The proliferation of game rooms is attributed to two points in Texas law. The first is the so-called “fuzzy animal” exception added to the Texas Penal Code in the mid-1990s by the Legislature, which provides an exception for gaming machines that only award non-cash prizes under $5 in value; the second is by county and city governments that offer game room permits by ordinance.
Reports of increased criminal activity at game rooms are common, with some officials saying they lead to much larger crimes that put public safety in jeopardy.
Odessa Mayor Javier Joven led the charge to crack down on game rooms that proliferate his city. While Joven says he wanted to outright ban them, pushback from local officials regarding the clarity of state law led him to pass an ordinance that phases them out through a regulatory process.
“Regulating game rooms merely signals a willingness of our city to do business with an illicit business enterprise,” Joven said in an interview with The Texan. He described how he believes the game rooms “get their foot in the door” using the fuzzy animal exception and local government permitting, and once established, they “implement other enterprises.”
“We value life, families, and the rule of law in Odessa, and while I wish we could have simply enforced state law and shut them down sooner, we managed to find a way.”
According to Joven, Odessa has had as many as 32 game rooms within the city limits, and he believes another 28 or so operate in the county.
The new city ordinance, which was adopted in September, stops the issuance or renewal of any more licenses; at the end of the year, when all current licenses expire, there will be no game rooms operating under permit within the city.
Joven added that while he believes the laws are clear on the matter, a Fort Worth lawsuit working its way through the courts could clear up any question on state laws.
In that case, several owners filed suit against the city for passing ordinances to reign in the proliferation of game rooms, arguing that state law preempted the city’s authority to regulate the businesses.
The Texas Second Court of Appeals ultimately upheld the city’s regulatory powers, writing that the operator’s “eight liners are lotteries, and they are unconstitutional” under the Texas Constitution, but stopped short of reviewing the constitutionality of the “fuzzy animal” exception in the Texas Penal Code.
The Second Court of Appeals did take issue via dicta with a past Amarillo appeals court case that upheld the constitutionality of the fuzzy animal exception, writing that they viewed the analysis upholding the law as “flawed.”
Ector County District Attorney Dusty Gallivan, whose jurisdiction includes the City of Odessa, says that while game rooms have been an issue in Odessa, they are not his top issue, citing a rise in violent juvenile crime. He believes the Supreme Court needs to take up the Fort Worth lawsuit, or the legislature needs to clear up the law.
“Yes,” Gallivan wrote in a response to The Texan, “the case should be heard by the Texas Supreme Court. The Legislature either needs to make it legal or illegal, none of this middle-of-the-road stuff that makes it very difficult to enforce.”
Smith County District Attorney Jacob Putman, whose jurisdiction includes the City of Tyler, has taken a very different approach to enforce state gambling laws. He cited a proliferation of game rooms that caused a multitude of problems for law enforcement in recent years, leading their office to issue cease and desist letters to all game rooms — ordering them to stop operating or face criminal charges.
“[The game rooms] have tried all sort of different claims to justify them legally,” Putman said in a phone interview, referring to claims that game rooms are games of skill and not chance and therefore do not qualify as gambling. To Putman, the law is sufficiently clear on the issue and they “don’t make exceptions.”
“I don’t think the laws are too complicated so maybe if the Legislature made it clearer, you’d get a little more enforcement, but the lack of enforcement you are seeing now is mostly just a lack of political will in certain offices.”
Attorneys for the Fort Worth game room operators have asked the Supreme Court for two extensions of time to file an appeal, their latest by November 4, citing multiple conflicts from other cases as the cause of the delay.
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Matt Stringer is a reporter for The Texan who writes about all things government, politics, and public policy. He graduated from Odessa College with an Associate Degree in Paralegal Studies and a Bachelor’s Degree in Management and Leadership. In his free time, you will find him in the great outdoors, usually in the Davis Mountains and Big Bend region of Southwest Texas.