Texas Penal Code 47.04 – Keeping a Gambling Place

WHAT IS KEEPING A GAMBLING PLACE IN TEXAS?

The Texas law against keeping a gambling place prohibits using or permitting another to use any property the person owns or controls for making or settling bets, bookmaking, or the conducting of a lottery or playing of gambling devices.

• 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 KEEPING A GAMBLING PLACE LAW IN TEXAS?

Tex. Penal Code § 47.04. KEEPING A GAMBLING PLACE.

(a) A person commits an offense if he knowingly uses or permits another to use as a gambling place any real estate, building, room, tent, vehicle, boat, or other property whatsoever owned by him or under his control, or rents or lets any such property with a view or expectation that it be so used.

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

(1) the gambling occurred 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) 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;

(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 KEEPING A GAMBLING PLACE IN TEXAS?

Keeping a gambling place is a Class A misdemeanor, punishable by up to one year in jail.

WHAT IS THE PUNISHMENT RANGE FOR KEEPING A GAMBLING PLACE IN TEXAS?

The punishment range for keeping a gambling place, a Class A misdemeanor, is up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR KEEPING A GAMBLING PLACE IN TEXAS?

A person charged with keeping a gambling place 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 KEEPING A GAMBLING PLACE IN TEXAS?

The statute authorizes an affirmative defense to a person charged with keeping a gambling place if: (1) the gambling occurred 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.

• 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.

• 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. However, 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 KEEPING A GAMBLING PLACE IN TEXAS?

The limitation period for keeping a gambling place, a Class A misdemeanor, is two years.

KEEPING A GAMBLING PLACE IN TEXAS

Texas law punishes using or permitting another to use property for the purpose of illegal gambling, or for any purpose in furtherance of illegal gambling.

TEXAS KEEPING A GAMBLING PLACE COURT CASES

The case law regarding keeping a gambling place 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.