47 of the Penal Code, and related questions

Dear Senator Mauzy:

You ask whether the PAT-2000, a ticket-vending computer terminal, is a "gambling device" under sections 47.01(3) and 47.06 of the Texas Penal Code. You also ask whether subsections (a) and (b) of 47.06, which set forth the elements of the crime of possession of a "gambling device," are unconstitutionally vague.

Section 47.06 provides, in part:

(a) A person commits an offense if he knowingly owns, manufactures, transfers, or possesses any gambling device that he knows is designed for gambling purposes or any equipment that he knows is designed as a subassembly or essential part of a gambling device.

(b) A person commits an offense if, with the intent to further gambling, he knowingly owns, manufactures, transfers commercially, or possesses any altered gambling equipment that he knows is designed for gambling purposes or any equipment that he knows is designed as a subassembly or essential part of such device.

Section 47.01(3) provides:

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

Application of these provisions depends upon the physical characteristics of the particular object or device in question. See Attorney General Opinions MW-168 (1980); H-1153 (1978); H-940 (1977). Syntech PAT-2000 computer terminals are known as "transaction processing equipment." The technical information submitted to us shows that they record transaction information and distribute tickets. The PAT-2000 is capable of dispensing a wide range of products, such as airline tickets, entertainment tickets, and money orders. It is similar in function to the automatic teller machines which are now in use across the state. Nevertheless, many of the PAT-2000 terminals which are presently produced in Texas are manufactured to produce tickets which are used in the New York State Lottery. Because the PAT-2000 terminal contains no data base for lottery tickets, however, the tickets cannot actually be dispensed until it is connected to the main computer in New York.

The statutory definition of "gambling device" requires, among other things, proof that the award of a thing of value by the device be "determined by chance, even though accompanied by some skill." Penal Code §47.01(3); Attorney General Opinions MW-168 (1980); H-1153 (1978). Thus, even if the PAT-2000 was designed specifically for a purpose, such as a lottery, which would constitute an offense in Texas, the offenses described in subsections (a) and (b) of section 47.06 require proof that the machine in question is itself a "gambling device" or subassembly of a "gambling device" within the meaning of section 47.01(3). See Attorney General Opinion MW-168 (1980).

The foregoing description of the PAT-2000 demonstrates that its sole function is to dispense tickets. Once the terminal is connected with the main computer in New York, the tickets dispensed by the PAT-2000 will have state lottery numbers on them. The element of chance, however, is added in an entirely separate process and is not an essential element of the product at issue. The element of chance occurs in the lottery drawing, not in the transfer of a lottery ticket. Although the actual sale or possession of lottery tickets in Texas is an offense, see Penal Code §§47.03(a)(5), 47.07(a), we deal here only with the narrow question of whether the PAT-2000 is a "gambling device" per se.

Consequently, based on the information about the PAT-2000 submitted in connection with your opinion request, we conclude that the essential element of chance is not present in the PAT-2000 terminal. We note that although the element of chance may be temporarily removed by "disabling" a device, this will not prevent it from being a "gambling device." See Attorney General Opinion H-940 (1977). This is not, however, relevant to the case at hand because the PAT-2000 contains no element of chance and need not be "disabled."

We do not believe that the legislature intended to include within "gambling device" a terminal which is capable only of dispensing tickets. The legislature intended section 47.01(3) to reach devices such as slot machines and roulette wheels. See Practice Commentary to section 47.01 (suggesting that a "mechanical contrivance" may also be required by the definition).

In light of this conclusion, we do not reach your second question of whether the void-for-vagueness doctrine prevents application of section 47.01(3) and subsections (a) and (b) of section 47.06 to the PAT-2000 terminal.

SUMMARY

A "gambling device," as defined in section 47.01(3) in conjunction with subsections (a) and (b) of section 47.06, does not apply to the Syntech PAT-2000, a ticket-vending computer terminal which merely dispenses tickets. The device lacks the element of chance essential to a "gambling device" under section 47.01(3).

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk