Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1940
Status
Published
On the bench
Gerald Mann
Cited by
0 cases
Authority
More cited than 3.6%

The opinion

Hon. Homer G,arrison, Jr., Director

Department of Public Safety

C,amp Mabry

Austin, Texas

Dear Sir:

Opinion No. 0- 1947

Re: Is the Department of Public Safety

authorized to seize punch boards,

tip sheets, and/or slot machines

from the warehouse or di.strib$ting

point-of a person or persons in the

business of distributing same?

We have re.c.&iv& your letter requesting the opinion of this department

upon the above stated question.

Your letter reads as follows:

“Please advise me whether~ or not, in your opinion, we will

be authorized to seize punch boards, tip sheets, and/or slot ma-

chines from the warehouse or distributing point of a person, or I

persons, in the business of distributing the aforementioned devices.

“The aforementioned devices, of course, are not being used

for gambling purposes in the warehouses, but are bking held to be

distributed for illegal purposes.”

We presume that you are interested in ascertaining whether or not

punch boards, tip sheets, and/or slot machines must be exhibited for the pur-

pose of gaming before they are subject to seizure, or may they be seized from

the warehouse or distributing point of a person, or persons, in the business of

distributing same, before they are actually distributed and exhibited for ille-

gal purposes.

Article 630 of the Penal Code of Texas provides:

“If any person shall knowingly permit any gaming para-

phernalia, table, or device or equipment of a gaming house, of

any character whatever, to remain in his p+ession or on premises

under his contr~ol or of which he is owner and to be used for gam-

ing pur,po.ses,: he shall be impii&oned in jail not less than thirty

days nor more than one year?’

. .

Hon. Homer Garrison, Jr., Page 2 (Opinion No. :0;.1,947)

Article 632 of the Penal Code of Texas pr,ovides:

“Whenever it comes to the knowledge of any sheriff or

other peace officer, by affidavit of a reputable citizen, or

otherwise, that any provision of the preceding articles of this

chapter is being violated, such officer shall immediately avail

himself of all lawful means to suppress such violation; and he

shall be authorized, by any s,earch warrant that is issued by

virtue of this law, to enter any house, room or place to be

searched, using such force as may be necessary to accom-

plish such purpose.”

Article 636, of the Penal Code, provides:

“It shall be the duty of every sheriff, or other peace

officer by virtue of the warrant au,thorieed by this chapter

to seize and take into his possession all gaming tables,

devices and other equipments or paraphernalia of gambling

houses, the existence of which has come to his knowledge

and to immediately file with tie justtce of the peace, county

judge, or district judge, a written list of property seiz,ed

designating the place where same was seized, and the owner

of same, or the person from whom possession was taken.

Thereupon said justice of the peace, county or district judge

shall note the same upon his docket and issue, or cause the

clerk of the court to issue a written notice to the owner or

person in whose possession the articles seized were fourid,

commanding him to appear at a designated time, not earlier

thap five days from the service of s,uch notice, and show

cause why such articles should not be destroyed. . . .”

Article 637 of the Penal Code provides:

“If upon a hearing of the matter referred to in the

preceding article, the justice of the peace, county judge or

district judge, before whom the cans? is pending shall deter-

mlne that the property seized is a gaming table or bank or 1s

used as equipment or paraphernalia for a gambling house,

and was being used for gaming pu,rposes, he shall order same

to be destroyed, but any part of same may, by order of the

court be held as evidence to be used in any case until the case

is finally disposed of. -Property not of that character or not

so used shall be ordered returned to the person entitled to

possession of the same. The officer, within not less than

fifteen nor more than thirty days from the entry of said

ordee shall destroy all property the destruction of which

has b&en ordered by the court, unless the owner, lessee or

person entitled to possession under this law, shall, before

the destruction of said property, flle suit to’recover same.

Hon. Homer Garrison, Jr., Page 3 (Opinion No. 0 - 1947)

“Sec. 2. If upon a hearing of the matter referred to in

Article 636, Penal Code of Texas (1925) the justice of the

peace, county judge or district judge before whom the cause

is pending shall determine that the property seized, or any

part thereof, is not gambling paraphernalia per se, but that

the same or any part thereof was used as equipment or

paraphernalia for a gambling house and was being used for

gaming purposes and that said property is capable of being

used for some legal purposes, he may, in his discretion,

by order of the court declare the same confiscated and cause

the same to be delivered to the State of Texas, or any politi-

cal subdivision thereof or to any State institution to be kept

by it for its own use and benefits.

“The officer shall show by his return the disposition

of the property made by him which shall be in compliance

with the orders of the court. Acts 1907, p. 110; Acts 1935,

44th Leg., p. 490, Ch. 203, i 1.”

In the case of Scott v. State, 95 SW 2d, 140 (Grim. App.) Judge

Lattimore, in construing Article 630 of the Penal Code, supra, wrote:

“Such said A.rticle 630, supra, seems aimed at him

who permits gaming tables, etc., to remain on his premises,

or on premises of which he is owner, but which may not

actually be in use as such gaming devices, tables, etc., we

have upheld misdemeanor convictions in cases of prosecu-

tions under said article, charging that the accused permitted

these tables, devices, etc., to remain on his premlses. See

Abraham v. State, 118 Tex. Grim. Rep. 136, 39 SW 2d 42;

France v. State, (Tex. Grim. App.) 39 SW 2d 43. It seems

clear to us that said Article 630 would and could, have no

application to any state of facts from which it appears that

the paraphernalia, devices, tables, etc., mentioned or in-

cluded in said article, were being made use of at such place

for playing or exhibiting any game for which such devices,

tables, etc., were usable as gambling tables and devices,,

and upon which money or other thing of value was being bet,

wagered or staked.”

The above case was followe,d in the case of Graham v. State,

125 SW 2d 562, decided by the court of criminal appeals of Texas on

January 25, 1939.

A slot machine 1s specifically named as a gambling device in

Article 619 of the Penal Code, and although tip sheets and punch boards

are not specifically mentioned in the Penal Code, the case of Starnes v.

State, 21 Tex. 693, holds, in effect, that it is difficult to imagine any

species of a table or a bank or gaming device that would not be included

Hon. Homer Garrison, Jr., Page 4 (Opinion No. O-1947)

in the clauses of the Code.

Whether or not the device was designed for gaming purposes

is immaterial. It is the game or character of play on it that determines

its status. Estes v. State, 10 Tex. 300; Starnes v. State, 21 Tex. 693;

Chappel v. State, 27 Crim. Rep. 310; Bird v. State, 148 SW 738; Mills

v. Browning, 59 SW 2d 219.

If the machine or article is a gambling device, or equipment

or paraphernalia of any gambling house, It 1s to be destroyed. A gamb-

ling device may be one which.is made primarily and principally for

gambling, such ,as a roulette wheel, and this primary and principal pur-

pose being established, no further proof of its actual use is required:

or it may be a device which is useful for service to law abiding society,

in which event the article itself must be shown to be actually used in

gambling to constitute it condemnable. Mills v. Browning, 58 SW 2d

219.

Article 1, Section 9 of the Constitution of Texas provides:

“The people shall be secure in their persons, houses,

papers and possessions from all unreasonable seizures and

searches, and no warrant to search any place, or to sdizer~

any person or thing, shall issue without describing them as

near as may be, nor without probable cause, supported by

oath or information.“

For the purpose of giving effect to Article 1, Section%9, of the

Constitution of Texas, the Legislature enacted Article 4, Code of Criminal

Procedure, the language of which is identical with Article 1, Section 9,

supra, and Article 4a, Code of Criminal Procedure, which reads as follows:

“It shall be unlawful for any person or peace officer

or State Ranger to search the private residence, actual

place of ha; ‘:.ti’%n, place of business, person or personal

posessions of any person, without having first obtained a

s.earch warrant as required by law.”

The Constitution and statutes do not prohibit every character d

search and seizure without a warrant, but only prohibits unr-e,asonable

searches and seizures. It was held in Moore v. Adams, 91.SW 2d 447,

that the sheriff of Potter County had a right to seize slot machines with-

out a warrant, so long as the sheriff acted upon probable cause, and did

not have to commit a trespass to galn entrance to the premises from

which the slot machines were se.ized. In this case, the machines were

operated for gaiming purposes in pu61ic palaces, to which the entire pub-

lic, including the sheriff and his deputies, had access,.

Under the state of facts as outlined in your letter, the gambllng

HonHomer Garrison, Jr., Page 5 (Opinion No. O-1947)

devices or paraphernalia, are ,stored in a warehouse, and not in a public

place to which the entire publi,c, including members of the Department

of Public Safety, have access.

In view of the foregoing statutes and authorities, you are

respectfully advised that it is, the .opinion of this department that the

Department of Public Safe’ty is authorized.to seize under a search

war*& punch .boards. tip sheets and/or slot machines from the ware-

house or distributing point of a person or persons in the busine,ss of

distributing same. However, members of the’Department of Public

Safety are authorized to seize slot machines, or any other gambling

device which is a gambling device per se, at any place where the same

may be found, when the officers are at said place by lawful means.

Very truly yours

ATTORNEY GENERAL .OF TEXAS

By /s/ D. Burle Daviss

D. Burle Davis6

‘Assistant

DBD:AW:ps

APPROVED APR 25, 1940

/so/ Gerald C. Mann

ATTGRNEYGENERALOF TEXAS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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