Court Lays Poker Ruling on the Table

In the arcane world of legal interpretation, courts are often called upon to decipher the intent and application of statutes drafted 100 years earlier.

So it should come as no surprise that a California Court of Appeal last summer had to interpret a few words added to a state statute in 1885, and seemingly ignored ever since. What is a bit unusual is the words themselves: stud horse poker.

You see, playing stud horse poker--whatever that is--is illegal. And the legal question facing the court was whether a popular modern game of poker, Texas Hold-Em, was really a form of stud horse poker and therefore illegal.

Texas-Hold Em, in which all players share certain cards displayed in the center of the table, was played at the Oaks Card Room in Emeryville, Calif., until December, 1987. Then an official opinion issued by the state attorney general said that Texas Hold-Em was a form of the prohibited stud horse poker.

Nora Tibbetts, the owner of the Oaks Card Room, filed a suit asking the court for “declaratory relief”--a ruling that Texas Hold Em was entirely separate and distinct from stud horse poker and not banned by the criminal statute in question.

She got what she wanted.

First, at a trial, and then in an appeal to the First District Court of Appeal, the courts reviewed the history of the legislation, the nature of different poker games and decided that playing Texas Hold-Em is not prohibited by the criminal code.

Poker fans and history buffs will love the court’s written opinion (Tibbetts v. Van de Kamp). You will discover a litany of prohibited games, all of them banned in 1872: faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half and hokey-pokey. Stud horse poker was added to the list in 1885, but the legislature did not bother to define it. (Back then, everybody apparently knew what it was.)

So, now in 1990, a court had to decide how to define it. Experts testified, historical poker treatises were consulted, even law review articles on the obscure subject were cited. It turns out that Texas Hold-Em is not considered by the experts to be straight, draw or stud poker. It falls into a category all by itself: Spit in the Ocean or community card poker. The court describes this category as “a large family of games embracing a common essential feature: each player combines the cards dealt to him with one or more cards exposed on the table.”

It is a game “filled with excitement,” a great deal of luck and requires “you to do some damn smart figuring if you want to succeed” the court observed, quoting one expert.

Not to leave the issue completely resolved, the court notes that the regulation of gambling is really a question for the state legislature, after all.

So if Texas Hold-Em should be banned, perhaps the legislature should ante up with a new statute.

Klein, an attorney and assistant to the publisher of The Times, cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.