| Let there be no question, illegal gambling is spreading in Texas because of weak enforcement and legal manipulation. In fact, the dangers of illegal gambling have been recognized in Texas since before our founding fathers wrote the Constitution in 1845. The Republic of Texas (1836-1845) enacted criminal laws prohibit certain gambling activities, and after joining the United States, the Texas Legislature passed laws prohibiting gaming tables, Faro banks, card games for money, and betting establishments. The Texas Constitution of 1876 in Article III, Section 47 states, “The Legislature shall pass laws prohibiting lotteries and gift enterprises in this State.” This provision required the legislature to outlaw lotteries. Even then, lotteries were widely viewed as corrupt and exploitative. Today, despite clear constitutional limits, illegal gambling machines are spreading across Texas under the false label of “skill games,” and inconsistent enforcement threatens the rule of law.
In 1991, the Texas Legislature, with a promise to fund public education, put the issue before the people on a constitutional ballot to amend the Texas Constitution to create a state lottery and allow bingo. Blinded by the vision of a new revenue (tax) stream for public education and the potential to “get rich quick,” voters passed the measure by 65 percent!
Today, specific constitutionally approved raffles, the state-approved lottery, and bingo (operated as a non-profit for charity) are the only legal forms of gambling in Texas. But you would never guess that, considering the proliferation of gaming (gambling) machines cleverly disguised as “games of skill” that are in local convenience stores, truck stops, and gaming rooms.
Let there be no mistake. The statute is not vague; the confusion caused by trying to legislatively separate “Chuckie Cheese” games from illegal gambling machines has led some to claim their games require skill, not chance, and for that reason, they are incorrectly being labeled as “legal.” The Legislature included what has come to be known as the “fuzzy animal” exception to allow for the type of prizes found in arcades. For example, it is not gambling if the prize is non-cash and valued at less than five dollars.
However, there are no limits to the hoops an illicit enterprise, with the blessing of local officials, will go through to pervert the law when the financial incentive is high enough. The statute is clear, and the court cases have confirmed (all the way to the Texas Supreme Court) that eight-liners are illegal gambling machines[1]. In fact, even the “fuzzy animal” exception has been declared unconstitutional, because when the Constitution says all gambling is illegal, it actually means all gambling is illegal, even if you are not doing it for profit. The Legislature cannot make, and has not made, an exception for something it is required to prohibit.
Nowadays, businesses that host “eight-liner” type machines falsely argue that their games are “games of skill,” and “games of skill” are legal under Texas law. However, “games of skill” must be 100-percent skill-based. If there is any amount of chance in the game, it is an illegal “gambling device,” which is clearly defined in Texas Penal Code § 47.01 (4):
“Gambling device” means any electronic, electromechanical, or mechanical contrivance … that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance.” [Emphasis added.]
Skill-based games require players to do things competently, and the outcome is determined entirely by a participant’s knowledge, physical ability, and judgment. Skill-based games must remove all randomness from outcomes. There is no randomizing element, i.e., no shuffle, spin, hidden algorithm, dice, etc. For example, true skill-based games might require the player to throw a ball into a hoop or hit a ball into a hole to win. The performance depends on player skill of execution, not randomization. Again, to be a legitimate “game of skill,” it must be 100-percent skill-based. And, simply labeling a game as “skill-based” does not make it so. Just like a “male” cannot be a “female” just because he labels himself “female.”
For casino games, you just simply push a button, which takes no skill at all. Some crafty eight-liner manufacturers have tried to incorporate skill elements into their games, but the law is very clear on this point, too. If there is any element of chance in any game, which would include “games of skill,” then it is a gambling device and that makes the device and all games on it illegal. As noted above, the law is very specific on what constitutes a “gaming device.”
The local prosecutors who sincerely want to keep illegal gambling devices out of their jurisdiction and who have gone after gambling in their counties have been successful in taking the issue all the way through the process. Yet some local prosecutors still refuse to enforce the law, claiming that a lower court ruling has prevented them from moving forward with prosecution. This is simply not true. It is just an excuse not to do their jobs. It appears that the will to prosecute is more of a burden than any vagueness or ambiguity they claim exists in the law.
Furthermore, a device often has multiple games. If any one game on that machine has any element of “chance,” then the “device” is illegal. Just having a game labeled “skill” on a gambling machine does not magically make the machine legal. Thus, it is illegal to play any game on an “illegal machine,” even those labeled “skill” games.
Unfortunately, we have counties in Texas that are failing to do their job in protecting the public from the “game rooms” that are replete with illegal “gambling devices.”
Those who understand the law, as it is currently written, know that new legislation is not needed to shut down any facility offering devices with any game that includes “any” element of chance. All it takes is the will to do it.
Legislative Action
However, during the next legislative session, we will continue to address the creeping scourge of gambling, including a review of the Texas Lottery and its performance since being moved from the corrupt Lottery Commission and put in the hands of Texas Department of Licensing and Regulation. We will address ways to enhance enforcement of penalties for gaming machines, including limiting the issuance of occupational licenses in areas where gaming machines are permitted. And, most importantly, we will also be looking at how to prohibit casinos and sports betting from expanding in Texas. Reports have predicted more than $1.76 billion in bets on the Super Bowl game alone.
Yes, sports betting is illegal in Texas even if you are able to do it on your phone.
Finally, my office is working to learn more about the challenges casino games have presented for local authorities. We would like to hear from local governments about the statutory changes they believe the Legislature should enact to ensure they have the essential tools to fight the proliferation of casino games posing as “skill” games in their communities.
If the executive, judicial, legislative branches and local governments work together as intended, we can win this fight. Please contact your local district attorney when you see fake “skill” games in your community and include me in the email (bob.hall@senate.texas.gov). I am committed to this fight, and I want to hear from anyone who wants to join me. |
