Could the Texas Legislature legalize slot machines without another constitutional amendment, either privately or through the state lottery?

TX AG Opinion DM-0302: Could Texas legalize slot machines without amending its constitution?

Plain-English summary

The Texas Attorney General concluded that the Legislature could not authorize slot machines without a constitutional amendment. For this opinion, a slot machine meant a device in which the player paid money for a chance to receive more money, with winnings based entirely on chance rather than skill, judgment, or knowledge. That device contained the three elements of a lottery: prize, chance, and consideration.

Article III, section 47 of the Texas Constitution required the Legislature to prohibit lotteries except for specifically authorized categories. Courts had construed the lottery prohibition broadly, and the Attorney General concluded that lawmakers could not avoid it by redefining "lottery" in the Penal Code to exclude a device that met the constitutional meaning.

The 1991 amendment authorizing a state lottery did not change the result. The ballot proposition asked voters to approve "a state lottery," and the opinion found that contemporary descriptions concerned lottery tickets, drawings, scratch-off tickets, and lotto games, not slot machines. It concluded that voters had not authorized the state or its contractors to operate slot machines.

The Legislature also could not legalize private slot machines on riverboats or at dockside casinos merely by changing the Penal Code definition of "bet." Repealing an implementing penal prohibition would conflict with the constitutional command to pass laws prohibiting lotteries.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1994)

Texas legislators: A statute alone could not authorize chance-only slot machines. The opinion required another constitutional amendment for that change.

State lottery officials and contractors: The 1991 lottery amendment did not extend to adding slot machines to state lottery operations.

Private casino and riverboat proponents: Changing the statutory definition of a bet could not overcome the constitutional lottery prohibition.

Courts and prosecutors: The opinion distinguished gambling involving a meaningful element of skill from a device whose award was determined entirely by chance.

Common questions

Why did the opinion classify a slot machine as a lottery?
The device required consideration, offered a prize, and awarded it by chance. The opinion treated chance as the essential element and found no player skill that could change the outcome.

Did the 1991 state-lottery amendment authorize casino games?
No. The opinion read the ballot proposition according to its ordinary meaning and found no evidence that voters understood "a state lottery" to include slot machines or casino gaming.

Could the state contract with a private company to operate slot machines?
No. The amendment permitted contractors to operate lotteries on the state's behalf, but the opinion concluded that the authorized category did not include slot machines.

Could lawmakers redefine "lottery" or "bet" to exclude slot machines?
No. A statutory definition could not remove from the constitutional prohibition a game that met the constitutional meaning of a lottery.

Did the opinion address every machine called a slot machine?
No. It expressly declined to determine whether every particular device met the statutory definition of a gambling device. It answered the question using the described chance-only, value-paying machine.

Background and constitutional framework

Texas constitutions had prohibited lotteries since 1845. The 1876 constitution directed the Legislature to prohibit lotteries, gift enterprises, and evasions involving the lottery principle. Texas decisions identified prize, chance, and consideration as the elements of a lottery and treated chance as the defining element.

In 1971, lawmakers attempted to exempt certain charitable lotteries from prosecution. Tussey v. State held that the exemption violated article III, section 47. Voters later approved constitutional exceptions for charitable bingo, charitable raffles, and a state lottery.

The opinion read the state-lottery exception narrowly. The ballot language was plain, and the opinion also applied the rule of ejusdem generis: the state-lottery exception followed narrow exceptions for charitable bingo and raffles, so "lotteries" in subsection (e) could not take the broadest meaning used in the general prohibition and swallow the rule.

Attorney General Opinion JM-1267 had distinguished games dominated by chance from games involving skill or judgment. DM-0302 concluded that the described slot machine fell on the chance-only side of that line and therefore constituted a lottery as a matter of law.

Citations

Constitutional provisions and statutes:

• Tex. Const. art. III, § 47(a)-(e)
• Tex. Penal Code § 47.01(1), (6)
• Tex. Gov't Code § 466.002(3)
• Acts 1971, 62d Leg., ch. 922, § 1, at 2823
• S.J.R. 18, Acts 1979, 66th Leg., at 3221
• H.J.R. 32, § 1, Acts 1989, 71st Leg., at 6427
• H.J.R. 8, Acts 1991, 72d Leg., 1st C.S., at A-2

Cases:

• Prendergast v. State, 57 S.W. 850 (Tex. Crim. App. 1899)
• City of Wink v. Griffith Amusement Co., 100 S.W.2d 695 (Tex. 1936)
• Randle v. State, 42 Tex. 580 (Tex. 1875)
• Tussey v. State, 494 S.W.2d 866 (Tex. Crim. App. 1973)
• Sherwood & Roberts-Yakima, Inc. v. Clyde G. Leach, 409 P.2d 160 (Wash. 1965)
• Adams v. Antonio, 88 S.W.2d 503 (Tex. Civ. App.—Waco 1935, writ ref)
• Panas v. Texas Breeders & Racing Ass'n, 80 S.W.2d 1020 (Tex. Civ. App.—Galveston 1935, writ dism'd)
• Ginsberg v. Centennial Turf Club, Inc., 251 P.2d 926 (Colo. 1952)
• People ex rel. Lawrence v. Fallon, 46 N.E. 296 (N.Y. 1897)
• State v. Fry, 867 S.W.2d 398 (Tex. App.—Houston [14th Dist.] 1993, writ ref.)
• State v. Mendel, 871 S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.)

Related opinions:

• Tex. Att'y Gen. Ops. C-619 (1966); JM-1267 (1990)
• Ky. Att'y Gen. Op. No. 93-58 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0302
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0302.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas
DAN MORALES August 23, 1994

ATTORNEY GENERAL

Honorable John T. Montford Opinion No. DM-302
Chair
Finance Committee Re: Whether the legislature may, by
Texas State Senate statute, and in the absence of a
P.O. Box 12068 constitutional amendment, authorize the
Austin, Texas 78711 operation of slot machines within the state
of Texas; or, in the alternative, whether it
Honorable Senfronia Thompson may authorize the state to operate slot
Chair machines and to contract with one or
Committee on Judicial Affairs more entities that will operate the slot
Texas House of Representatives machines on behalf of the state (RQ-642,
P.O. Box 2910 ID# 23991)

Austin, Texas 78768-2910
Dear Senator Montford and Representative Thompson:

Senator Montford requests our opinion as to whether the legislature may, by
statute and in the absence of a constitutional amendment, authorize the operation of slot
machines within the state of Texas. If the answer to this question is “no,” Representative
Thompson asks whether, under the 1991 amendment to the Texas Constitution, the
legislature may authorize the state “to operate slot machines and to contract with one or
more entities that will operate the slot machines on behalf of the State.” We do not here
determine whether any particular device which might be labeled a “slot machine” actually
conforms to the statutory definition of “gambling device.” Rather, for purposes of this
opinion, we accept Senator Montford’s description of a “slot machine” as

a machine that runs electronically or mechanically and contains slots
into which the player deposits money in the form of currency, coins,
tokens, or a magnetic card, on the chance of receiving some amount
of money greater than that deposited.

Furthermore, we add the qualification that the machine records the credits won on each
play, and the credits are exchangeable for something of value. See State v. Mendel, 871
S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.).

In order to answer Senator Montford’s question, we must determine whether a
slot machine is a “lottery” within the meaning of article III, section 47 of the Texas
Constitution, which requires the legislature to “pass laws prohibiting lotteries and gift
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enterprises.” If slot machines fall into the category of “lotteries,” the legislature may not
authorize their operation without a constitutional amendment.

When the present Texas Constitution was adopted in 1876, it contained the
following provision regarding “lotteries”:

The Legislature shall pass laws prohibiting the establishment of
lotteries and gift enterprises in this State, as well as the sale of tickets
in lotteries, gift enterprises or other evasions involving the lottery
principle, established or existing in other States.!

Some of the briefs submitted to this office suggest that this provision, because it
distinguished between “lotteries,” “gift enterprises,” and “other evasions involving the
lottery principle,” means that the term “lottery” should be construed, for constitutional
purposes, very narrowly, and that in 1876, “lottery” could not have been intended to
proscribe slot machines since that device was not invented until 1895. At most, these
briefs argue, operation of a slot machine is an “evasion based on the lottery principle.”
When, in 1980, the “other evasions” language was deleted from article III, section 47,
these briefs contend that the constitutional proscription against slot machines was lifted.²

As early as 1899, however, the Court of Criminal Appeals held that operation of a
“slot machine,” as described therein,³ constituted a “lottery.” Prendergast v. State, 57
S.W. 850, 851 (Tex. Crim. App. 1899). Then, in 1936, the Texas Supreme Court
considered whether a “bank night” held weekly at a local theater was a “lottery” under

1 This general prohibition now appears as subsection (a) of article III, section 47. It reads:

(a) The Legislature shall pass laws prohibiting lotteries and gift enterprises
in this State other than those authorized by Subsections (b), (d), and (e) of this
section.

2The briefers acknowledge, of course, that operation of slot machines is still prohibited by
Statute, viz., as a “gambling device” under chapter 47 of the Penal Code, but contend that the legislature
may simply amend that statute to exclude slot machines from its ambit.

3The Prendergast court considered a very early version of the slot machine. It consisted of five
colored slots-red, black, green, white, and yellow-into which the player could insert a nickel. If the player
“won,” the red and black slots paid out a dime; the green slot a quarter, the white slot fifty cents; and
the yellow slot a dollar. Of course, in the usual circumstance, the player did not “win” anything. The
court declared that, even though the machine itself “would be indictable as a gaming device,” there is “no
reason why the keeper [of the machine, i.e., the owner of the premises in which the machine was
displayed] was not also indictable for establishing a lottery.” Prendergast v. State, 57 S.W. at 851.

4 Griffith operated a motion picture theater in the city of Wink. On one night per week,
denominated “bank night,” a drawing was held in the theater for which the prize was $35. A patron
became “eligible” for the drawing by signing a register left open at the ticket window of the theater.
Griffith contended that any person was permitted to sign the register simply by asking to do so, and thus,
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the constitution. City of Wink v. Griffith Amusement Co., 100 S.W.2d 695 (Tex. 1936).
In the course of its opinion, the court declared that article III, section 47, proscribed three
activities: 1) lotteries, 2) gift enterprises, and 3) other evasions involving the lottery
principle.> Furthermore, the court clearly articulated the three elements necessary to
constitute a lottery: 1) the offering of a prize, 2) by chance, and 3) the giving of
consideration for an opportunity to win the prize. Of the three, the court declared that
““chance’ is the one which constitutes the very basis of a lottery, and without which it
would not be a lottery.” City of Wink 100 S.W.2d at 701. Although the court in City of
Wink did not rule that “bank night” was a lottery, it did hold that “the Court of Civil
Appeals had substantial grounds for the conclusion to the effect that the ‘Bank Night’ plan
of defendant in error was a lottery.” Id., at 699-700. Furthermore, even if “not a lottery
within the meaning of the Penal Code,” it was nevertheless “at the very least a gift
enterprise involving the lottery principle,” and, as such, was proscribed by the
Constitution. Id. at 700.

For our purposes, however, it is sufficient to note that the Supreme Court had by
1936 laid out the definitive elements which constitute a “lottery” in the state of Texas.
Texas courts have consistently found that the term “lottery” includes a wide range of
activities involving the distribution of something of value by chance in exchange for
valuable consideration. This construction of the term “lottery” predates our current
constitution. The constitution of 1845 and every subsequent constitution have included a
prohibition against lotteries. The constitutions of 1845, 1861, 1866, and 1869 stated that
“No lottery shall be authorized by this State; and the buying and selling of lottery tickets
within this State is prohibited.” TEX. CONST. art. XII, § 36 (1869); TEX CONST. art VII, §
17 (1866); TEX CONST. art. VII, § 17 (1861); TEX. CONST. art. VIE, § 17 (1845). The
constitutional convention of 1875 expanded this language in response to activities
authorized by the Legislature of 1873 to state that “The Legislature shall pass laws
prohibiting the establishment of lotteries and gift enterprises in this State, as well as the
sale of tickets in lotteries, gift enterprises, or other evasions involving the lottery principle,

no consideration was required for the privilege of participating in the drawing. The court was not
persuaded by this argument: “[The] admission charge is inseparable from the privileges enumerated
{seeing the movie and participating in the drawing], which were materially different from the privileges of
those who remained outside of the theater holding the so-called ‘free’ registration numbers.” City of Wink,
100 S.W.2d, at 699. Furthermore, it made no difference “that a claimant's right to the prize was
evidenced by a registration book instead of a ticket, as is usual in lotteries... The registration numbers
represented ‘chances’ at the prize just as effectively as would tickets to the drawing.” Id. (Original
emphasis).

5 At least one of the briefs construes the constitutional language to prohibit 1) lotteries, 2) gift
enterprises, and 3) “the sale of tickets in lotteries, gift enterprises or other evasions involving the lottery
principle.” Under this reading, the “other evasions” language is applicable only when tickets are sold.
As syntactically attractive as this construction might be, it is barred by the Supreme Court's unequivocal
language in City of Wink.
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established or existing in other States.” But even prior to the 1876 constitution, the Texas
Supreme Court had found that

it makes not the slightest difference whether it be styled a ‘Gift
Enterprise,’ ‘Book Sale,’ ‘Land Distribution,’ or ‘Art Association,’
each and all are lotteries when the element of chance is connected

with, or enters into the distribution of its prizes.... Courts will
inquire not into the name, but the game, to ‘determine whether it is a
prohibited game.’

Randle v. State, 42 Tex. 580 (Tex. 1875) (Original emphasis). Later cases interpreted the
prohibition to include bingo, raffles, sales schemes, and other giveaways, whether or not
they had the three elements of “prize, chance and consideration,” used by the court later to
characterize a lottery. See, e.g., City of Wink, 100 S.W.2d 695.

In 1971, the legislature amended article 654 of the Penal Code, the criminal statute
then implementing article III, section 47, to permit certain “charitable organizations to
conduct lotteries for their benefit on property owned by the conducting agency” and
allowing the “sale or drawing of a prize at a fair held in this State for the benefit of a
church, religious society, veteran’s organization,” or similar entity. Acts 1971, 62d Leg.,
ch. 922, § 1, at 2823. As enacted, the amendment was intended to permit activities held
under the aegis of a particular class of charitable or quasi-charitable institution, such as
churches and veterans’ organizations, that were otherwise proscribed by the Penal Code.
In Tussey v. State, 494 S.W.2d 866, 869 (Tex. Crim. App. 1973), the court held that the
language of article III, section 47, prohibited the legislature from granting this exemption.
The court found that “any effort by the Legislature to authorize, license or legalize
lotteries is unconstitutional in light of the constitutional provision in question. ... Further,
the Legislature is likewise prohibited from indirectly doing so by way of exemption from
criminal prosecution.” Tussey v. State 494 S.W.2d at 869; see also City of Wink, 100
S.W.2d 695. It is clear that the term “lottery” will be broadly construed by the courts,
and that any game newly sanctioned by the legislature must be carefully scrutinized to
determine whether it is a “lottery.” If it is, it cannot be lawfully operated without a
constitutional amendment.

Subsequent to the court’s decision in Tussey, the legislature proposed, and the
electorate approved, a series of amendments.to article III, section 47. A 1980
amendment—the present subsections (b) and (c) of article III, section 47-excepted “bingo
games conducted by a church, synagogue, religious society, volunteer fire department,
nonprofit veterans organization, fraternal organization, or nonprofit organization
supporting medical research or treatment programs.” S.J.R. 18, Acts 1979, 66th Leg., at
3221. Subsection (d) was added in 1989 to permit “charitable raffles” held by those
entities which were already authorized to conduct bingo games. H.J.R. 32, § 1, Acts
1989, 71st Leg., at 6427. The most recent amendment, subsection (e), permits the
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legislature to “authorize the State to operate lotteries and [to] authorize the State to enter
into a contract with one or more legal entities that will operate lotteries on behalf of the
State.” H.J.R. 8, Acts 1991, 72d Leg., 1st C.S., at A-2.

“Lottery” is defined in section 47.01(6) of the Penal Code as

any scheme or procedure whereby one or more prizes are distributed
by chance among persons who have paid or promised consideration
for a chance to win anything of value, whether such scheme or
procedure is called a pool, lottery, raffle, gift, gift enterprise, sale,
policy game, or some other name.

Attorney General Opinion JM-1267 (1990) considered whether a variety of “casino
games,” including “slot machines,” could be validated by the legislature without the
necessity of amending article III, section 47. The opinion “assume[d} that two of the
necessary three elements of a lottery would be present during the holding of the gaming
activities” described in the opinion—“i.e., the payment of consideration and the awarding
of a prize”—and that the constitutionality of a particular game would be determined
according to whether, and to what extent, it contained the element of chance.

Opinion JM-1267, relying on judicial decisions and Attorney General Opinion C-
619 (1966), declared that the characterization of a particular game as a “lottery” is
dependent upon “whether the dominating element of the entire scheme was that of
chance, or that of skill, judgment, or ingenuity.” Quoting from Sherwood & Roberts-
Yakima, Inc. v. Clyde G. Leach, 409 P.2d 160 (Wash. 1965), Opinion C-619 stated that
“[i}f chance predominates over skill or judgment and permeates the whole plan, a lottery is
established.” See Adams v. Antonio, 88 S.W.2d 503 (Tex. Civ. App.—Waco 1935, writ
ref). ,

As this office stated in JM-1267, section 47 of article III does not “proscribe all
forms of gambling.” Pari-mutuel betting on horse or dog races, for example, although it
may contain.some element of chance, also depends, at least in part, on the bettor’s skill.
See Panas v. Texas Breeders & Racing Ass'n, 80 S.W.2d 1020 (Tex. Civ. App.—
Galveston 1935, writ dism’d); see also, Ginsberg v. Centennial Turf Club, Inc., 251 P.2d
926 (Colo. 1952); People ex rel. Lawrence v. Fallon, 46 N.E. 296 (N.Y. 1897). Opinion
JM-1267 did not resolve whether any of the games at issue there “involve[d] the
dominating element of skill, as opposed to chance,” since resolution of that question was
deemed to require findings of fact not appropriate to the opinion process. If, however, it
can be determined that the slot machine pay out is based entirely on chance rather than
skill, we can say that the operation of that device constitutes a “lottery” as a matter of
law. See State v. Fry, 867 S.W.2d 398 (Tex. App.—Houston [14th Dist.] 1993, writ ref.); State v. Mendel, 871 S.W.2d 906 (Tex. App.-Houston [14th Dist.] 1994, n.w.h.).
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Your request letter expresses your “understanding” that

[w]hether the player wins or not depends entirely on chance and is
not affected by any skill, judgment, or knowledge of the player.

In our opinion, this is a fair characterization of the device commonly referred to as a “slot
machine.” In a very recent opinion, the Attorney General of Kentucky held it to be
“immediately apparent” that slot machines, as well as such games as roulette and craps,
are purely games of chance:

No one can know what the next pull on the handle, spin of the wheel,
or throw of the dice will produce. It is impossible under these games
as we know them for any player, no matter how skillful, to destroy
the element of chance. They are lotteries, and in the case of slot
machines, have routinely been held so.

Attorney General of Kentucky, Opinion No. 93-58 (1993).

Furthermore, the odds of “winning” are the same for every play. No matter how
many games a player has played and lost, his odds of winning on the next pull of the
handle remain unchanged. It is clear that operation of a “slot machine” which functions in
the manner described herein, is, as a matter of law, a “lottery” for purposes of section 47
of article III of the Texas Constitution, and accordingly, may not be authorized by the
legislature in the absence of a constitutional amendment.⁶

Representative Thompson asks whether, if the legislature is prohibited from
directly authorizing private individuals and companies to operate slot machines within the
State, it may authorize the state itself to do so and to contract with one or more entities
that will operate the machines on behalf of the state. Representative Thompson’s inquiry
is prompted by the 1991 amendment to article III, section 47, the present subsection
(e), which authorized the state lottery:

(e) The Legislature by general law may authorize the State to
operate lotteries and may authorize the State to enter into a contract
with one or more legal entities that will operate lotteries on behalf of
the State.

6 Some of the briefs also contend that the legislature may simply re-define “lottery” to exempt
from its purview the operation of slot machines. The briefers rely on Panas v. Texas Breeders & Racing
Ass'n, 80 S.W.2d 1020 (Tex. Civ. App.-Galveston 1935, writ dism'd) to support their position. In that
case, the court determined that the legislature was constitutionally authorized to permit betting on horse
races. As we have indicated, however, supra, pari-mutuel betting on horse or dog races is not entirely a
game of chance. The legislature is not empowered to statutorily remove from the definition of “lottery” a
game which inarguably conforms to the constitutional meaning of “lottery.”
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Some have argued that the State Lottery Commission may authorize its lottery
operator to append “slot machines” to its repertoire of games, even in the absence of
further statutory intervention. Indeed, it has even been suggested that some of the games
currently being conducted are in fact “slot machines” in all but name.⁷ As we will
demonstrate, such hypertechnical arguments cannot survive serious scrutiny.

In our view, the circumstances surrounding the adoption of subsection (e) make it
abundantly clear that the voters who approved proposition 11 on the general election
ballot of November 5, 1991, did not intend to legalize the operation of slot machines,
whether by a private individual or company, by the state, or by a private individual or
company on behalf of the state.

The joint resolution which placed the lottery amendment on the ballot, H.J.R. 8,
Acts 1991, 72d Leg., 1st C.S., at A-2. used the language which now appears as subsection
(e) of article III, section 47, i.e., “[t]he legislature by general law may authorize the State
to operate lotteries....” (Emphasis added). However, the joint resolution read as
follows:

SECTION 2. This proposed constitutional amendment shall be
submitted to the voters at an election to be held on November 5,
1991. The ballot shall be printed to provide for voting for or against
the proposition: ‘The constitutional amendment authorizing a state
lottery.’

Id. (emphasis added). We believe it is self-evident that voters presumed from the ballot
language that they were voting for or against the common perception of a “state lottery,”
as denoted by the clear language of the ballot proposition, rather than a broad spectrum of
games which embody the “lottery principle,” as articulated by City of Wink, Tussey, and
numerous other judicial decisions. This view is amply supported by extrinsic evidence
from contemporary newspaper accounts.

First, every newspaper article and editorial to which we have been directed refers
to “a state lottery,” “a lottery,” or “a state-run lottery.” See, e.g., Austin American-
Statesman, November 1, 1991, November 3, 1991, November 6, 1991. In addition, the

articles make frequent reference to other governmental bodies which have previously

7 The State Lottery Act defines “lottery” as “the procedures operated by the state under this
chapter through which prizes are awarded or distributed by chance among persons who have paid, or
unconditionally agreed to pay, for a chance or other opportunity to receive a prize.” Gov't Code §
466.002(3).

8 Tapes of the House debate on the second and third readings of H.J.R. 8 contain no reference
whatever to slot machines.
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adopted “lotteries,” e.g., Washington D.C., and New York State, neither of which permit
government-operated slot machines. Dallas Morning News, November 1, 1991. Revenue
estimates mentioned in newspaper accounts are based on the experience of other states
which have conventional lotteries involving the purchase of lottery tickets and drawings
for winning numbers. /d.

Some accounts also refer to the proposed state lottery as a “numbers game.”
Houston Chronicle, November 4, 1991; Dallas Morning News, November 3, 1991. The
term “numbers game” has been authoritatively described as United States slang for “an
illegal form of gambling in which bets are taken on the occurrence of numbers in a lottery
or in the financial columns of a newspaper.” Oxford English Dictionary, 2d ed., 1989, v.
10, at 590. The OED reference notes the use of the term as early as 1897 and as recently
as 1975. We have found no evidence that the term “numbers game” has ever been used to
refer to a “slot machine.” Furthermore, some contemporary newspaper accounts make the
point that the adoption of the lottery amendment will permit more than one form of
“game,” beginning with “scratch-off lottery tickets,” and progressing to “the big-money,
computer-driven lotto games... .” Dallas Morning News, November 5, 1991; see also,
Austin American-Statesman, November 6, 1991. We believe it is significant that none of
the articles cited make any reference to “slot machines.”

There are well-established principles of constitutional construction that apply in
answering Representative Thompson’s question. It must be determined whether the
constitutional language is “plain and definite” and thus not subject to further
interpretation. It is clear, as stated above, that the language voted upon by the electorate,
that is, “The constitutional amendment authorizing a state lottery,” is plain and definite.
The constitutional amendment as passed by the voters does not include slot machines.
Some have suggested, however, that the term “lotteries” as contained in subsection (e)
should be interpreted as broadly as the courts have interpreted the same term in subsection
(a). Assuming for the sake of argument that further interpretation is necessary, then we
may apply principles of constitutional construction established by our courts in our
consideration of the term, the first and most important of which is to give intent to the
voters who adopted it. Based on the extrinsic evidence cited above, we do not believe the
intent of the voters in approving the proposition, “The constitutional amendment
authorizing a state lottery,” (H.J.R. 8, supra, emphasis added) was to authorize slot
machines.

The fundamental rule for the government of courts in the
interpretation or construction of a Constitution is to give effect to the
intent of the people who adopted it. The meaning of a Constitution
is fixed when it is adopted; and it is not different at any subsequent
time when a court has occasion to pass upon it. Where its terms are
plain and definite, that which the words declare is the meaning of the
instrument. In such cases there is no room for construction; the
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words of the instrument lie before the court already molded to their
use, and its province extends no further than the enforcement of the
language as written.

Cox v. Robinson, 150 S.W. 1149, 1151 (Tex. 1912) (citations omitted).

In San Antonio Independent School Dist. v. State, 173 S.W. 525 (Tex. Civ.
App.—San Antonio 1915), the court declared:

[A] state Constitution should not receive a technical construction like
a statute, but that rule of interpretation should be followed which
carries out the apparent intention of the people who enacted it.

To construe the term “lotteries” in subsection (e) to include slot machines, would
require applying a technical construction to the word “lotteries” derived from the case law
which was not before the voters in 1991. Nor does the language placed before the voters
suggest, on its face, such a construction. “[T]}hose who are called upon to construe the
[cJonstitution are not authorized to thwart the will of the people by reading into the
[cJonstitution language not contained therein.” Cramer v. Shappard, 167 S.W.2d 147,
154 (Tex. 1945). “It does not follow, either logically or grammatically, that, because a
word is found in one sense in one connection in a [c]Jonstitution, therefore, the same sense
is to be adapted in every other connection in which it occurs. Story on Constitution,
§ 454. Koy v. Schneider, 221 S.W. 880. 914 (Tex. 1950). Far less should the
construction of a word approved by voters separated in time by more than a century be
construed without reference to the context in which it was used and the intention it
expressed.

Rather, we should construe the language of the exception in light of our
contemporary situation, by limiting the meaning of the term “lottery” as approved by the
voters in 1991 to its plain meaning. To do otherwise, is to allow the exception to swallow
the rule. We decline to give the language of subsection (e) so unreasonable a construction
when a more sensible one suggests itself, especially when the more sensible interpretation
gives effect to the proposition actually presented to the voters. If the proposition passed
by the legislature and presented to the voters had been intended and understood to
authorize state-operated casinos, it would have been a simple matter for the language to
reflect that intention.?

There were two proposals to amend the constitution to allow casino gaming before the
legislature in 1993. Both House Joint Resolution 4 and House Bill 105 clearly articulate constitutional
proposals to allow charity casino gaming. Neither bill uses the term “lottery” in its generic sense applied
by the case law to express the purpose of allowing gaming activities not currently included in the
exceptions to article III, section 47. House Bill 105, in fact, includes the term lottery in a list of activities
consisting of pari-mutuel wagering, bingo, charitable raffles, and a sports pool, all of which are
specifically excluded from the definition of casino gaming. The language proposed to be put before the
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Honorable Senfronia Thompson

However, again for the purpose of argument, another principle of constitutional
construction that may be applied to the construction of the word “lotteries” in subsection
(e) is the rule of ejusdem generis, which result in the same above mentioned conclusion.

[W]here general words follow an enumeration of persons or things
by words of a particular and specific meaning, such general words
are not to be construed in their widest extent, but are to be held as
applying only to persons or things of the.same kind or class as those
specifically mentioned.

San Antonio I.S.D. v. State, 173 S.W. at 527. Simply put, the term “lotteries” is the third
of three specific exceptions to the general prohibition against “lotteries and gift
enterprises.” Therefore, the term “lotteries” in subsection (e) may not be given its widest
meaning but must be construed as belonging to the same “class” or category as charitable
bingo and charitable raffles. Considered as the third in a series of narrowly circumscribed
activities, the term “state-operated lotteries” would have to be understood to be a specific
activity, and not to mean the entire class of activities to which bingo and raffles also
belong. To read the amendment otherwise would lead to an absurd result.
“[C]onstitutional and statutory provisions will not be so construed or interpreted as to
lead to absurd conclusions . . . if any other conclusion or interpretation can reasonably be
indulged in.” Cramer v. Sheppard, 167 S.W.2d 147, 155 (Tex. 1943).

The term “slot machine,” with its associated images of Las Vegas-style casinos,
evokes intense emotion in many individuals who look upon a “state lottery” as a harmless,
even benign, method of raising state revenue, one which is qualitatively different from the
concept of “slot machine.” No evidence has been presented that any portion of the
electorate believed that, in approving the amendment for a “state lottery,” it was thereby
sanctioning slot machines. And as indicated, supra, a great deal of evidence suggests that
the voters who adopted the lottery amendment intended thereby to authorize only the
traditional form of “state lottery.” We conclude, therefore, that subsection (e) of article
III, section 47, does not empower the legislature to permit the state itself to operate slot
machines, nor does it authorize the legislature to permit the state to contract with one or
more entities that will operate the machines on the state’s behalf.

Representative Thompson also asks whether the legislature may permit private
individuals or entities to operate slot machines “on a riverboat or dockside casino” merely

voters was “The constitutional amendment authorizing casino gaming by charitable organizations.” Tex.
H.R. 4, 73d Leg. (1993). Clearly it would be absurd to impute to either the legislature or the voters the
intention to include casino gaming in the phrase “a state lottery” as used in the constitutional amendment
proposition that passed in 1991 when, with so little confusion and difficulty, it could have been put before
the voters in plain and direct language, as House Joint Resolution 4 would have, had it passed the
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Honorable Senfronia Thompson

by amending the definition of “bet” in section 47.01(1) of the Penal Code. As we have
noted, the legislature may not, in light of the constitutional prohibition against “lotteries,”
validate slot machines simply by re-defining the term “lottery” to exclude slot machines
from its purview. In our opinion, this principle applies equally to the definition of “bet.”
Article III, section 47, directs the legislature to “pass laws prohibiting the establishment of
lotteries.” Clearly, this constitutional provision is not self-enacting, and, had the
legislature never enacted any implementing legislation, suit would not lie to compel
enactment. However, where there is a history of penal statutes implementing the
constitutional prohibition, repeal of one of those prohibitions is not a neutral act, and, in
our opinion, such repeal would contravene the constitutional proscription of subsection (a)
of section 47 of article III. We conclude, therefore, that the legislature may not legalize
the operation of slot machines by private entities merely by amending the definition of
“bet” in section 47.01(1) of the Penal Code.

SUMMARY

A “slot machine,” as that term is commonly understood, is a
device which awards cash or other prizes solely on the basis of
chance, and is not affected by any skill, judgment, or knowledge of a
particular player. As such, it constitutes an unlawful lottery in
contravention of article III, section 47 of the Texas Constitution.
Operation of “slot machines” may not be authorized by the
legislature in the absence of a constitutional amendment.
Furthermore, subsection (e) of article III, section 47, does not
authorize the legislature either to permit operation of slot machines
by the state, or to permit the state to contract with one or more
entities to operate slot machines on behalf of the state. The
legislature may not legalize the operation of slot machines by private
entities merely by amending the definition of “bet” in section

47.01(1) of the Penal Code.
Very truly yours,

DAN MORALES
Attorney General of Texas
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Honorable Senfronia Thompson

JORGE VEGA
First Assistant Attorney General

DREW T. DURHAM
Deputy Attorney General for Criminal Justice

RENEA HICKS
State Solicitor

JAVIER AGUILAR
Special Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General