Texas Penal Code 47.02 – Gambling

WHAT IS GAMBLING IN TEXAS?

The Texas law against gambling prohibits betting on: (1) a political nomination, appointment, or election, or the degree of success of an appointee, nominee, or candidate; (2) a game or contest, or a participant’s performance in a game or contest; and (3) a game played with cards, dice, balls, or any other gambling device.

• When is a bet illegal in Texas? Texas Penal Code Section 47.01 defines a “bet” for purposes of illegal gambling as an agreement to win or lose something of value solely or partially by chance.

• What is an “eight liner” and is it legal in Texas? Eight liner machines are electronic gaming machines resembling slot machines. They are called “eight liners” because a player has eight chances to win by matching three icons down, across, or two diagonally.Eight liners that fit within the fuzzy animal exclusion in Texas Penal Code Section 47.01(4)(B) are legal, but eight liners that reward a player with cash or something redeemable for cash are illegal gambling devices. Texas courts determine the legality of the machines on a case-by-case basis, but anything rewarding a player with something other than a useless carnival-style trinket will likely be deemed illegal.

  In State v. $1,760.00 in U.S. Currency, the eight liners at issue accepted cash that the machines converted into points for play. The machine dispensed a ticket for every 500 points won, which could be used to redeem store merchandise under $5, or receive replay credits. The Texas Supreme Court held the eight liners did not fall within the fuzzy animal exclusion because the right of replay was not necessarily immediate, and the distributed tickets were not redeemable exclusively for non-cash merchandise prizes, toys, or novelties.

WHAT IS THE GAMBLING LAW IN TEXAS?

Tex. Penal Code § 47.02. GAMBLING PROMOTION.

(a) A person commits an offense if he:

(1) makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest;

(2) makes a bet on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or

(3) plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.

(b) It is a defense to prosecution under this section that:

(1) the actor engaged in gambling in a private place;

(2) no person received any economic benefit other than personal winnings; and

(3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

(c) It is a defense to prosecution under this section that the actor reasonably believed that the conduct:

(1) was permitted under Chapter 2001, Occupations Code;

(2) was permitted under Chapter 2002, Occupations Code;

(3) was permitted under Chapter 2004, Occupations Code;

(4) consisted entirely of participation in the state lottery authorized by the State Lottery Act (Chapter 466, Government Code);

(5) was permitted under Subtitle A-1, Title 13, Occupations Code (Texas Racing Act); or

(6) consisted entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the Parks and Wildlife Department.

(d) An offense under this section is a Class C misdemeanor.

(e) 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 excluded from the definition of “gambling device” under Section 47.01(4)(B).

Tex. Penal Code § 47.09. OTHER DEFENSES.

(a) It is a defense to prosecution under this chapter that the conduct:

(1) was authorized under:

(A) Chapter 2001, Occupations Code;

(B) Chapter 2002, Occupations Code;

(C) Chapter 2004, Occupations Code;

(D) Subtitle A-1, Title 13, Occupations Code (Texas Racing Act); or

(E) Chapter 280, Finance Code;

(2) consisted entirely of participation in the state lottery authorized by Chapter 466, Government Code; or

(3) was a necessary incident to the operation of the state lottery and was directly or indirectly authorized by:

(A) Chapter 466, Government Code;

(B) the lottery division of the Texas Lottery Commission;

(C) the Texas Lottery Commission; or

(D) the director of the lottery division of the Texas Lottery Commission.

(b) It is an affirmative defense to prosecution under Sections 47.04, 47.06(a), and 47.06(c) that the gambling device, equipment, or paraphernalia is aboard an ocean-going vessel that enters the territorial waters of this state to call at a port in this state if:

(1) before the vessel enters the territorial waters of this state, the district attorney or, if there is no district attorney, the county attorney for the county in which the port is located receives notice of the existence of the device, equipment, or paraphernalia on board the vessel and of the anticipated dates on which the vessel will enter and leave the territorial waters of this state;

(2) at all times while the vessel is in the territorial waters of this state all devices, equipment, or paraphernalia are disabled, electronically or by another method, from a remote and secured area of the vessel in a manner that allows only the master or crew of the vessel to remove any disabling device;

(3) at all times while the vessel is in the territorial waters of this state any disabling device is not removed except for the purposes of inspecting or repairing the device, equipment, or paraphernalia; and

(4) the device, equipment, or paraphernalia is not used for gambling or other gaming purposes while the vessel is in the territorial waters of this state.

WHAT IS THE PENALTY CLASS FOR GAMBLING IN TEXAS?

Gambling is a Class C misdemeanor, punishable by a maximum fine of $500.

WHAT IS THE PUNISHMENT RANGE FOR GAMBLING IN TEXAS?

The punishment range for gambling, a Class C misdemeanor, is a maximum $500 fine.

WHAT ARE THE PENALTIES FOR GAMBLING IN TEXAS?

A person charged with gambling will not be required to complete conditions of probation after a conviction, because a conviction is only punishable by a fine for a Class C misdemeanor. To avoid a conviction, a person charged with Class C misdemeanor gambling may be placed on deferred adjudication for a period not to exceed 180 days.

WHAT ARE THE DEFENSES TO GAMBLING IN TEXAS?

The statute provides several defenses and exceptions to gambling.

• Is betting on horse and dog races legal in Texas? Yes. The Texas Racing Act regulates horse racing and greyhound racing, and pari-mutuel wagering on such races. This is a legal form of gambling in Texas.

• Is playing poker legal in Texas? Texas Hold ‘Em tournaments in a private place, or during which participants do not risk anything of value, are not illegal. But a poker tournament at a bar, for example, during which participants risk money or any other thing of value for the opportunity to win a prize is illegal gambling. See Op. Tex. Att’y Gen. GA-335.

• Is fantasy football and sports betting legal in Texas? Fantasy football fits within the legal definition of gambling. Paid fantasy leagues consist of wagering on the performance of a participant in a game or contest, within the meaning of a bet, given the element of chance is involved.However, the defense in Penal Code Section 47.02(b) applies because, in most fantasy leagues, the gambling was done in a private place, no person received more than personal winnings, and the risk of losing and the chance of winning were the same for all participants. See Op. Tex. Att’y Gen. KP-0057 (2016).

• Are raffles illegal gambling in Texas? Charitable raffles and professional sports team charitable foundation raffles are legal in Texas. Texas Penal Code Section 47.02(c)(2) and (c)(3) permit defenses to a gambling charge if the person reasonably believed his conduct was permitted as a charitable raffle or professional sports team charitable foundation raffle under Chapters 2002 and 2004 of the Texas Occupations Code.

• Are machines for tickets and prizes illegal gambling in Texas? Generally, no. The “fuzzy-animal exclusion” permits family entertainment centers such as Dave & Busters, Chuck E. Cheese, and Main Event to operate machines in Texas. Texas Penal Code Section 47.01(4)(B) explains that a machine is not an illegal “gambling device” if: (1) it is used solely for bona fide amusement purposes, (2) it rewards only non-cash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, and (3) the reward for a single play of the game or device is worth no more than the lesser of $5 or ten times the cost of the single play.

• Is gambling for charity legal in Texas? Gambling for a charitable purpose is legal in most circumstances. Texas Occupations Code Section 2002.002 defines a “charitable purpose” as:

(1) benefitting needy or deserving persons in this state, indefinite in number, by:

(a) enhancing their opportunities for religious or educational advancement;

(b) relieving them from disease, suffering, or distress;

(c) contributing to their physical well-being;

(d) assisting them in establishing themselves in life as worthy and useful citizens; or

(e) increasing their comprehension of and devotion to the principles on which this nation was founded and enhancing their loyalty to their government;

(2) initiating, performing, or fostering worthy public works in this state; or

(3) enabling or furthering the erection or maintenance of public structures in this state.

• Can a person legally play bingo in Texas? Yes. Playing bingo in Texas is legal under the and Section 47.02(c)(1) permits a person to raise a defense to a gambling charge if the person reasonably believed his conduct was legal under Chapter 2001 of the Texas Occupations Code.

• Is playing the lottery legal in Texas? Yes, under the Texas State Lottery Act, which regulates the lottery in Texas. Article III section 47(a) of the Texas Constitution requires the Legislature to pass laws prohibiting lotteries and gift enterprises, subject to certain exceptions. A “lottery” is any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win anything of value, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or some other game.

• Is gambling legal on boats in Texas? Texas Penal Code Section 47.09 authorizes an affirmative defense to keeping a gambling place and possession of gambling devices, equipment, and paraphernalia if the conduct is committed on a boat docked in Texas waters, but only authorizes gambling once the boat enters federal waters.

WHAT IS THE STATUTE OF LIMITATIONS FOR GAMBLING IN TEXAS?

The statute of limitations for gambling, a Class A misdemeanor, is two years.

GAMBLING IN TEXAS

Texas law prohibits gambling, or betting on games, contests, political elections, nominations, or appointments, and playing games and placing bets for money on dice, cards, balls, or any other gambling device. The Texas law against gambling originates with the Texas Constitution, but the Legislature has created exceptions and regulations authorizing certain forms of gambling.

TEXAS GAMBLING COURT CASES

The case law regarding gambling in Texas shows further analysis of the fuzzy animal exclusion, and whether eight liners qualify.

• In City of Fort Worth v. Rylie, Fort Worth enacted city ordinances with specific zoning requirements for eight-liner game rooms. The operators of the game rooms sued the City. They acknowledged their eight-liners were gambling devices, but asserted they fell within the fuzzy animal exclusion authorized by Section 47.01(4)(B). The appellate court held the eight-liners at issue were illegal gambling devices, because they fall within the definition of lotteries.