Why are County District Attorneys Allowing Gambling Joints?: The Law and Texas Courts Clearly Say Gambling is Illegal

Historically, gambling in Texas has been prohibited. County law enforcement officials are willfully protecting illegal gambling joints in their jurisdictions by knowingly misinterpreting court cases, state statutes, and the Constitution, all of which clearly make gambling illegal. This must stop. Gambling devices are illegal, period, and will remain so unless the people see fit to change the Texas Constitution. Until that happens, illegal gambling will persist in counties where district attorneys willfully fail to do their jobs and enforce the law.

As early as 1861, the Texas Constitution specifically prohibited all types of gambling. In 1980, the Texas Constitution was amended to allow charitable bingo. Later, the Constitution was amended again to create the state lottery.  To protect citizens from predatory gambling and the evil vices that gambling attracts, our current Constitution specifically requires that the Legislature prohibit all lotteries or gift enterprises other than those the Constitution expressly authorizes.
Texas Constitution Title III, Section 47(a):
“The Legislature shall pass laws prohibiting lotteries and gift enterprises in this State other than those authorized by Subsections (b), (d), (d-1), and (e) of this section.”

The passage above also has the effect of making it impossible for the state legislature and other units of government, such as counties, to make any law or ordinance that legalizes gambling.

Furthermore, Texas courts have been clear and consistent in their rulings on the prohibition of gambling throughout history. Here are samples of court decisions interpreting Texas gambling laws.
Randle v. State, 1874
The Texas Supreme Court heard Randle v. State in 1874. In that case, the Court ruled that gambling operators cannot skirt the law merely by labeling their activities as something other than gambling. The Court held that it does not matter what you call gambling. It will always be gambling.
“The activities name ‘makes not the slightest difference;’ it is a lottery when the element of chance is connected with it.” (Emphasis added.)
The Randle decision is still on the books here in Texas. That means it does not matter what you call a gambling device. You can call it a “skill game” or any other creative euphemism. According to the Texas Supreme Court, it does not matter. Gambling will always be gambling.

“Tested by the principles embraced in the opinions referred to, and the authorities cited, we have no hesitation in declaring that ‘the operation of the Galveston Gift Enterprise Association’ shows clearly that it is, in its operation and essence, ‘a scheme for the distribution of prizes by chance, or in other words, is a lottery within the very letter and spirit of the law, and is a plain infringement on the constitutional inhibition of lotteries.’” (Emphasis added.)

In other words, games of chance are lotteries. Lotteries are gambling. Gambling is illegal.
State v. Fry, 1993
According to the Fourteenth Court of Appeals in Houston, a bet is a bet. Gambling operators can insist that their games are “puzzles,” but the courts are not fooled.
“As is the case with this video slot machine, when one uses a device to receive something of value for consideration paid (whether or not that consideration is called a ‘bet’), and the payout is based on chance rather than skill, a person of ordinary intelligence could understand that activity to constitute gambling. Because a player may win or lose money based upon chance, and can choose the amount at risk on each play, a person of ordinary intelligence would consider that the player is making a ‘bet.’” (Emphasis added.)
State v. Gambling Device, 1993
The First Court of Appeals, also located in Houston, created a new test to determine whether the element of chance was present in an activity. Legal scholars refer to this test as the “Any Chance Test.” Basically, if any amount of chance affects the outcome, then courts will find the game is not a game of skill.
“[E]ven a contrivance that is predominantly a game of skill may be determined by chance…”
So, regardless of whether the proportion of skill to chance was 99 to 1, 75 to 25, or 100 percent chance, it does not matter to the First Court of Appeals. Any randomness in the outcome will satisfy the element of chance in its analysis.

“[I]t is the incorporation of chance that is the essential element of a gambling device, not the incorporation of a particular proportion of chance and skill.” (Emphasis added.)

To illustrate the court’s point, imagine a spectrum where a game of pure luck (like roulette) is on one end, and a game of pure skill (such as chess) is on the other end. What the court is saying here is that if the game is not purely skill-based, it can be labeled a game of chance.
City of Longview v. Head, 2000
Gambling device operators are not entitled to a declaratory judgment as to whether their machines are operating legally. The Twelfth Court of Appeals held that trial courts have no jurisdiction to render a declaratory judgment on the interpretation of a penal statute prohibiting the possession of gambling devices or to prohibit its enforcement in the absence of any challenge to the constitutionality of the statute.

“A civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute only when (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court’s equity powers and irreparable injury to property or personal rights is threatened, or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights. Moreover, the Supreme Court has made it clear that a naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunctive relief, is not within the jurisdiction of a Texas civil court.” (Emphasis added.)
Some district attorneys rely on the judicial order in JCTJBT2, LLC v. Skill Game USA, LLC, to justify their inaction on gambling activity. The 294th District Court of Van Zandt County, a trial court, entered its order despite the fact that the plaintiff neither challenged the constitutionality of Penal Code Chapter 47 nor sought injunctive relief. Since the ruling in City of Longview v. Head is binding upon the 294th District Court, the judicial order in JCTJBT2, LLC v. Skill Game USA, LLC is very unlikely to withstand appellate review.
Hardy v. State, 2001
In Hardy, the Tenth Court of Appeals ruled that it does not matter that each “spin” on a gambling machine awards less than $5. Since players can win anything other than a stuffed animal (a toy worth less than $5), it is gambling. For the $5 exclusion to apply, it must be a stuffed animal; it cannot be $5 in cash.

“The Hardys also contend that the seized machines fall within the statutory exclusion because the value of the tickets which could be dispensed after a single play was ‘not more than 10 times the amount charged to play the game or device once or $5, whichever is less.’ See TEX. PEN. CODE ANN. § 47.01(4)(B). However, a reading of the statute reflects that this limitation refers only to the value of the ‘noncash merchandise, prizes, toys, or novelties’ which a player could win, by playing a particular machine. Id. Because the undisputed evidence establishes that the seized machines rewarded players with tickets redeemable for ‘cash,’ the fact that the Hardys limited the amount of cash a player could win from a single play is irrelevant.” (Emphasis added.)
In 2003, the Texas Supreme Court agreed with the Tenth Court of Appeals when Hardy reached the Supreme Court. Specifically, the Supreme Court held:

“The eight-liners at issue did not award prizes, toys, or novelties. They awarded tickets that could be exchanged either for gift certificates or cash to play other machines. Thus, we must decide whether the tickets issued by the eight-liners in this case are representations of value that are redeemable solely for noncash merchandise prizes, toys, or novelties. We conclude they are not.” (Emphasis added.)
City of Fort Worth et al. v. Stephanie Lynn Rylie, et al, 2022
Three elements must be present for a game to constitute gambling: chance, prize, and consideration. For the element of chance to be satisfied, there must be some degree of randomness. The prize element is simple: you have to be able to win something of value. Consideration means paying money to play. If you pay money to play, then the consideration element is satisfied. The courts ruled in City of Fort Worth v. Rylie:
“In any event, the Operators have not explained what elements beyond chance, consideration, and prize are arguably pertinent when it comes to whether their eight-liners are unconstitutional lotteries. We conclude that, in fact, ‘what is, and what is not, a lottery’” does ‘distil to a handy three-part test.’” (Emphasis added.)
The “fuzzy animal exception” exists in Texas law and says that even if all three elements of gambling are present, but you are only playing to win a “fuzzy animal,” then it does not count as gambling. In Rylie, the Second Court of Appeals in Tarrant County said gambling operators could not rely on the fuzzy animal exception anymore.

“Because the Operators stipulated that their eight-liners award prizes by chance and for consideration, the machines are lotteries, and the legislature cannot define around that fact.” (Emphasis added.)

Rylie also mentions State v. Gambling Device, 1993 (discussed above). The Rylie court gives weight to the standing legitimacy of the “Any Chance Test” by stating:
“We do note that a sister court has considered (and rejected) a sliding-scale-type argument advanced in connection with a void-for-vagueness challenge, holding that something is indeed a ‘gambling device’ if it incorporates ‘any element of chance, even if the exercise of skill also influences the outcome.’” (Emphasis added.)

Rylie also provides guidance on the game of skill versus game of chance discussion. The Second Court of Appeals states that if chance, prize, and consideration are present then it does not matter if some other factor (such as skill) is also present.

“That additional features might be present in a given lottery does not mean that a scheme or machine consisting merely of the three—as the Operators have stipulated to here—is somehow not a lottery.” (Emphasis added.)

Finally, Rylie also clearly states that local governments can take enforcement actions against gambling device operators despite the fact that Texas law allows for gaming rooms in the Occupations Code.

“In sum, the Operators’ eight-liners are lotteries, and they are unconstitutional. Accordingly, because Occupations Code Section 2153.003 provides that Chapter 2153 does not ‘authorize’ or ‘permit’ unconstitutional machines, the Code’s preemptive effect—argued by the Operators as a way to avoid the City’s ordinances—falls by the wayside.” (Emphasis added.)
Conclusion
I would like to conclude by providing a quote from State v. Lipkin, a 1915 North Carolina Supreme Court decision that has stood the test of time. These words are as true today as they were when they were written over one hundred years ago:
“[N]o sooner is a lottery defined, and the definition applied to a given state of facts, than ingenuity is at work to evolve some scheme of evasion which is within the mischief, but not quite within the letter, of the definition. But, in this way, it is not possible to escape the law’s condemnation, for it will strip the transaction of all its thin and false apparel and consider it in its very nakedness. It will look to the substance and not to the form of it, in order to disclose its real elements and the pernicious tendencies which the law is seeking to prevent.” (Emphasis added.)

Texas law is very clear: gambling is illegal. But gambling operators are crafty. The “games” they create are designed to appear to skirt around the letter of the law but always fail to evade the spirit and true intent of the law.

Today, gambling operators have not even been able to get around the letter of law because of our courts’ clear and consistent rulings. Each of the cases described above build upon the other to clearly demonstrate that gambling devices are illegal, that attempts to circumvent the law will always be identified by the courts, and that local governments have the ability to stop gambling.

Is gambling an issue in your county? Call your district attorney and ask why.