85R1812 DMS-F

By: Raymond H.B. No. 894

A BILL TO BE ENTITLED

AN ACT

relating to local option elections to legalize or prohibit the operation of eight-liners; imposing fees; creating criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 17, Election Code, is amended by adding Chapter 502 to read as follows:

CHAPTER 502. LOCAL OPTION ELECTIONS ON OPERATION OF EIGHT-LINERS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 502.001. DEFINITION. In this chapter, "eight-liner" has the meaning assigned by Section 47.01, Penal Code.

SUBCHAPTER B. MANNER OF CALLING ELECTION

Sec. 502.051. ELECTION TO BE HELD. On proper petition by the required number of voters of a county or of a justice precinct or municipality in the county, the commissioners court of the county shall order a local option election in that political subdivision to determine whether the operation of eight-liners shall be legalized or prohibited in the political subdivision.

Sec. 502.052. QUALIFICATION FOR POLITICAL SUBDIVISION TO HOLD ELECTION. A political subdivision may not hold a local option election to legalize or prohibit the operation of eight-liners in the political subdivision unless the political subdivision has been in existence for at least 18 months.

Sec. 502.053. APPLICATION FOR PETITION. (a) On written application of 10 or more qualified voters of any county or of a justice precinct or municipality in the county that includes proof of publication of the application in a newspaper of general circulation in that political subdivision not earlier than the 30th day before the date the petition is filed, the county clerk of the county shall issue to the applicants a petition to be circulated among and signed by the qualified voters of the political subdivision requesting that a local option election be called to determine whether the operation of eight-liners shall be legalized or prohibited in the political subdivision.

(b) Not later than the fifth day after the date the petition is issued, the county clerk shall notify the secretary of state that the petition has been issued.

Sec. 502.054. CONTENTS OF APPLICATION FOR PETITION TO LEGALIZE. (a) An application for a petition requesting an election to legalize the operation of eight-liners must include the heading: "Application for Local Option Election Petition to Legalize the Operation of Eight-Liners."

(b) The application must contain the following statement of the issue to be voted on, immediately preceding the signatures of the applicants: "It is the purpose and intent of the applicants whose signatures appear on this application to legalize the operation of eight-liners in (name of political subdivision)."

Sec. 502.055. CONTENTS OF APPLICATION FOR PETITION TO PROHIBIT. (a) An application for a petition requesting an election to prohibit the operation of eight-liners must include the heading: "Application for Local Option Election Petition to Prohibit the Operation of Eight-Liners."

(b) The application must contain the following statement of the issue to be voted on, immediately preceding the signatures of the applicants: "It is the purpose and intent of the applicants whose signatures appear on this application to prohibit the operation of eight-liners in (name of political subdivision)."

Sec. 502.056. PETITION REQUIREMENTS. A petition must include the date the petition is issued by the county clerk and be serially numbered. Each page of the petition must bear the same date and serial number and the actual seal of the county clerk rather than a facsimile of that seal.

Sec. 502.057. HEADING AND STATEMENT ON PETITION TO LEGALIZE. (a) Each page of the petition for a local option election to legalize the operation of eight-liners must include the heading: "Petition for Local Option Election to Legalize the Operation of Eight-Liners."

(b) The petition must contain the following statement of the issue to be voted on, immediately preceding the signatures of the petitioners: "It is the purpose and intent of the petitioners whose signatures appear on this petition to legalize the operation of eight-liners in (name of political subdivision)."

Sec. 502.058. HEADING AND STATEMENT ON PETITION TO PROHIBIT. (a) Each page of the petition for a local option election to prohibit the operation of eight-liners must include the heading: "Petition for Local Option Election to Prohibit the Operation of Eight-Liners."

(b) The petition must contain the following statement of the issue to be voted on, immediately preceding the signatures of the petitioners: "It is the purpose and intent of the petitioners whose signatures appear on this petition to prohibit the operation of eight-liners in (name of political subdivision)."

Sec. 502.059. OFFENSE: MISREPRESENTATION OF PETITION. (a) A person commits an offense if the person misrepresents the purpose or effect of a petition issued under this chapter.

(b) An offense under this section is a Class B misdemeanor.

Sec. 502.060. COPIES OF PETITION; RECORDS. (a) The county clerk shall provide the number of copies of the petition required by the applicants provided the number of pages does not exceed one page for every 10 registered voters of the county or of a justice precinct or municipality in the county. Each copy must bear the date, number, and seal on each page as required on the original petition.

(b) The county clerk shall keep a copy of each petition and a record of the applicants for the petition.

Sec. 502.061. VERIFICATION OF PETITION. (a) Except as otherwise provided by Section 277.003, Election Code, the voter registrar of the county shall check the names of the signers of petitions and the voting precincts in which the signers reside to determine whether the signers were qualified voters of the county or of a justice precinct or municipality in the county at the time the petition was issued. The registrar shall certify to the commissioners court the number of qualified voters signing the petition.

(b) A petition signature may not be counted unless:

(1) the signature is the actual signature of the purported signer;

(2) the petition contains in addition to the signature:

(A) the signer's printed name;

(B) the signer's date of birth;

(C) if the territory from which signatures must be obtained is situated in more than one county, the county of registration;

(D) the signer's residence address; and

(E) the date of signing; and

(3) the petition complies with any other applicable requirements prescribed by law.

(c) The use of ditto marks or abbreviations does not invalidate a signature if the required information is reasonably ascertainable.

(d) The omission of the state from the signer's residence address does not invalidate a signature unless the political subdivision from which the signature is obtained is situated in more than one state. The omission of the zip code from the address does not invalidate a signature.

(e) The signature is the only entry on the petition that is required to be in the signer's handwriting.

(f) A signer may withdraw the signer's signature by deleting the signature from the petition or by filing with the voter registrar an affidavit requesting that the signature be withdrawn from the petition. A signer may not withdraw the signature from a petition on or after the date the petition is received by the registrar. A withdrawal affidavit filed by mail is considered to be filed at the time of its receipt by the registrar. The withdrawal of a signature nullifies the signature on the petition and places the signer in the same position as if the signer had not signed the petition.

Sec. 502.062. REQUIREMENTS TO ORDER ELECTION. (a) The commissioners court, at its next regular session on or after the 30th day after the date the petition is filed, shall order a local option election to be held on the issue set out in a petition that complies with the requirements of Subsection (b).

(b) The petition must:

(1) be filed with the voter registrar not later than the 60th day after the date the petition is issued; and

(2) bear the signatures of a number of qualified voters of the political subdivision equal to at least 35 percent of the registered voters of the subdivision who voted in the most recent gubernatorial election.

(c) A voter whose name appears on the list of registered voters with the notation "S," or a similar notation, shall be excluded from the computation of the number of registered voters of a particular territory.

Sec. 502.063. RECORD IN MINUTES. The commissioners court shall enter in its minutes the date a petition is presented, the names of the signers, and the action taken with respect to the petition.

Sec. 502.064. ISSUES TO APPEAR IN ORDER FOR ELECTION. (a) The election order must state in its heading and text whether the local option election to be held is for the purpose of legalizing or prohibiting the operation of eight-liners as set out in the issue recited in the application and petition.

(b) The order must state the issue to be voted on in the election.

Sec. 502.065. BALLOT. The ballot in an election to legalize or prohibit the operation of eight-liners shall be prepared to permit voting for or against: "The legal operation of eight-liners in (name of political subdivision)."

Sec. 502.066. EVIDENCE OF VALIDITY. The commissioners court election order is prima facie evidence of compliance with all provisions necessary to give the order validity or to give the commissioners court jurisdiction to make the order valid.

Sec. 502.067. FREQUENCY OF ELECTIONS. A local option election on a particular issue may not be held in a political subdivision until after the first anniversary of the date of the most recent local option election in that political subdivision on that issue.

SUBCHAPTER C. HOLDING OF ELECTION

Sec. 502.101. APPLICABILITY OF ELECTION CODE. Except as provided by this chapter, the officers holding a local option election shall hold the election in the manner provided by this code.

Sec. 502.102. ELECTION PRECINCTS. (a) County election precincts shall be used for a local option election to be held in an entire county or in a justice precinct.

(b) Election precincts established by the governing body of the municipality for its municipal elections shall be used for a local option election to be held in a municipality. If the governing body has not established precincts for its municipal elections, the commissioners court shall prescribe the election precincts for the local option election under the law governing establishment of precincts for municipal elections.

Sec. 502.103. ISSUE ON BALLOT. (a) The issue ordered to appear on the ballot for an election ordered by the commissioners court must be the same as the issue applied for and set out in the petition.

(b) The ballot must include the language required under Section 502.065.

Sec. 502.104. COUNTY PAYMENT OF ELECTION EXPENSES. The county shall pay the expense of holding a local option election authorized by this chapter in the county or in a justice precinct or municipality in the county except that:

(1) if an election is to be held only within the corporate limits of a municipality located wholly within the county, the county may require the municipality to reimburse the county for all or part of the expenses of holding the local option election;

(2) county payment of the expense of an election to legalize the operation of eight-liners is limited to the holding of one election in a political subdivision during a one-year period; and

(3) county payment of the expense of an election to prohibit the operation of eight-liners is limited to the holding of one election in a political subdivision during a one-year period.

Sec. 502.105. DEPOSIT REQUIRED FOR CERTAIN ELECTIONS; OFFENSE. (a) If a county is not required to pay the expense of a local option election under Section 502.104, the county clerk shall require the applicants for a petition for a local option election to make a deposit before the issuance of the petition.

(b) The deposit must be in the form of a cashier's check in an amount equal to 25 cents per voter listed on the current list of registered voters residing in the county or in a justice precinct or municipality in the county where the election is to be held.

(c) The money received shall be deposited in the county's general fund. A refund may not be made to the applicants regardless of whether the petition is returned to the county clerk or the election is ordered.

(d) The county clerk may not issue a petition to the applicants unless a deposit required by this chapter is made.

(e) A person who violates Subsection (d) commits an offense. An offense under this subsection is a misdemeanor punishable by:

(1) a fine of not less than $200 nor more than $500;

(2) confinement in the county jail for not more than 30 days; or

(3) both the fine and confinement.

Sec. 502.106. ELECTION IN CERTAIN MUNICIPALITIES. (a) This section applies only to an election to legalize or prohibit the operation of eight-liners in a municipality that is located in more than one county.

(b) An election to which this section applies shall be conducted by the municipality instead of the counties. For the purposes of an election conducted under this section, a reference in this chapter to:

(1) the county is considered to refer to the municipality;

(2) the commissioners court is considered to refer to the governing body of the municipality;

(3) the county clerk or voter registrar is considered to refer to the secretary of the municipality or, if the municipality does not have a secretary, to the person performing the functions of a secretary of the municipality; and

(4) the county judge is considered to refer to the mayor of the municipality or, if the municipality does not have a mayor, to the presiding officer of the governing body of the municipality.

(c) The municipality shall pay the expense of the election.

(d) An action to contest the election under Section 502.155 may be brought in the district court of any county in which the municipality is located.

SUBCHAPTER D. PROCEDURE FOLLOWING ELECTION

Sec. 502.151. DECLARATION OF RESULT. (a) On completing the canvass of the election returns, the commissioners court shall issue an order declaring the election result, and the clerk of the commissioners court shall record the order as provided by law.

(b) In a legalization election, if a majority of the votes cast favor legalizing the operation of eight-liners in the political subdivision, the operation of eight-liners within the boundaries of the political subdivision is legal on the entering of the court's order. The legalization remains in effect until changed by a subsequent local option election held under this chapter.

(c) In a prohibitory election, if a majority of the votes cast do not favor the legal operation of eight-liners in the political subdivision, the court's order must state that the operation of eight-liners within the boundaries of the political subdivision is prohibited effective on the 30th day after the date the order is entered. The prohibition remains in effect until changed by a subsequent local option election held under this chapter.

(d) The local option status of a political subdivision does not change as a result of the election if:

(1) in an election described by Subsection (c), less than a majority of the votes cast do not favor the issue; and

(2) in an election described by Subsection (b), less than a majority of the votes cast favor the issue.

Sec. 502.152. ORDER PRIMA FACIE EVIDENCE. The order of the commissioners court declaring an election result is prima facie evidence that all provisions of law have been complied with in giving notice of and holding the election, counting and returning the votes, and declaring the result of the election.

Sec. 502.153. CERTIFICATION OF RESULT. Not later than the third day after the date the result of a local option election has been declared, the county clerk shall certify the result to the secretary of state. The clerk may not charge a fee for this service.

Sec. 502.154. POSTING ORDER PROHIBITING OPERATION. (a) A commissioners court order declaring the result of a local option election and prohibiting the operation of eight-liners within the boundaries of a political subdivision must be published by posting the order at three public places in the political subdivision in which the election was held.

(b) The posting of the order shall be recorded in the minutes of the commissioners court by the county judge. The entry in the minutes or a copy certified under the hand and seal of the county clerk is prima facie evidence of the posting.

Sec. 502.155. ELECTION CONTEST. (a) The enforcement of local option laws in the political subdivision in which an election is being contested is not suspended during an election contest.

(b) The result of an election contest finally settles all questions relating to the validity of that election. A person may not call the legality of that election into question again in any other suit or proceeding.

(c) If an election contest is not timely instituted, it is conclusively presumed that the election is valid and binding in all respects on all courts.

SUBCHAPTER E. MISCELLANEOUS LOCAL OPTION PROVISIONS

Sec. 502.201. LOCAL OPTION STATUS OF AREA. (a) In a criminal prosecution, all trial courts of this state shall take judicial notice of whether the operation of eight-liners is legal or prohibited in an area.

(b) In an information, complaint, or indictment, an allegation that the operation of eight-liners is prohibited in an area is sufficient, but a different status of the area may be urged and proved as a defense.

Sec. 502.202. CHANGE OF STATUS. Except as provided in Section 502.203, an authorized voting unit that has exercised or may exercise the right of local option retains the status adopted until that status is changed by a subsequent local option election in the same authorized voting unit.

Sec. 502.203. PREVAILING STATUS: RESOLUTION OF CONFLICTS. To ensure that each voter has the maximum possible control over the status of the operation of eight-liners in the area where the voter resides:

(1) the status that resulted from or is the result of a duly called election for a municipality prevails against the status that resulted from or is the result of an election in a justice precinct or county in which the municipality or any part of the municipality is contained; and

(2) the status that resulted from or is the result of an election for a justice precinct prevails against the status that resulted from or is the result of an election in a municipality in which the justice precinct is wholly contained or in a county in which the justice precinct is located.

Sec. 502.204. CHANGE IN PRECINCT BOUNDARIES. (a) When a local option status is in effect as the result of the vote in a justice precinct, the status shall remain in effect until the status is changed as the result of a vote in the same territory that constituted the precinct when the status was established. If the boundaries of the justice precinct have changed since the status was established, the commissioners court shall, for purposes of a local option election, define the boundaries of the original precinct. A local option election may be held within the territory defined by the commissioners court as constituting the original precinct.

(b) Nothing in this section is intended to affect the operation of Section 502.203.

(c) Section 502.104, relating to the payment of local option election expenses, applies to elections held in a territory that is defined in accordance with Subsection (a).

SECTION 2. Section 2153.002, Occupations Code, is amended by amending Subdivisions (1), (5), and (6) and adding Subdivision (2-a) to read as follows:

(1) "Coin-operated machine" means any kind of machine or device operated by or with a coin or other United States currency, metal slug, token, electronic card, or check, including a music or skill or pleasure coin-operated machine. The term does not include an eight-liner.

(2-a) "Eight-liner" has the meaning assigned by Section 47.01, Penal Code.

(5) "Operator" means a person who exhibits or displays, or permits to be exhibited or displayed, a coin-operated machine or an eight-liner in this state in a place of business that is not owned by the person.

(6) "Owner" means a person who owns a coin-operated machine or an eight-liner in this state.

SECTION 3. Chapter 2153, Occupations Code, is amended by adding Subchapter K to read as follows:

SUBCHAPTER K. FEE ON EIGHT-LINERS

Sec. 2153.501. IMPOSITION OF FEE. (a) A fee is imposed on each eight-liner that an owner exhibits or displays, or permits to be exhibited or displayed, in this state.

(b) The amount of the fee is $350 per year.

Sec. 2153.502. EXEMPTION. The fee imposed under this subchapter does not apply to an owner of an eight-liner if the owner possesses the eight-liner for resale only.

Sec. 2153.503. PRORATED FEE. The fee on an eight-liner first exhibited or displayed in this state after March 31 of any year is one-fourth of the amount imposed under Section 2153.501 for each quarter or partial quarter of the calendar year remaining after the date the owner first exhibits or displays the eight-liner.

Sec. 2153.504. COLLECTION. (a) The comptroller shall collect the fee.

(b) In collecting the fee, the comptroller may:

(1) collect the fee on a quarterly basis;

(2) establish procedures for quarterly collection of the fee; and

(3) establish dates on which the fee payment is due.

(c) An owner required to pay a fee under this section shall pay the fee to the comptroller by cashier's check, money order, or any other method authorized by the comptroller.

Sec. 2153.505. ALLOCATION OF REVENUE. (a) The comptroller shall deposit 30 percent of each fee collected under this subchapter to the credit of the general revenue fund.

(b) For an eight-liner located in a municipality, the comptroller shall remit 70 percent of the fee collected under this subchapter to the municipality in which the eight-liner is located.

(c) For an eight-liner located outside a municipality, the comptroller shall remit 70 percent of the fee collected under this subchapter to the county in which the eight-liner is located.

(d) The comptroller shall remit fee revenue to a municipality or county under this section as soon as feasible after collecting the fee.

Sec. 2153.506. REFUND OR CREDIT PROHIBITED. The comptroller may not refund or assign credit for the fee imposed under this subchapter to an owner who ceases to exhibit or display an eight-liner before the end of the calendar year for which the fee is imposed.

Sec. 2153.507. FEE PERMIT. (a) The comptroller shall issue a fee permit to an owner who pays the fee.

(b) The comptroller may issue a duplicate fee permit to an owner if the owner's fee permit is lost, stolen, or destroyed. The fee for a duplicate permit is $5.

(c) A fee permit shall be securely attached to the eight-liner for which the permit is issued in a manner that requires the continued application of steam and water to remove the permit.

Sec. 2153.508. APPLICABILITY OF TAX CODE. Subtitle B, Title 2, Tax Code, applies to the administration, collection, and enforcement of taxes, penalties, and interest under this subchapter.

SECTION 4. Section 234.131(1), Local Government Code, is amended to read as follows:

(1) "Amusement redemption machine" means a bona fide amusement device as defined by Section 47.01, Penal Code, operated in a manner that constitutes an affirmative defense under Section 47.091, Penal Code [any electronic, electromechanical, or mechanical contrivance designed, made, and adopted for bona fide amusement purposes that rewards the player exclusively with noncash merchandise, prizes, toys, or novelties, or a representation of value redeemable for those items, with a wholesale value available from a single play of the game or device in an amount not more than 10 times the amount charged to play the game or device once or $5, whichever amount is less].

SECTION 5. Section 47.01, Penal Code, is amended by amending Subdivisions (4) and (9) and adding Subdivisions (10), (11), and (12) to read as follows:

(4) "Gambling device" means any device [electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B)] that for [a] consideration affords the player or user of the device an opportunity to obtain any thing [anything] of value, the award of which is determined solely or partially by chance, even though accompanied by some skill[, whether or not the prize is automatically paid by the contrivance]. The term[:

[(A)] includes, but is not limited to, a gambling device version [versions] of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or a facsimile of any of those games [facsimiles thereof], that:

(A) operates solely or partially [operate] by chance;

(B) [or partially so, that] as a result of the play or use [operation] of the game, awards [award] credits or free games; [,] and

(C) records [that record] the number of free games or credits [so] awarded and the cancellation or removal of the free games or credits[; and

[(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less].

(9) "Thing of value" means any property, money, right, privilege, or other benefit, including a representation of value redeemable for any property, money, right, privilege, or other benefit [but does not include an unrecorded and immediate right of replay not exchangeable for value].

(10) "Device" includes all or part of an electronic, electromechanical, or mechanical contrivance, machine, or apparatus.

(11) "Eight-liner" means an electronic device capable of simulating the play of a traditional mechanical slot machine, or one-armed bandit, regardless of the number of lines of play on the device, that for the payment of consideration affords a player of a game on the device an opportunity to win a prize based solely or partially on chance, if the prize from a single play of the game consists of:

(A) cash in an amount of $1,500 or less; or

(B) noncash merchandise, or a representation of value redeemable for noncash merchandise, that has a wholesale value of $1,500 or less.

(12) "Bona fide amusement device" means a device on which an amusement game or other activity can be played or conducted for consideration, for which skill is the predominating requirement for a player of the game to win or be awarded a thing of value. The term does not include:

(A) an eight-liner; or

(B) an electronic, electromechanical, or mechanical version of bingo, keno, blackjack, lottery, roulette, video poker, or a similar game, or a facsimile of any of those games, that operates solely or partially by chance.

SECTION 6. Section 47.02(c), Penal Code, is amended to read as follows:

(c) It is a defense to prosecution under this section that the actor reasonably believed that the conduct:

(1) was permitted under Chapter 2001, Occupations Code;

(2) was permitted under Chapter 2002, Occupations Code;

(3) was permitted under Chapter 2004, Occupations Code;

(4) consisted entirely of participation in the state lottery authorized by the State Lottery Act (Chapter 466, Government Code);

(5) was permitted under the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes); [or]

(6) consisted entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the Parks and Wildlife Department; or

(7) consisted entirely of operating an eight-liner in an area in which the operation of eight-liners has been legalized by a local option election under Chapter 502, Election Code.

SECTION 7. Section 47.03(b), Penal Code, is amended to read as follows:

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is more than $1,500 but less than $20,000;

(2) a felony of the third degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is at least $20,000 but less than $100,000; or

(3) a felony of the second degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is $100,000 or more.

SECTION 8. Section 47.04(c), Penal Code, is amended to read as follows:

(c) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is more than $1,500 but less than $20,000;

(2) a felony of the third degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is at least $20,000 but less than $100,000; or

(3) a felony of the second degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is $100,000 or more.

SECTION 9. Section 47.06(e), Penal Code, is amended to read as follows:

(e) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is more than $1,500 but less than $20,000;

(2) a felony of the third degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is at least $20,000 but less than $100,000; or

(3) a felony of the second degree if:

(A) the offense involves a device described by Section 47.01(11) other than the monetary prize limits provided by Sections 47.01(11)(A) and (B); and

(B) the prize for a single play of the game is $100,000 or more.

SECTION 10. Section 47.09(a), Penal Code, is amended to read as follows:

(a) It is a defense to prosecution under this chapter that the conduct:

(1) was authorized under:

(A) Chapter 2001, Occupations Code;

(B) Chapter 2002, Occupations Code;

(C) Chapter 2004, Occupations Code; or

(D) the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes);

(2) consisted entirely of participation in the state lottery authorized by Chapter 466, Government Code; [or]

(3) was a necessary incident to the operation of the state lottery and was directly or indirectly authorized by:

(A) Chapter 466, Government Code;

(B) the lottery division of the Texas Lottery Commission;

(C) the Texas Lottery Commission; or

(D) the director of the lottery division of the Texas Lottery Commission; or

(4) consisted entirely of operating an eight-liner in an area in which the operation of eight-liners has been legalized by a local option election under Chapter 502, Election Code.

SECTION 11. Chapter 47, Penal Code, is amended by adding Section 47.091 to read as follows:

Sec. 47.091. DEFENSES FOR BONA FIDE AMUSEMENT DEVICE. (a) It is an affirmative defense to prosecution under Section 47.02 that:

(1) the conduct consists entirely of the play or use of a bona fide amusement device; and

(2) the player or user may not win or be awarded a thing of value for playing or using the device other than:

(A) noncash merchandise available only on the premises where the device is located; or

(B) a ticket, coupon, or other representation of value redeemable only on the premises where the device is located for noncash merchandise.

(b) For purposes of Subsection (a):

(1) the noncash merchandise or representation of value redeemable for noncash merchandise that may be won or awarded for a single play of a game or use of the device may not have a wholesale value of more than the lesser of:

(A) 10 times the amount charged for the single play or use; or

(B) $5; and

(2) an item of noncash merchandise that may be won or awarded for playing or using the device or for which a person may redeem one or more tickets, coupons, or other representations of value won or awarded for playing or using the device may not have a wholesale value of more than $50.

(c) It is an affirmative defense to prosecution under Section 47.03, 47.04, or 47.06 that the conduct consists of or is a necessary incident to offering, using, or maintaining one or more bona fide amusement devices used exclusively for conduct for which Subsection (a) provides an affirmative defense to a person playing or using the device, including the manufacturing, transporting, storing, or repairing of the device.

SECTION 12. Section 47.02(e), Penal Code, is repealed.

SECTION 13. (a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date.

(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 14. (a) This Act takes effect only if the constitutional amendment proposed by the 85th Legislature, Regular Session, 2017, authorizing local option elections to legalize or prohibit the operation of eight-liners takes effect. If that amendment is not approved by the voters, this Act has no effect.

(b) Subject to Subsection (a) of this section:

(1) Sections 1, 2, and 4 through 13 of this Act take effect on the date on which the constitutional amendment described by Subsection (a) of this section takes effect; and

(2) Section 3 of this Act takes effect January 1, 2018.