Poker clubs fail to fit the narrow “social gambling” exemptions that would allow them to operate legally in Texas, and Texas Attorney General Ken Paxton should render an opinion to that effect, a Dallas lawyer stated.
For-profit poker houses are not private places, and their owners and operators benefit economically from them, Attorney Will Hartnett wrote in a letter to the attorney general’s office submitted Jan. 29 on behalf of Texans Against Gambling.
Sen. Brandon Creighton, R-Conroe, had requested an attorney general’s 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.”
Austin Kinghorn, chair of the opinion committee in the state attorney general’s office, set June 12 as the deadline for issuing an opinion. In his letter to Creighton, copied to Texans Against Gambling and others, Kinghorn invited briefings on his question by Jan. 29 from anyone “with special interest or expertise in the subject matter.”
In a five-and-one-half-page briefing letter, Hartnett noted the Texas Penal Code permits “social gambling” on poker games only when two conditions are met: the gambling must occur in a “private place,” and no person may receive “any economic benefit” other than personal winnings.
“Poker clubs advertise to the public and conduct their business in commercial, nonresidential areas” that are “accessible to the public,” Hartnett wrote.
“A poker club is not private simply because the owner says that it is private,” he stated. “The basic intent of the law is to prevent public gambling and to create a defense for purely social gambling. Poker clubs directly contravene that intent.”
Owners and operators of poker clubs assert they are private establishments because they charge membership fees.
However, most offer one-day memberships to anyone who walks through the door, Hartnett noted.
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In regard to economic benefit, owners of poker clubs point out they do not take a “rake”—typically understood as a percentage of the value at risk in a game of chance.
However, Hartnett asserted, “the definition of economic benefit is broader than just a ‘rake.’”
“Any fee collected to access a poker club’s facilities is an economic benefit,” he wrote. “Any compensation paid to individuals who serve as poker dealers, food and drink preparers, and food and drink servers, is an economic benefit.”
The “social gambling defense” does not apply to commercial poker clubs, he concluded.
“They are neither private nor bereft of economic benefits. These clubs may not legally operate because they violate the offenses of gambling and keeping a gambling place,” Hartnett wrote. “For these reasons, the Attorney General should determine that poker clubs are illegal under Texas law.”
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