Online Gambling in Texas Explained: What’s Allowed and What’s Not

The Tigua Tribe opened the Speaking Rock gaming facility in 1993. The Tigua tribe claimed a 1986 US Supreme Court case (California v. Cabazon Band of Mission Indians) and subsequent U.S. Indian Gaming Regulatory Act of 1988 gave them the right to host a casino.

Several Texas governors since 1993 have taken the opposite position. The State of Texas and Tigua Tribe have battled over the matter in court for years.

Then-Gov. Rick Perry’s administration won a lawsuit against the Tigua Tribe in 2002, when a judge ruled on behalf of Texas that the Tigua Tribe didn’t have the right under federal law to host a gaming venue. The Tigua would appeal the decision, which would stay in the federal court system for years.

Texas Attorney General Ken Paxton responded to the daily fantasy sports controversy by declaring DFS illegal in the State of Texas. While Paxton said that DFS might involve skill, it also had elements of chance that made it illegal.

It was a non-binding opinion, but the main DFS sites responded to Paxton’s statement. FanDuel stopped accepting Texas real money players, while DraftKings filed a federal lawsuit against Paxton.

Since 2016, Naskila Gaming and the State of Texas have been in a legal battle over the Alabama-Coushatta Tribe’s right to host gambling on its reservation lands.

On March 14, 2019, US District Judge Philip Martinez ruled against the Naskila Gaming complex in the Fifth Circuit Court of Appeals. The Alabama-Coushatta tribe appealed a previous decision that it had violated state law by hosting Class II (bingo-based) gaming machines at its complex.

According to Texas Monthly, the Tigua Tribe and Alabama-Coushatta Tribe face different legal hurdles than the Kickapoo Tribe. A 2019 issue stated: “The battle revolves around the 1987 federal Restoration Act, which reinstated the U.S. government’s responsibility for Tigua and Alabama-Coushatta lands. Most Native American land is officially owned by the federal government but held for the benefit of a particular tribe, in what’s known as a trust relationship.

“From the 1940s through the 1960s, federal policy sought to assimilate Native Americans by eliminating recognition of many tribes and dissolving the trust relationships. That’s what happened to the Tigua (in 1968) and the Alabama-Coushatta (in 1954), when trusteeship of their lands was transferred to the state of Texas.

“However, in 1985, Texas attorney general Jim Mattox ruled that this trust relationship violated a 1972 state constitutional amendment, which left the tribes without any recognized legal status. Without a trust relationship with either the state or federal government, the tribes said, they faced bankruptcy or other financial challenges. So, the Tigua and Alabama-Coushatta sought to reinstate their federal recognition—and the access to federal services for tribes that accompany it—via the Restoration Act.”

Rep. Richard Pena Raymond submitted House Bill 1457 to the Texas Legislature. HB 1457 sought to legalize and regulated DFS gaming in the State of Texas. FanDuel and DraftKings both backed the bill.

Instead, HB 1457 died in legislative session, despite widespread support among Texas residents. Pena Raymond said at the time he had “never seen something have so much support across the board from the most conservative to the most liberal” residents.

In February 2019, State Rep. Eduard Lucio III introduced House Bill 1275 to the Texas House. This bill would have legalized and regulated sports betting. The bill died in committee later that year.

On the same day, Eddie Lucio introduced HJR 61 — a bill to host a statewide referendum on legal sports betting in Texas. Like HB 1275, HJR 61 never received a floor vote in the Texas legislature.

In 2019, State Rep. Joe Moody introduced House Bill 2303 to the Texas House. The bill would classify fantasy sports as a game of skill — thus making it legal.

Originally, the Texas House passed HB 2303 by a 116-27 vote. On May 2, 2019, the House voted to give the measure final approval, sending it to the Texas Senate.  The Senate did not pass the bill, though.

In November 2020, Rep. Joe Moody (pictured right) once against introduced a fantasy sports bill to the Texas House — HB 309. Given the margin HB 2303 passed in the House in 2019, HB 309 should pass in the Texas House in 2021. If so, the Texas Senate again would decide its fate.

If the bill passed and Gov. Greg Abbott signs it into law, then fantasy sports would become legal and regulated in Texas on September 1, 2021.

In February 2021, the US Supreme Court asked the Acting US Solicitor General to state his opinion on the Tigua Tribe’s federal case. The US Solicitor General is a high ranking member of the US Department of Justice who represents the DOJ before the Supreme Court. The SCOTUS opinion said, “The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.”

Todd Curry, a political science professor at UTEP, said the decision shows Justice Gorsuch’s growing influence on tribal issues. Curry told the El Paso Herald Post, “It’s really a new ball game with Gorsuch on the court. He is an advocate for tribes in the U.S., and really is changing the landscape for how these cases play out.”

The professor added that Texas is an outlier on tribal gaming law, so the decision to appeal to US DOJ official’s opinion is a good sign for the Tigua Tribe. Curry added tribal gaming “is an area where Texas really is different, and I think the justices are looking for an independent opinion.”