Texas Penal Code 47.03 – Gambling Promotion
WHAT IS GAMBLING PROMOTION IN TEXAS?
The Texas law against gambling promotion prohibits bookmaking, holding bets, selling chances on an outcome of a game, contest, or political nomination, election, or appointment, promoting a lottery, selling participation in a lottery, or otherwise operating or participating in the earnings of a gambling place.
- What is a game room in Texas? A game room is a casino-like business with six or more eight liners. Texas Local Government Code Section 234.131 defines a “game room” as a for-profit business located in a building or place that contains six or more “amusement redemption machines,” or electronic or mechanical contrivances that, for consideration, afford a player the opportunity to obtain a prize or thing of value, the award of which is determined solely or partially by chance, regardless of whether it is solely for bona fide amusement purposes.Game rooms are not illegal per se, and are heavily regulated by the State and local governments. If a game room holds illegal eight liners rather than legal ones, the owners and operators of the game room may be charged with a myriad of gambling offenses.
- 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 PROMOTION LAW IN TEXAS?
Tex. Penal Code § 47.03. GAMBLING PROMOTION.
(a) A person commits an offense if he intentionally or knowingly does any of the following acts:
(1) operates or participates in the earnings of a gambling place;
(2) engages in bookmaking;
(3) for gain, becomes a custodian of anything of value bet or offered to be bet;
(4) sells chances on the partial or final result of or on the margin of victory in any game or contest or on the performance of any participant in any game or contest or on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or
(5) for gain, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery.
(b) An offense under this section is a Class A misdemeanor.
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;
(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 PROMOTION IN TEXAS?
Gambling promotion is a Class A misdemeanor, punishable by up to one year in county jail.
WHAT IS THE PUNISHMENT RANGE FOR GAMBLING PROMOTION IN TEXAS?
The punishment range for gambling promotion, a Class A misdemeanor, is up to one year in jail, and a maximum $4,000 fine.
WHAT ARE THE PENALTIES FOR GAMBLING PROMOTION IN TEXAS?
A person charged with gambling promotion may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years.
WHAT ARE THE DEFENSES TO GAMBLING PROMOTION IN TEXAS?
The statute does not authorize specific defenses to gambling promotion. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.
- 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 other sports gambling illegal 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 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 PROMOTION IN TEXAS?
The limitation period for gambling promotion, a Class A misdemeanor, is two years.
GAMBLING PROMOTION IN TEXAS
Texas law punishes any activity in furtherance of illegal gambling, including selling opportunities to bet or chances to win, bookmaking, accepting and holding bets, participating in the profits, and other illegal activity.
TEXAS GAMBLING PROMOTION COURT CASES
The case law regarding gambling promotion in Texas shows the statute’s application.
- In U.S. v. Davis, the defendants owned internet cafes in which customers could purchase entries in a software-run sweepstakes, and winners received cash prizes. The winning entries were revealed by playing casino-like computer games, and their purchased internet time was not subtracted from their time of play. They also had the option to continue playing the computer games by purchasing more entries in the sweepstakes, or to cash out with their prize amount.The defendants were convicted of gambling promotion, keeping a gambling place, and possession of a gambling device, equipment, or paraphernalia, and the appellate court affirmed. Despite the elaborate attempt to work around the language of the law, purchasing internet time was mere subterfuge for illegal gambling.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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