Attorney general opinion sought on gambling issues


Texas Attorney General Ken Paxton’s office will respond in less than six months to a request for an opinion regarding the legality of poker house operations.

However, the attorney general’s office declined to render a requested opinion on whether certain gaming machines are illegal gambling devices.

Austin Kinghorn, chair of the opinion committee in the state attorney general’s office, responded recently to requests for clarification on the two gambling-related issues.

Sen. Brandon Creighton, R-Conroe, requested an opinion on “whether a gambling establishment that charges a membership or entrance fee but does not take a percentage of the value gambled violates the gambling provisions in the Penal Code.”

In a Dec. 21 letter to Creighton, Kinghorn acknowledged receipt of the request for an opinion and set June 12 as the deadline for issuing an opinion.

“However, we note that you have requested an expedited opinion. We will therefore make every effort to respond to your request as promptly as possible,” the letter stated.

Texas law allows limited social gambling if it occurs in a private place, if no party receives any economic benefit other than personal winnings, and if the risks are the same for all participants.

An establishment that receives a “rake”—typically a percentage of the value at risk in gambling—is not permitted under Texas law. However, some lawmakers have questioned the legality of poker clubs that charge fees.

Creighton’s request marks the second time a lawmaker has sought an attorney general opinion regarding the legality of poker house operations.

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In 2018, Paxton’s office declined to offer an opinion on the legal status of poker enterprises that charge a fee from gamblers, requested by Rep. Genie Morrison, R-Victoria, citing pending litigation. At the time, a poker club in Austin had sued another poker club in San Antonio, alleging unfair competition.

Kinghorn’s letter to Creighton was copied to representatives of Texans Against Gambling, Catholic Charities and the Texas District and County Attorneys Association. In the letter, he invited briefings on Creighton’s question by Jan. 29 from anyone “with special interest or expertise in the subject matter.”

“At Texans Against Gambling, we believe these poker clubs aren’t clubs at all. They’re commercial gambling businesses with poker as the means to gamble,” said Russ Coleman, chair of Texans Against Gambling.

“We believe these businesses’ attempts to circumvent long-standing Texas law are contrivances on several levels, and fail, and we hope the Texas attorney general also holds these views.”

Request for opinion denied

Kinghorn also responded to a separate request from Cooke County Attorney Edmund J. Zielinski for an opinion about whether equipment qualifies as a prohibited gambling device under the Penal Code if “its play involves a fixed or finite sweepstakes system.”

“After review of your request, it has become apparent that providing an answer to your question would require us to investigate and resolve factual matters,” Kinghorn wrote in a Jan. 8 letter to Zielinski.

Kinghorn noted the purpose of an attorney general opinion is “to advise authorized requestors on the current state of the law,” not to “resolve disputed issues of fact.”

“Accordingly, when presented with opinion requests that require the resolution of fact questions, this office has consistently concluded that such questions are outside the purview of the opinion process,” Kinghorn wrote.

He added, “In this case, even if your request contained additional factual information, we would decline to opine as this office does not offer conclusions as a matter of law on the legality of a particular amusement device.”

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