Fantasy Sports Push in Texas

Proponents of Daily Fantasy Sports (DFS) in the US state of Texas are to launch another push to legalize the practice, despite the fact that DFS is already being played in the state. 

State Representative Joe Moody has filed a bill, known as HB 393, which aims to define DFS as a game of skill, and thereby legalizing the winning of prizes by participants. But it’s worth noting that the bill does not provide a potential route for the legalization of sports betting in the state. Moody has made it clear that under his proposed bill, the outcome of any DFS contest cannot depend on the performance of either a single athlete or a single sports team. 

Uphill Struggle

If it is passed, HB 393 will take effect from September 1, next year, but Moody and the bill’s supporters face an uphill struggle when it reaches the Texas Senate. Last year, Moody and a number of other state representatives sponsored HB 2303, which was identical to HB 393, but although it passed the House easily, on a 116-26 vote, the Senate didn’t take it up. Due to the peculiar nature of Texas politics, in which regular legislative sessions are only held in odd-numbered years, there was no progress this year, and HB 393 will be up for debate in 2021. 

Games of Skill

Complicating the issue further is the fact that DFS is already played in Texas. Both major DFS operators, FanDuel and DraftKings, accept entries from players based in Texas, so if it passes, Moody’s bill will not be introducing something new to residents of the Lone Star State.

All that Moody’s bill aims to do is to define DFS contests as games of skill rather than games of chance. This is because if DFS were considered to be games of chance, such contests would be illegal according to Texas law. In fact, back in 2016, Ken Paxton, the Texas Attorney General, gave a non-binding opinion that stated that DFS contests should be considered as gambling. But the complexity of the issue was underlined by Paxton’s comments in a local newspaper in 2019, in which he explained that it would be tricky to criminalize the large numbers of DFS players in the state:

“The law itself in the penal code isn’t clear whether you can grab up the conduct of close to 4 million Texans and have it criminalized.”

Consumer Protection

In light of the fact that DFS is already widely played in Texas, the introduction of HB 393 has more to do with customer protection than it does with attempting to provide security for operators. 

In an interview with a US newspaper, Moody said that he was unaware of any Texan who had been prosecuted for taking part in a DFS contest, but that in his opinion, the bill still had a purpose. He explained that his understanding was formed by his previous role as a prosecutor and that the existing situation was maintained by prosecutors throughout the state maintaining discretion, a situation that could be overturned by a single prosecutor who interpreted the law differently. 

Texas retains some of the toughest gambling rules in the US, making it illegal to wager on sports or casino activities, with the exception of some casino operations on Native American land. 

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