Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY’GENERAL OF TEXAS
AUSTIN
Honorable Zcnfro speed
county P.ttoriley
Freestons County
Fairfield, Texas
Dear Sir:
Thank you for
letter of Novenber 14,
partwnt as to,whethor
stitutes a lottery and
Fenal Codo of this
vi&5 a fund
names on a book or
is designntwl as
s :r;ovieoritiot is t,hen
it is his duty to attonil
Texas reads:
The Legislators shall ``lsslnws prohib-
ltinx the ootnblisho.ontof lottccias and gift
cntorprisos in this state, as ~011 as tho sale
of tiokets in lot”,erios,elft ontoryriscs or
Honorable Renfro Speed, Page 2
other evasions,Involving the lottery principal,
astablished or existing, in other statesaw
Pursuant to such Oomand the Legislature passed
Article 654 of the Tenal Code, which reads as follovrs:
*It any person shall establish a lottery
or dispose of any estate, real or.personal, by
lottery, he shall be fined not less than Cne
Hundred ($100) Dollars nor olore than One Thou-
sand ($1000) Dollars; or if any person shall
sell, offer for sale or keep for sale any tick-
ets or part tickets in any lottery, h8 shall
be fined not less than Ten (ala) I)ollarsnor
mre than Fifty ($50) Dollars."
In City of Wink vs. Griffith Amusenient.Company,
100 9. w. (26) 695, (Tex. sup. Ct.), the OoUrt said:
"The,State Penal Code does not define a
lottery, but our courts have interpreted it in
aooordanoe with publio usage, to mean a sohen;a
ox plan which provides for a distribution of .
prizes by ohance among those !vho have paid, or
agreed to pay, a consideration for the right
to participate therein, 28 Tex. Jur, p. 409,
Sea. 2, and cases oltod in the notes,”
This departffient
has on several oocasions passed
on the question of what constitutes a lottery, holding in
(1) Opinion .O-428 to Honorablo Clint A.
Earha& County Attorney, Rmth County, dated April
26, 1939, that a number system used by a theatre
where each scat in the theatre is numbered and
a ticket is seleotea or drawn from a number of
tickets containins all the nuaiberson the seats
and a money'award or other thing of value is given
to the person sitting in the seat that has a cor-
responding nuruberwith the number drawn is a "lot-
tory" end the operation thereof is a violstion of
Article 654 of the Fens1 Code.
(2) Opinion Q-967 to Honorable T0i'mSeay,
County Attorney, Totter County, dated June 14,
1939, that a scheme vihereby, in Gubstnnce, a
theatre owner gives a prize to soI;;patron of
‘.*
Honorable Renfro Speed, Page 3
.x?oz
the thsatre present after a drawing fron which
.soffie
patron’s automobile license number may be
selected, under the Saats presented, constitutes
a violation of the lottery laws of this state.
(3) Opinion O-1174 to Ronorable Robert S.
Cherr/i County .ittorney,Rosque County, dated
August 10, 1939, that it is a violation of the
law for the prchants of a given town or com-
munity to give their customers tickets with each
purchsse of merchandise from them, vrhich tickets
are good for chances upon merchandise or money
given away at drawings, held.periodiaally in
the said town or ~cormunity.
(4) Opinion O-1200 to Ronorable Pobert a.
Peden, Jr., County Attorney, hatagorda County,
dated August 12, 1939, that the “Aces quiz Right”
OS1 scheme or plan (under the facts stated to ‘this
offioe) is a “lottery” and in violation of hr-
tiClo 634 of the Penal Code of this state,
(5) Opinion O-1329 to Honorable Jack Borden,
County Attorney, Parker County, dated ileptomber .
8, 1939, that a scheme whereby, in substanae, a
theatre buys the fingerprints of a GitiZ8n of
the community by selection of one fingerprint
from the files of the theatrs, is a violation
of the lottery laws of this s’tate.
: li3
(6) Opin.ionO-1336 to Honorable Taul TV.
Halt, County Attorney, Travis County, dated Sep-
tember 18, 1939, that a scheme whereby, in sub-
statice,a "suit club” gives credits in trade to
winning contestants for completing a sentence,,
etc., constitutes a violation of the lottery
laws of this state.
In the case of Griffith Amusement Company
98, RorCan, 98 2. iYe (2d) 844, it was held that the ele-.
ments esGentia1 to oonstitutc a lottary are (1) a prize in
money or thing of value, (2) distribution by chance and
(3) payment, eitker directly or indirectly, of a valuable
consideration for the chance to win the prize, See also
City of Wink vs. Griffith Amusement Company, oupra; Feathar-
stone vs. Independent Service Station Association, 10 :. ?i.
(26) 124; ?eak vs. United States, 61 Pod. (2d) 973; Grant vs.
.
Honorable RenSro Spaed, Pa&e 4
The State, 112 S.W. 1068. In State vs. Randall;41 Tex.
296, and Holman vs. The State, 47 3.,X’.850, It was held
that any acheme for the distribution of prizes by chance
is a lottery. Aocordiogly, the “Rank Night*Vscheme (City
of Wink VS. Griffith Amusement Company, oupra), the “Buck
Night *Isohe.me (Robb and Rowley, et al vs. The State, 127
S. W. (26) 221), and the “koah’s Ark” soheme (Smith vs.
The state, 127 9. IV. (2d) 297) have all been held to be
lotteries.
?{a believe that the essential elements of a lot-
tery are presented by the facto set forth in your letter.
The theatre provides a fund or &; a drawin is made and
the chanc,eelement occurs. Eoreover, the patron must be
presm the theatre When his neme is drawn in order to
be.designated “movie oritio*’ (and so indireotly furnishes
oonslderation for the chance. See City of wink vs. Griffith
Amusement Company, supra), and, thereby becomes eligible for
the “Golden l;“leece’* # namely,~passes to the movies and a cash
a?vard.
,
It may be contended by some that the theatre op-
erator has conceived an effective escape from the ,lottery
laws by providing that the person designated “movie critic*?
must aotucillp attend the pictures and must actually criti-
Giz:o,for %hich criticism he will be paid the grand a-:;ard
in oa8h. ‘&.‘a db not believe ,tho Legislature intended to en-
act a statute which might be evaded by such subterfuge, and
this department has heretofore ruled adversely to similar
GOntSntiOnS. In Opinion 0-132~9,dated September 7, 1939, the
theatre operator sought to sidestep the lottery principal by
npurchasing” the Singorprinc OS the winning patron, yet under
the part.icularfaots the scheme,was held to constitute a
lottery, .,Likeu;lse, in opinion O-1336 of this department,
dated Bptember 10, 1939, in which a “suit club” was held
to constitute a lottery, the fact that contestant was corn-.
pelled to write a twenty-five word statement telling why he
liked the brand of clothes in question availed the proprie-
tor nothing in escaping the condeainationof Article 654 of
the Penal Code.
Consequently, it is the’dpinion of this depart-
ment, and you are respaotfully advised, that a thoatre opera- .,
tar conduoting the scheme set forth in your letter would be
Eonorable lW.Cro Speed, fjage5
guilty of operating a lottery a8 prohibited by Article
654 of the Penal coae of Texas,,1925,
Very truly yours
ATTORNSY GEXGAL OF .T%IAS
*
APPROVEDNOV 21, 1939
xLf-LA4.M
ATTORNEY GXNERAL OB'TEXAS
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