Untitled Texas Attorney General Opinion ( 1945 )

Honorable W. J, Townsend
County Attorney
Angclina County
Lufkln. Texas
Dear Sk: Opinion No. O-6007
Re: Does the scheme for the dls-
positlon of an automobile by
chance where tickets are aold
for $1.00 each, constitute a
lottery? Ia a lottery aLgame
that the State 1s authorixed to
suppress by. injunction under
Article 4667, Revised Civil
Statutes?
Your reqwet for an opinion relative to conductlng a lottery haa
been received and car,efully considered by this department. We quote
portlona of your letter as followa:
‘I begleave to advise that a group of clttzena of this county.
in an effort to raim rome money for a benevolent purpose, are
seeking to dispose of an lutomobU8 by means of a lottery ln aelllng
tickets for a drawlng. Thr lucky number is to receive the automo-
bile. The tickete for the drawtng sell for approxtmately $1.00 each,
which ticket so purchased entitles the holder thereof one chance at
said drawing or lottery. I have advised these promoters of this
scheme that the ram. Ls unlawful, but apparently they do not agree
with my conatructioa of the law. Hence, I am nubmltting the matter
to you asking your oplnlon governlug the facta.
“* * *
‘Please give me your optnion on these questlona:
._ .-
Honorable W. J. Townsend, Page 2, O-6887
‘1. Is the scheme for the disposition of an automobile by
chance, where tickets are sold for $1.00 a piece, entitling the
holder thereof of a chance for the possession of the automobile
at a drawing to be held later a lottery?
‘2. Are those conducting the lottery, as well as those
selling tickets therefor, criminally Hable for conducting a lot-
kry 7
‘3. In addition to the criminal prosecution of those conduct-
ing a~lottery. csn an injunction sutt be lawfully brought to enjoin
the conducttng of said lottery, if any?
‘4. Can a suit be brought dtrect for the confiscation of the
automobtle as can be done for the confiscation of fixtures used in
a gambling hall? In other words, can a confiscation suit be brought
for the confiscation of the automobile which is being used for an
unlawful purpose, to-wit: the dtspositlon of the same by chance
or lottery 7”
Section 47 of Article III of the Constitution of Texas reads as fol-
lows:
‘The Legislature shall pass laws prohibi.ting the eskblish-
ment of lotteries and gift enterprises ln this State, as well as the
sale of ttckets In lotkries, gift enterprises or other evasions ln-
volvlng the lottery principle, establlshed or existing, in other,
states.”
Under the above mandate the Legislature passed Article 654,
Penal Code of the State of Texas, providing that:
“If any person shall establish a lottery or dispose of any
estate, real or pers,onal, by lottery, he shall be fined not less
than One Hundred ($100) Dollars nor more than One Thousand
($1.000) Dollars; or if any psrson shall sell, offer for sale or
keep for sale any tickets or part tickets in any lottery, he shall
be fined not less than Ten ($lO).Dollars nor more than Fifty
($50) Dollars.”
. . ‘_
Honorable W. J. Townsend, Page 3, O-6887
The Court of Crlmlnal Appeals held in the case of Cole vs. State,
112 S.W.2d 725, that such a scheme as you describe in your letter is in
violattoa of the article quokd above. In this case Judge Hawkins had this
to say and we quote from his opinion as follows:
-There is not now, nor ever has been, an attempt in this state
to define by sktuk what constitutes a lottery. The term is defined
by the statutes of only a few of the states. Corpus Juris, vol. 38,
p. 288, note 10, lists only four, but says ‘that such definitions seldom
vary in substance from those established by the courts.’ Having no
definition in our sktuk. we must resort to the meaning given the
krm by popular usage as determined by the vartoua courts. When
that is done, lt is clear that three things must concur to establish
a thing as a lottery: (a) A prize or prizes; (b) the award or distribu-
tion of the prise or prizes by chance; (c) the payment etther directly
or tndtrectly by the partktpants of a consideration for the right or
privilege of participating. Texas Jur ., vol. 28, p. 409. § 2, deduces
from pur own cases the rule stated, and Lt appears that in every case
from our own court where a scheme has been denounced as a lottery
that the three elements mentIoned are shown by the facts to have been
present. See Randle v. Skte. 42 Tex. 580; Grant v. State, 54 Tax. Cr.
R. 403, 112 S.W. 1068; 21 L.R.A., N. S.. 876, 130 Am. St. Rep. 897,
16 Ann. Css. 844; Prendcrgsst v. State, 41 Tex. Cr. R. 358, 57 S.W.
850; Holeman v. Skte, 2 Tex. App. 610, 28 Am. Rep. 439, and other
Texas cases cikd in Texas Jur.. suprs. The same rule demanding
the presence of the three elements named will be found stated Ln 17
Ruling Case Law, p. 1222, and 38 Corpus Juris, p. 286, with Lnnumer-
able supporting cases clkd under the text in each of said volumes.”
Also see Smith vs. State, 127 S.W.2d 297; City of Wink vs. Grifftth
Amusement Go., 1002 S.W.2d 695; and Robb & Rowley United v. State, 127
S.W.2d 221.
The scheme or plan, as described in your latter, apparently is in
violation of Article 654, Penal Code of Texas, in that all three of the ele-
ments necessary to constltuk s lottery are present. Each person psrtici-
eating ln the schema is required to purchase a ticket for the drawing. The
tickets are priced st one dollar ($1.00) each. The purchase of a ticket 1s
a consldsrstlon for s person to participate in the drawing. All persons
. . .-
Honorable W. J. Townsend, Page 4, O-6887
holding tickets will not partictpak I.n the prize since the prize will be
awarded to the holder of the ticket that corresponds to the one that ts
drawn and this fact establishes the element of chance. The automobile
is the prize that is awarded the holder of the lucky ticket.
As to whether or not those conductl.ng the lottery are equally
guilty tn the commission of the offense as well as those selling the lot-
tery tickets, the following articles of the Pen,al Code of Texas are quoted:
“Article 65. All persons are principals who are guilty of
acting together in the commisston of an offense.”
‘Artkle 66. When sn offense is actually committed by one or
more persons, but others are present. and knowing the unlawful Ln-
tent, aid by sets or encourage by words or gestures, those actually
engaged In the commission of the unltiwful act, or who. not being sc-
tually present, keep watch so as to prevent the inkrruptton of those
engagCd in commlttlng the offense, such persons so atding, encoursg-
ing or.keeplag watch are prtnctpal offenders.”
‘Article 67. All persons who shall engage in procurtng aid,
arms or means of sny kind to assist In the commission of sn offense,
while others are executing the u.nlawful act, and all persons who en-
deavor at the time of the commissLon of the offense to secure the
safety or concealment of the offenders are principals.”
‘Article 69. Any person who advises or sprees to the com-
mission of sn offense and who is present when the same is commlt-
ted is a principal whether he aided or not In the tlle&l~act.”
In view of the above statutes, there can be no doubt as to the guilt
of the persons conducting the lottery. The persons responsible for the
scheme, purchsslng the automobUe, having the tickets printed, distrtbutlng
the tickets to other persons for sale and actually conducting the drawing are
princtpal offenders in the commlsslon of the offense as well as persons
selling the tickets, and are amenable to prosecutton for the violation of
Article 654, Penal Code of Texas. From Texas JurLsprudence, Vol. 12,
page 334, we quota:
.If parties have a common intent or previously formed design
to commit an offense and act together in the commission of the same,
Honorable W. J. Townsend, Page 5. O-6887
they are and must be principals, and equally so whether the act of the
coprincipal brings him under one or the other of the various methods
specified in the code whereby one may become a principal. A person
who commits an offense while acting as agent for another, and with
knowledge of the latter’s cri,minal intent, or who is present when an
offense is committed and assists in its commission, is a principal.
Also where* or more persons combi.ne or conspire to commit a
crime, all who are acting together and doing their parts in the execu-
tion of the common design at the time when the offense is committed
are principals, whether they are actually present at the time and place
of its commission or not; and all continue to be principals as long as
any portion of the object of the common design remains incomplete,
or, in other words, until the full purpose and object of the conspiracy
is consummated and accomplished.”
We now pass to your third question which is, “Can an injunction suit
be lawfully brought to enjoin the conducting of said lottery, if any?” This
identical question was brought before the court in the cases of State vs. Robb
& Rowley United, 118 S.W.2d 917, and Robb & Rowley United, Inc., et al vs.
Skk, 127 S.~W. 2d 221. In both of these cases it was held that lotteries are
a species of gaming and nuisances which the State is authorized to suppress
by injunction under Art. 4667, Revised Civil Statutes.
In dealing with your fourth question, we turn to Article 636, Penal
Code of Texas, which we quote:
‘It shall be the duty of every sheriff, or other peace officer by
virtue of the warrant authorized by this chapter to seize and take into
his possession all gaming tables, devices and other equipments or
paraphernalia of gambling houses, the existence of which has come to
his knowledge and to immediately file with the justice of the peace,
county judge, or district judge, a wri.tten list of the property seized
designating the place where same was seized, and the owner of same,
or the person from whom p,ossession was taken. Thereupon said jus-
tice of the peace, county or district judge shall note the same upon his
docket and ksue, or cause the clerk of the court to issue a written
notice to the owner or person in whose possession the articles seized
were found, commandlng him to appear at a designated time, not earlier
than five days from the service of such notice, and show cake why such
articles should not be destroyed. If personal service cannot be had upon
,
Honorable W. J. Townsend, Page 6, O-61387
the person to whom sams Is directed, a copy of said notice shall be
posted for not less than five days, either upon the court house door
of the county where the proceedings are begun or upon the building
or premises from which the property seized was taken.”
We are of the opinion that the automobile, which is the prize to be
awarded, is not property subject to confiscation under the provisions of the
above article. In support of our contention, you are referred to Hightower
v. State, 156 S.W.2d 327; Davis v. State, 165 S.W.2d 757; and Collison
v. State, 146 S.W.2d 460.
,
Trusting the foregoing answers your inquiries. we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
Louts w. Woosley
Assistant
ATTORNEY GE‘NERAL
LWW:IJ APPROVED
OPINION