The decision by the lottery commission to allow electronic pull-tab bingo flies in the face of an Attorney General's opinion issued in April in response to a request by Jane Nelson, a staunch opponent of the expansion of gambling. AG's opinions are advisory and not binding, but this one makes the case that the Legislature did not intend to allow such games when it passed the enabling act authorizing bingo games in 1981. The opinion was dated April 19, two months before the Lottery Commission approved pull-tab electronic bingo.
Nelson was concerned that a proposal to allow electronic pull-tab bingo, which had been offered as a Senate floor amendment in the 79th Legislature by Gonzalo Barrientos, might resurface this session. Barrientos's amendment, which he later withdrew, defined electronic pull-tab bingo" as "a game played on a card-minding device or electronic monitoring terminal using electronic pull-tab bingo tickets." In other words, electronic pull-tab bingo is a slot-machine game: punch the button and you win or lose.
The opinion traces the history of the legalization of bingo. It was a response to a 1976 court decision (State v. Amvets Post No. 80)that a bingo game operated by a veteran's organization was illegal. At the time, many churches used bingo game as a way of raising money, and there was considerable concern in the Legislature that this tradition would not be able to continue, and that law-abiding citizens would be subject to arrest. In 1979 the Legislature voted to put a constitutional amendment authorizing bingo games by charitable organizations before the voters. The amendment was adopted in 1980. In 1981, the Legislature passed an enabling act that allowed charitable organizations such as "churches, synagogues, religious societies, volunteer fire departments, fraternal organizations, nonprofit veterans organiations, or nonprofit organizations supporting medical research" to conduct bingo games.
The opinion notes that the 1981 act defines bingo as "a specific game of chance ... in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random" (ellipses added). The use of "card," according to the opinion, suggests that the Legislature had in mind "traditional bingo played on a card." In 1995, the Legislature deleted "card" from the definition. The law specified, "Nothing in this Act shall be construed as authorizing any game using a video lottery machine ...."
By this time, bingo had evolved from small charitable church games into large, professionally run games run ostensibly for the benefit of charities but in fact most of the take went to the entrepreneurs who owned and operated bingo halls. The big operators could offer bigger prizes, and they effectively put the small church games out of business. Also, by this time, pull-tab bingo was widely available at these sites. Players could pull up the tabs to reveal a printed bingo card which was either a winner or a loser. My recollection is that Bob Bullock, while he was comptroller and responsible for the regulation of bingo, authorized pull-tab bingo. The reason I recollect this is that I wrote that he had no authority to do so. A few days after publication, Bullock walked up to me in the Capitol and growled, "I ought to kill you." He pronounced it, "keel." The 1995 deletion of "card," occurring when Bullock was lieutenant governor, may have been a belated effort to legalize pull-tab bingo after the fact.
The opinion relies heavily on legislative history to reach its conclusion that electronic pull-tab bingo lies outside the type of gaming activity that the Legislature intended to authorize:
"[T]he legislative history of [the bingo amendment] supports the view that this provision relates to the Amvets type of bingo game. A 1980 report by the House Study Group on the proposed bingo amendment describes bingo as involving social interaction. 'Bingo is a social function. It brings people together who want to be together. Its social nature is one of the ways it differs from games like roulette or slot machines.' The opinion also relies on the Legislative Council's 'Analyses of Proposed Constitutional Amendments, For Election November 4, 1980,' stating that bingo games provide an opportunity for entertainment, social gathering, and relaxation for a significant part of a community, in particular, elderly persons.' This aspect of bingo indicates that when the bingo amendment was adopted, the game of bingo was understood to be the bingo game described in Amvets, and not a game played electronically. The social interaction present in traditional bingo is diminished, if not eliminated, in a game played by an individual on a computer monitor. The Supreme Court of Wyoming, in an exhaustive opinion determining that electronic bingo was not 'bingo' within a 1971 statute, noted that '[b]ingo-type games contemplate a group activity, often social.'"
The opinion concludes, "We believe a Texas court would find that bingo does not include electronic pull-tab bingo ...."
I believe so too. When the Legislature deleted "card" from the statute in 1995, it clearly indicated that it did not intend to authorize electronic video lottery machines. This includes electronic pull-tab bingo. The cited analyses of the House Study Group and the Legislative Council should not be given as much weight as actual legislative action, but they do support the same conclusion.
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