However it can be argued that a club isn’t really private if anyone can walk in, become one of hundreds or thousands of other members, and play. The first element-that the game take place in a “private place”-is likely met by the members-only nature of these clubs. Private poker clubs arguably satisfy the first and third elements of the defense. In addition to the offense of participating in gambling, it is a criminal offense under section 47.04 of the Texas Penal Code to “keep a gambling place” by using or allowing another to use one’s property “as a gambling place.” A “gambling place” is defined as any real estate used for the “making or settling of bets.” Section 47.04 repeats the same three-element defense to prosecution. (3) except for the advantage of skill or luck, the risks of losing and the chances of winning are the same for all participants. (2) no person receives any economic benefit other than personal winnings and (1) the game is played in a private place (defined as “a place to which the public does not have access” ) Under section 47.02 of the Texas Penal Code, a person commits an offense if he “plays and bets for money or other thing of value at any game played with cards” It is a defense to prosecution under section 47.02 if three elements are met: Owners of these clubs claim they are operating in accordance with Texas’s gambling laws by charging only membership fees, rather than taking a percentage of the pot. Poker clubs began popping up around Texas around 2015.

Poker clubs have not been legalized by constitutional amendment or statewide referendum but are generally allowed (or overlooked). Horse and dog racing (pari-mutuel) was legalized by a statewide referendum. Over time, the Texas Constitution has been amended to allow charitable bingo, charitable raffles, and a state-operated lottery. Article III, section 47 of the Texas Constitution states that “he Legislature shall pass laws prohibiting lotteries and gift enterprises in this State.” In accordance with that mandate, the legislature enacted Chapter 47 of the Texas Penal Code, titled “Gambling.” Gambling has been prohibited in Texas for most of the state’s history. Until voters approve a constitutional amendment legalizing poker clubs, or a case makes its way to the Texas Supreme Court, these establishments will operate on precarious legal footing. Owners of these clubs claim they are operating in accordance with Texas's gambling laws by charging membership fees, instead of taking a rake. Private poker clubs have popped up all over Texas in recent years.

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