Texas Penal Code 47.06 – Possession of Gambling Device, Equipment, or Paraphernalia

WHAT IS POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

The Texas law against possession of a gambling device, gambling equipment, or paraphernalia prohibits manufacturing, transferring, owning, or possessing gambling devices, any altered gambling equipment, or books, instruments, or apparati to further gambling.

• 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 THE POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA LAW IN TEXAS?

Tex. Penal Code § 47.06. POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA.

(a) A person commits an offense if, with the intent to further gambling, 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.

(c) A person commits an offense if, with the intent to further gambling, the person knowingly owns, manufactures, transfers commercially, or possesses gambling paraphernalia.

(d) It is a defense to prosecution under Subsections (a) and (c) that:

(1) the device, equipment, or paraphernalia is used for or is intended for use in gambling that is to occur entirely in a private place;

(2) a person involved in the gambling does not receive any economic benefit other than personal winnings; and

(3) except for the advantage of skill or luck, the chance of winning is the same for all participants.

(e) An offense under this section is a Class A misdemeanor.

(f) It is a defense to prosecution under Subsection (a) or (c) that the person owned, manufactured, transferred, or possessed the gambling device, equipment, or paraphernalia for the sole purpose of shipping it to another jurisdiction where the possession or use of the device, equipment, or paraphernalia was legal.

(g) A district or county attorney is not required to have a search warrant or subpoena to inspect a gambling device or gambling equipment or paraphernalia on an ocean-going vessel that enters the territorial waters of this state to call at a port in this state.

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 POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

Possession of a gambling device, equipment, or paraphernalia is a Class A misdemeanor, punishable by up to one year in county jail.

WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

The punishment range for possessing a gambling device, gambling equipment, or paraphernalia, a Class A misdemeanor, is up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

A person charged with possession of a gambling device, equipment, or paraphernalia 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 POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

The statute authorizes a defense available in most gambling prosecutions: that the device, equipment, or paraphernalia was used for or intended to be used in a private place, no one received economic benefits other than personal winnings, and the chance of winning was the same for all participants.

Another defense to possession of a gambling device, equipment, or paraphernalia may be raised if the accused shows the possession was for the sole purpose of shipping the prohibited item to another jurisdiction where gambling is legal.

• 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 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 STATUTE OF LIMITATIONS FOR POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS?

The limitation period for possessing a gambling device, gambling equipment, or paraphernalia, a Class A misdemeanor, is two years.

POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA IN TEXAS

Texas law punishes any activity in furtherance of illegal gambling, including possessing, manufacturing, owning, or transferring commercially any illegal gambling devices, equipment, and bookmaking, wagering, or other gambling paraphernalia.

TEXAS POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA COURT CASES

The case law regarding possession of a gambling device, equipment, or paraphernalia 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.