Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTIN
Xonorablr Andrew Patton
Dlrtriot Attorney
Dallar County
Dallas, Tex.rr
ottary rtatutrr
pt o? your raquert
ctor I. Q.” rrdlo
work oaoh work I#
our appreolatlon r0r
ml your brief which ooaply
6399, Ravirod Clril Stat-
09 th8 brhr rubalttrdr
eraa 18 prsasntrd
weak ror a half hour
mmroial rponror. Thr pro-
mm a motion plcturr
an intsrd8alon bstaaaa plo-
phono hr mlvlner tho red10 and pioture
rhori sudienor that ho ha8 rav8ral asmlr-
tant8, raoh with a portable microphoar,
aaong thr aaabarm of ths audionor. Thr
Honorobls Andrrw Patton, pagr 2
announoar reqursts ona of his aseIstants
to ohoose a momber of the and irnor who
is wIllIng to answar a question sbout to
br propounded. Thr announoar than pro-
pounds the q ues tioln,
:vIsI~ the Farson
ohosw that If he oan answsr thr question
hs will br paid a stated stim of nonry. In
the OVOBt tho correct OB8W.r ir &iV@B, ths
monry Is tbsrr paid to tha mombrr.or tha
audlrnoa who thus assisted In the vmrk,
and thr asslrrtant announcaT8 peas on
through the audlrnor ohooslng othar got:;
with whom tha proaass Is rrpeatrtl.
emnt that ths parson chosen oannot andwar
thr question, or glvrs the wrong answar, thr
asslstant announoIr, nrvarthalrss, ooopan-
satre him for his efforts by presenting
him with 6 box of acrohandlsa on behalf
or the sponsor of tho program,
“As an Illustration oi the questions
aotuslly propounds&, soaa that have brsn
used arm:
nlzbo won thr 1939 National League
pennant?’
WgIs It poealbla to make fresh wator
out of salt water?’
“‘In 19lf,, In what nation was thr
olty OS Wsrsaw?*
wFor the oorreot answer to thr first
quastion, $9.00 ms p&Id: for the sroond
uastlon $5.00; an4 for ths third quertlon
%8.00. In tha avant th:t any on8 of ths
questiona was not answerrd correctly, tha
sponeorr gsta the person who bad voluntrcrrd
to trr to answrr the question a box of mer-
ohandls a. Therr ir BO Oontrst b&wean the
various menbars of the SUdIsBO6, 8imr if
tha first person chosen do68 not prO94rly
answsr the quartion, ths annoUnoar on thr
eta&o advises all of t&r ludianor what tha
oorrsot amwcr Is, and an rntiralf blrrer-
ent qutstion IS presantrd to the nart par-
Honorable Andrew Patton, poet 3
son who volunteers. The mnbera of the
audIen who volunteer to try to answer
tho qurstlons propounded, rcaeln at their
plaoes In tho thsatre and &peak through a
portable mlorophone.
“?I0 maaber of the audlanoo 18 oom-
pellet5 or ureed to pertloipata, but an7
member of the audlenoe who wishes to do so
mar havs an opportunity to try to answer a
QUeZItiOB.
*In afldltlon to that portion of the
program hereinabove outlined, awards are
m&e by those who present the show to For-
sells who rend In questIons that ara ohvam
for propoutilng i and other awards ara nade
to those mezibers of the audionot who can
oorrectlf answer a list of questIons whioh
the announcer stater. Eaah member Of the
audionor has a tally oar6 upon Hhloh ha MI
cheek as right or wrong each rtate~ont
included In this list. Usually, th6re are
niar or tan such statomante, such as: ‘A
latohet Is a shoostrIng. * Zvarjr member
of the azlenoe has an equal opportunity to
answer th e puostlona, an6 laoh of those who
oorreotly answer 811 of the puestlons Is
peld an equal srmunt for his contribution
Of his talmt to the cvenl~e'e entertaln-
aent. There Is no drawing, no ‘luoky BUa-
born, nor price, to be droI4ed by lot,
luok or chance. Instaad, each person who
p3rtlcipetes Is paid for tls partlolpatlon
In Qlreot proportion to the value 0s his
servlors. -
t3ootion 17 0s Artlole III or the Constitution
or Texas reads:
“The Legislature shall pass laws
prohibiting the rstablishment Of lot-
teries and girt anterprIses In thls
state, es well as the sale of tickets
In lotteries, gift enterprises or othsr
ava6Iona Involving the lottery prinol-
pal, establlehed or exIstlng, in other
etatos.m
Honorable Andrew Patton, pa(3e 4
FUrWant to 6uOh command the LsgIslature
pasasd Artlols 634 of the Fens1 Code, whioh reads
48 r0iim8r
*If any parson shall estsblIah a
lottart or dIsposa 0s any estate, real
or personal, by lottery, ha shall be
flnad not lese than One Hundred ($100)
Doll4r8 nor more than One ThouBand
($1,000) Dollars; or If sny parson
shall mall, offer for sale or keep
for sala snr tIokets or part tIoketr
in sky lottery he shell be fined not
less than TOB t 10) Dollars nor more
than Fifty (850 ! Dollare.”
in City or Kink v6. crirrith A!nunure~eBt
coin-
pan7, 100 9. K. (26) 695, (Ter. Sup. Ct.), the oourt
said:
"The State Penal Code does not da-
fin0 8 lottsrr, but our oourts have
interpreted it in aocordanoe with pub-
110 usage,
to mean 8 schsme or plan
xhioh pro~Iaes for a dIstrlbutlon of
crItes bf or¬ among those who have
paid, Or agreed to pay, a oOn1idaratioB
for the right to pertlolpate theraon. 28
Tax. Jur. p. 409, 880. 2, and oases olted
in the Betas.*
Tha Federal Ciroult Court of Ap eala in the
oase of Paek vs. United States, 61 F. (2d 7 973. ha8
given the r0ii0wi~ dafInItIon 0s a lottery:
*A schema for tha dIatrIbutIon 0s
prizes or thInp,s of value by lot or
ohanoe among persons who hsve paid or
agree to pay a valuable oonsIder~tion for
the ohanca to obtain a prize. And again:
A sohwne by ?&Ioh I raeult Is reaohsd by
some aotlon or means takan, iB whloh re-
sult man’s oholce or till har no pert,
nor can human reason, . . . sagacity or
design ensble him to know or detsrmIne
. . . until the same has barn aoacrnplished.W
Eonorabla Andrew bttOB , ps~a 5
Vndtr your statamant Of the fact8 48 quoted
by us, two of the elements of a lottery are clearly
dlsaernlbla, 1. a., a prlra In money or thing or
vslua, end papsat 0s a ooBr.ideration for tb ohanoa
to partlolpats In the pro&yam through attendance et
the theatra, paying SB admIssIoB price therefor.
?:hether the llament of chance Is 8uffIoItntly est4b-
lIshed Is a more perplexing problem ,
In the 0080 0s Boatwright v. state, ii8
Tex. Cr. R. 381, 3e 8. w. (24) 87, the Court or
Criminal Appeals held that a punoh board wherein were
pleoad different checker problems, the earns to be oom-
pleted by the. pertlclpent efter paying a Set for the
prIvIlege of playlw, did not constitute a lottery,
even though prlzes were awarded those working out the
best solution. We quota from the oplnlorrr
*An;7 sohame for the di8trIbUtIOB
~of prizes by ohanoa, under our etatuta,
Is a 1otterJ. paaen v. State, 93 Tex.
Cr. R. 173, 246 5. F. pl,; Stawer v.
State, 107 Tex. Cr. R. 574, 298 S. K. 906.
The phrase ‘earns of oh4Bca’ Is defInad In
27 Corpus Jurls at page 968, as SollOws:
*It Is a earns detrrmInad entirely or In
psrt by lot or mere luck, and In which
judgment, praotlce, skill or adroitness
have honestly no orrioe et all, or are
thwertad by ohanoe; a gas8 In ahloh
haaard entirely predomInatss. @
%Ithout approving In Its entirety
the foregoing dafInItIon when oonsIdared
In oonneotlon with our statute denounolng
lotteries, It Is observed that the success
of the player In the earna under considera-
tion dapends upon praotlca, lr p er Ia n0e,
or skill, Other than the ordinary ohenoa
or oontInC.cnor which is Involved iB prac-
tically every humen endeavor, the element
or chance Is not prdent, Tha prize Is
drawn ae a rerrard for the skill of the
91 awl and not br ohrnoe. The prsdomlnant
llaaent In the game Is one of skill. . .I
.
iwo
Eonorablr Androw Patton, psgr 6
SOI also MoFsr i. Statr, 46 Tax. Cr. R.
489, 81 9. 1. 741; Roit v,. Dally Craphlo, 230 H. Y.
s. 360, 103 A. L. R. 870.
Fros a oarrful study 0r tbr 6rolrlonr aa
lqlied to
thr faOt8 prsaantrd by you, we oorxludr
that the m6lo program doer not rlolatr thr lottery
law oi thlr Stat@.
Trutatlng that we ham aetlsfaOtOrl1~ anewerd
your lquiry, we are,
Yours v6ry truly
A
Anslrtant