Poker Clubs and Municipal Court

In Texas, gambling is illegal. Gambling is so illegal, in fact, that allowing charitable raffles at rodeos required Texas to amend its Constitution. See, Tex. Const. Art 3, Sec. 47 (d-1), Proposition No. 1, Nov. 2, 2021. Chapter 47 of the Penal Code clearly sets out a prohibition on, effectively, all gambling. Tex. Pen. Code § 47.02. Given this, one might wonder about the gambling clubs opening in several cities.

An affirmative defense exists in Chapter 47. Gambling is not illegal if: the gambling occurred in a public place; no person received any economic benefit other than personal winnings; and except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants. The poker clubs which have opened in cities in Texas operate under the theory that they are legal under Chapter 47 because they are private clubs, charge a membership fee but do not take a cut of winnings, and the games do not favor any player other than through skill or luck. Whether this is true is a legal question.

The Texas Attorney General has declined to issue an opinion on this question, pending the outcome of a case which has brought this before the Texas Supreme Court.

Many cities in Texas have considered whether to issue certificates of occupancy for gaming clubs. In Dallas, one club, The Texas Card House, applied for a certificate of occupancy, and the certificate was granted. Then it was revoked, reinstated, and revoked again. The matter has now been appealed to the Fifth Court of Appeals in Dallas. Depending upon the outcome of the Texas Card House v. Espinoza case, cities which granted these certificates may seek to enforce their zoning ordinances though any available means. Beyond the criminal enforcement of zoning ordinances, prohibited gambling under Penal Code Section 47.02 is a class C misdemeanor. Although these may not yet have found their way to municipal courts, there is a very real possibility that they will, depending upon how courts decide this point of law.

Published by markgoodner

General Counsel & Director of Education, TMCEC

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