Attorney General Opinion JM-0368

JIM MATTOX Attorney Getma supmme cowl suihiing P. 0. Box 12949 Atmtln. TX. 797ll- 2548 51214752991 Telex Slow74.1297 1-r 512/4750289 4924 Albmte Ave. Stdtb 10 ElP4SO.T% - 91615939484 Uoo N. Tenlh, Sulto S MeAllenn. lx. 7s5o1-1(185 51-7 2ooMalnPleza,sune400 San Anlonlo, lx 7aw-2797 612@29.4191 : ! The Attorney General of Texas October 22, 1985 Honorable Oscar Hauey chsirmeu Committee on Jurisprudence Texas State Senate P. 0. Box 12068 Amstin. Texas 78711 Opiuiou R0.~'&368 Re: Whether a ticket-vending computer terminal which merely dispenaes.tickets is a "gambling device" 'under chapter 47 of the Penal Code, and related questions D& SAator ibusy: Pea ask whethw the PAT-2000, a tickat-veading computer terminal is a "gadlius dev!r:e" uader sections 47.01(3) and 47.06 of.the Texas Peuslr code. Pou.also ask whether subsections .(a):.&.(b) of 47.06, whickSet forth'thr! elements of~the 'crime of possession-of a "gsmbliug device," are unccau~titutionally vague. ;.i; (' '. Sectlon'47.06 provides, in part: . y. ~'(a): 1~' persou cumlts au offen.se'~~.if he kuowiugl~r ~.owus, mauufactures;~ ttaasfers;~ or poasesseu any gambling de+ice that he .knWs is designed for gambl&ng purposes or snp'equip&at that.~ he knows is designed as a subassembly or esseatia:t part of a gambling device. (b) A person comlts an offense if. with the intent 1.0 further gsmbling, he knowingly. owns, marmfaCtw:es. transfers coumerc%all~, or p?asesses any altered gambling equipment 'that' he knows is designed for gambling purposes ore any equipment that he knows is daslgaed as a subassembly or eseeutisl part of such device. Section 47.01(9) provides: 'GembLLng device' means, any mechanical ctitri- Vance that for a consideration affords the player an opportunity to obtain~aaytbing of value. %he award OF which is determined by chance, even though r.ccompanied by some skill. whether or not the prim is' automatically paid 'by the ~'con- trivance. p. 1689 Howrable Oscar Mausy - Page 2 (~'~-368) Application of these provfsioua depeuds upon the physical characteristics of the prtuticular object or device ia question. See Attorney General Opiafaas MI-168 (1980); E-1153 (1978); H-940 v77). Syatech PAT-2000 computer tennluals are kucwu as "transaction processing equipment." Tt.e technical information submitted to us shows that they record transaction Information and distribute tickets. The PAT-2000 is capable of dispeusing a wide range of products, such as airline tickets, euterta:iumeut tickets, and money orders. It is similar in function to the automatic teller machines which are mu in use across the state. Neu,ertheless, many of the PAT-2000 termiuals 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 uo data base for lottery tickets, however, the tickets csnnot actually be dispensed until it is connected to the main computer in New York. The statutory defiultiw of "gambling device" requires, among other things, proof that the award of a th%ug of value by the device be "determined by chance, even though accompanied by some skill." Peual Code 147.01(3); Attorney General Opiufous ~~-168 (1980); E-1153, (1978). Thus. even if ths PAT-2000 wasdesigned specifically for a purpose, such as a lottery,, which would copstltute au offense iu Texae. the offenses described in subsectious (a) aud (b) of sectlou 47.06 require proof that the machlue in question is itself a "gambling dcvicee or subassembly of a "gambling device" withiu the mesuiag of eection 47*01(3). See Attomey General Opinion MW-168 (1980). - The foregoing descrlptioa of the PAT-2000 demoustrates that its sole fuactloa is to dispenee~tickats. Ooze the temfual is connected with the rain computer.fu New York,~ .the tickets dispensed by the PAT-2000 will have state lottery numbers ou them. The element of chauce, however, is added :ln au eatlrely separate process and is uot au asseutlal element-of the product at issue. The element of chance occurs %u the lotteig drtariag. ticket. not in the transfer of a lottery Although the ac=i :sale ore possession of lottery tickets in Texas is au offeuse. see Paaal Code 4547.03(a)(S), 47.07(a). we deal here cmly tith the Gov question of whether the PAT-2000 ‘is a "gsmblbg device" per se. Cousequeutly. based 01, .the information about the PAT-2000 sub- mitted in couuectiou with :rour opinion request, we conclude that the .esseatial element of chaacc: is not present in the PAT-2000 termfual. We uote that'although the elameut of chance may be temporarily removed by "disabliug" a device, this will "gambling device." uot prevent it from being a is not, however, See Attmney General Opinion E-940 (1977). This re&t to the case at hand because the PAT-2000 contains PO element of chance aud~need uot be "disabled." We do.uot believe that ,the legislature intended to include within "gaubliug device," tickets. a termlaal which IS capable only of dispensing The legislature yintended section 47.01(3) to reach devices p. 1690 . . Douorable Oscar Mausy - Page 3 (JM-368) such as slot pachiues aud roulette vheels. See Practice Comeutary to section 47.01 (suggest* that a "sachauical~ontrivauce" may also be required by the deff.nitf.on), In light of this couclusion, ve do not reach your second question of whether the void-for-vzgueness doctrine prevents application of section 47.01(3) aud subsec:tious (a) and (b) of section 47.06 to the PAY-2000 terminal. SUMMARY A "gambling device," as defined in section 47.01(3) in coujrmctlon with subsections (a) aud (b) of section 4,7.06~, does not apply to the Syntech PAY-ZOOO,, a ticket-vending terminal uhlch awrely dispenses tickets. TFz device lacks the eleawxtt of chance essential to a "gambling device" uuder section 47.01(3). JIM WATTOX Attorney General of Texas TCMGNNEN First Assistant Attorney General DAVID B. XICDAXDS Executive Assistant Attonwy General RCBXXYCSAY Special Assistant Attomey General RICX GILPIN Chairman, Opinion Cosdttec: Prepared by Jennifer luggs Assistant Attorney General APPROVED: OP7.DIONCOMMITl'gE Rick Gilpin. Chairman Coliu Carl Susan Garrison Tony Guillory Jim Moelliuger Jennifer Xiggs Nancy Sutton Sareh Woelk p. 1691