Untitled Texas Attorney General Opinion ( 1940 )

Honorable Thomas R. Chandler
County.Attorney
Robertson County
Franklin, Texas
Opinion No. O-1058
Re: Whether or not
operation of
“Mo,ovy-Award”
plan by looal
theatre constitutes
Dear Sir: a lottery
We have for reply your letter of January 24, 1940, requesting
the opinion :of this department as to whether or not the opera-
tion of a “Moovy-Award’ scheme by a local theatre constitutes
a lottery and as such stands condemned by the Penal Code bf
this state. The plan is described In your opinion to Mr. George
Chatmos, owner of the Chatmos Theatre, Hearne, Texas, as follows:
“Approximately two weeks ago, you re-
quested me for an opinion on whether or not a
copyrighted plan, known as ‘Moovy-,LwAP~,’ would
come within the prohibition of our lot,tery
Statutes. At that time you left me the pro-
posed rules and regulations governing such
plan or contest and a sample sealed envelope
containing the question or problem to be
solved by a person or persons who ‘mayhave had
his name signed to same, if such person is
present or whose presence can be obtained, when
same has been drawn on some night to participate.
“Said rules and reguktions are as follows:
“(1) Each patron may sign only one sealed
entry blank (envelope.)
“(2) Each entry blank (envelope) must be
signed In the presence of a theatre attendant and
must not be opened. A broken seal will serve to
disqualify the person whose name appears on this
entry blank.
Hon. Thomas R. Chandler, Page 2 (0-1858)
“(3) Each entry blank contains a concealed
question or problem.
"(4) All signed entry blanks are kept In a
locked container.
“(5) On the night designated by this theatre
as 'MOOVY-AWARD NITE,!:the container holding the
signed entry blank will be unlocked and opened
and some designated person will select at random
one or more of the entry blanks in accordance
with the number of awards to be made on that
nl.gi;
I.
“(6) If the person whose entry blank is
selected Is present, or at any other place so
designated by the theatre and can correctly
answer the question or problem contained in their
signed entry blank within a ,reasonablelength of
time they will receive the award that has been
announced In advance by the theatre. All ques-
tions must be answered to the satisfaction of the
judge or judges whose decision shall be final.
“(7) Should the participant fall to answer
t&e question or problem correctly to the satls-
faction of the judge or judges they shall not
receive the award. Awards are to be made solely
upon skill and knowledge.
“(8) If the participant whose entry blank
is selected falls to answer within a reasonable
time when their name Is called then that entry
blank is to be placed back unopened in the
container.
cases where the entry blank
has b``~)op~e? whether the question or problem
was correctly a;swered or not, then this'blank
shall be destroyed and in order that participant
may enter again it will be necessary for him to
sign another sealed entry blanL.
:dition to the above printed rules and
reg‘rlp -'ou inform me that any and all persons
m.- In the contest, by only signing
_i ; address on the sealed envelope
.i3-
I;;>~-
z..ig,or being required, to pay any
fee or cna-lderation therefor; and that when, and
Hon. Thomas R. Chandler, Page 3 (0-1.858)
If, said name Is drawn that It would not be neo-
essary for the person named to be a paid customer
of said theatre on the night of the drawing or at
any other time ln order to qualify to enter the
oontest.~ Suoh person named on the envelope drawn3
if present or on the outside of the theatre when
his name la oalled, and answers by appearing within
a reasonable time thereafter, may participate.
"You also inform the writer that a prize
or prizes will be awarded the person or persons
solving said question or problem on the night
In question; said prize or prizes shall be made
in money or merchandise.'!
Section 47 of Article III of the Constitution of
Texas,~i:reads':!
'!TheLegislature shall pass laws prohibiting
the establishment of lotteries and gift enter-
prises ln this state, as well as the sale of
tickets In lotteries, gift enterprises or other
evasions Involving the lottery principal, estab-
lished or existing, ln other states."
Pursuant to such command the Legislature passed
Article 654 of the Penal Code, which reads as follows:
"If any person shall?establlsh a lottery
or dispose of any estate, real or personal, by
lottery, he shall be fined not less than One
Hundred ( 100) Dollars nor more than One
Thousand f$1000) Dollars; or If any person 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 ($10) Dollars nor more than
Fifty ($50) Dollars."
In City of Wink vs. Griffith Amusement Company, 100
S. W. (2d) 695, (Tax. Sup. Ct.) the court said:
"The State Penal Code does not define a
lottery, but our courts have interpreted it In
accordance with public usage, to mean a scheme
or plan which provides for a distribution of
prizes by change among those who have paid, or
agreed to pay, a consideration ,for the right to
participate therein. 28 Tex. SW. p. 409, Sec.
2, and cases cited In the notes."
Hon. Thomas R. Chandler, Page 4 (O-1858)
.
This
.
department
^ . , has. .on
, several
- occasions
. .--.passed
.
on tne questlon or wnat constitutes a lottery, nolalng In
(1) OpinlonO-428 to Honorab&Clint A.
Rarham, County Attorney, Erath.County, dated
April 26, 1939, that a number system used by a
theatre'whereeach seat In the theatre ls'ntun-
bered and a ticket is seleoted or drawn from a
number,of tickets containing all the numbers~
on the seats and a,money award or other thing
of value ls,given to the person sitting In the
seat that.has a corresponding ~numberwith the
number drawn Is a "lottery" and the operation
thereof Is a violation of Article 654 of the
Penal Code.
(2) Opinion O-967 to Honorable Tom Sea
County Attorney, Potter County;dated June 1f?,
1939, that a scheme whereby, in substance, a
'theatre owner gives a prize to some patron of
the theat& present after a``&%i@ngfrom which
some patron's automobile llcense'number may be
selected, under the facts presented, constl-
tutes,a violation of,the lottery laws of this-
state.
(3) Opinion 0-Lfv$,to Honorable Robert
S. Cherry, County Attdrney;~Rosque County,.: ',
dated August 10, lgS$ ~that it is a violatlon~
of the law for the merchants of a given town
or community to give their'customers tickets.
with each'purchase of merchandise from them,
which tickets are good for chandes upon merr
chandise or money given away at drawings, held
periodically Inthe said town or tiommun!ty"
(4) Opinion O-1200~to Honorable Robert,F.
Peden, Jr., County Attorney, Matagorda County,
dated August 12, ~1939, that the "Aces Quiz
Night" scheme or plan (under the facts stated'
to this office) is a "lottery" and in vio-
lation of Article 654 of the Penal Code of this
state.
(5)~ Opinion 0-1329~to Honorable JacksBorden,
County Attorney, Parker County, dated~,
September 8,.
1939, that a sch~emewhereby, in substance, a theatre
buys the~fingerprlnts o'fa oltizenof the.community
Hon. Thomas R. Chandler, Page.' (o-1858)
by selection of one fingerprint from the files
of the theatre, Is a violation of the lottery
laws of this state..?.
".
(6) Opinion 0-1336 to Honorable Paul T.
Halt, Count Attorney, Travis bounty, dated
September Iti,,,1939,that a soheme whereby, ln
substance, a suit club" gives credits In
trade to winning contestants for completing
a sentence, etc., constitutes a violation of
the lottery laws of.~thl‘rj%%t⪙
(7) Opinion O-1789 to Honorable Andrew
Patton, District AtCorney, Dallas County, dated
December 22, L@s, that a theatre program
featuring the "Doctor I. Q." radio broadcast
over a network is not a violation of the lot-
tery statutes of this state.
In the case of Griffith .&@sem@nt~Company vs.
Morgan, 98 S. W. (2d) 844, it was held that the elements
essential to constitute a lottery are (1) a prize In money
or thing of value; (2) dlstrlbutlon by chance, and (3) pay-
ment, either directly or lndlreotly, of a valuable considera-
tion for the chance to win the prize. See also City of Wink
vs. Griffith Amusement Company, supre; Featherstone vs.
Independent Service Station Association, 10 S. W. (26) 124;
Peak vs. United States,::.$l~ %ed. (2d) 973; Grant vs. The
State, 112 S.W. 1068. Instate vs. Randall, 4: ~.&Tex. 296,
that
and Holman vs. The State, 47 S.W. 850, It was
any scheme for the distribution of prizes by chance Is a
lottery. Accordingly, the "Bank Night" scheme (City of Wink
vs. Griffith Amusement Company, supra) the "Buck Night?
scheme (Robb and Rowley, et al vs. The State, 127 S. W. (2d)
221), and the "Noah's Ark" scheme (Smith vs. The State, 127
S. W. (2d) 297) have all been held to be lotteries.
We take the liberty of quoting again from your
opinion to Mr. Chatmos as follows:
"As to the seoon&lement In the crime
of lottery, that Is, the.zward or dlstrlbu-
tion or the prize or prizes by chanoe, will
say that the act of drawing of the sealed
envelope upon whloh 1s subsorlbed the name of
the 'lucky' person, and his address, is In
Itself a chance, unless the same Is offset by
the 'chance' of the named pe$s,o,n,!s
presence
and solve the question or prdbiem contained
in the sealed envelope bearing suoh persons name.
Hon. Thomas R. Chandler, Page 6 (o-1858)
"As has been stated by your and accord-
ing to the rules and regulations stipulated
the second element of the crime of lottery
is not present, In that the prize Is awarded
and made solely upon the knowledge and skill
of the person whose name appears on the
sealed envelope In the solution of the ques-
tion or problem therein contained, even
though the person's name was 'selected,by
chance, that is, by drawing suoh envelope
from a container." (Citing Boatwright v.
State, 38 S. W. (2d) 87.)
We regret that we cannot concur with you In this
position, and this 'departmenthas under similar facts
ruled adversely to yourcontention. In Opinion O-54 to
Hon. Renfro Speed, County Attorney, Freestone County,'~
Falrfleld, Texas, dated November 21, 1939, the theatre
selected a patron as "movie critic" by a drawing, and
his duty was to attend and crlticlze'pictures for which
he was paid a cash award. In that opinion it was held that
the plan constituted a lottery, and we quote,from that
opinion as follows:
"It may be contended by some thatthe
theatre operator has conceived an effective
escape from the lottery laws by providing
that the person designated 'movie crltlC!
must actually attend the pictures and must
actually criticize, for which criticism he
wlll~be paid the grand award In cash. We do
n&believe the Legislature intended to.
enact a statute which might be evaded by such
subterfuge, and this department has heretofore
ruled adversely to similar contentions-~ In
Opinion O-1329, dated September 7, 1939, the
theatre operator sought to sid~estepthe lottery
by 'purchasing' the fingerprin~tof the winning
patron, yet under the particular facts the scheme
was held to constitute a lottery. Likewise, in
opinion 0-1336 of this department dated September 18,
1939, in which a 'suit club' was held to constitute
a lottery, the fact that contestant was c.ompElled
to write a twenty-five word statement telling why
he liked the brand of clothes in question availed
the proprietor nothing in escaping the condemna-
tion of Article 654 of the Penal Code."
Hon. Thomas R. Chandler, Page 7 (o-1858)
Under the facts presented In opinion O-1200 of
this department to Honorable Robert F. Peden,.Jr., County
Attorney, Matagorda County, Ray City, Texas, dated August 12,
1939, the theatre oonduoted a 'quiz nlght" and patrons
reoeived prizes dependl?g"upon~thelr ability to answer
certain questions, the patrvns reoelvlng the questions
entitling them to awards if correct enswers were given, as a
result of ohanoe. This scheme was held to oonstltute a
lottery.
The facts Involved inopinion O-1789 of this
department to Honorable Andrew Pa&on, District Attorney,
Dallas aountyZ~.~Te~as,dated Deoember 22, 1939, are dls-
tingulshable. There It was held that a theatre program
featuring the "Dr. I. Q." radio broadoast over a radio
network is not a violation of the lottery statutes of this
'State.. However, in that situation, all patrons of the
theatre were entitled to participate by answering ques-
tions If they desired, and no one was seleoted to par-
tloipate as a result of drawings by lot or chance. The
chance element was not present.
Likewise, we believe that the case of Roat-
wright vs. State, 118 Tex. Cr. R. 381, 38 S. W..(2d) 87,~
olted In your opinion, Is dlstlngulshable from the soheme
presented in your letter. In that oase the Court of’
Criminal Appeals held that a punch board wherein were
placed different oheoker problems, the same to be com-
p&eted by the participant after paying a fee for the
'privilege of playing, did not constitute a lottery, even
though prizes were awarded those working out the best
solutions. However, the court emphasized the fact that the
,only element of chanoe there lnvovled was the nature of
the checker problem to be drawn. There any person might
participate in the geme and every person who purchased a
ohecker problem stood on an equal footing. We believe
that the right to the opportunity of answering the ques-
ti-ens-orsolving the problems under the faots involved-in
gcur:.l.@tter
Is a valuable right which aoorues to a.pat%n
only. aaa result of chance,--that is, by having his sealed
eirtryblank drawn and selected. Thus, the dlstrlbutlQn of
the prize to suoh Portunate.-QW%%~*ls a result of-$h"cice.
We conour with you In the belief.pxpressed in
your opinion that the mere fact that a person may partlol-
pate although he Is not present In the theatre If his name
Is aalled, and he presents himself within a reasonable
time, is not sufficient to relieve the plan of the third
element of a lottery; namely, the furnishing of oonsideratlon.
Ron. Thomas R. Chandler, Page 8 (O-1858)
We quote from the opinion of judge Hawkins in
Cole vs. State (Ct. Cr. App.), 112 S. W. (2d) 725, as
follows :
"The undisputed facts proven by the
State show that no one present at the
theatre on 'Rank Nite' was entitled to
have their name or number participate In
the drawing for the prize unless their name@::1
were registered in the 'Bank Nlte Rook,'
for which registration no charge was made.
Those absent from the theater on said night
but whose names were likewise registered
without charge also participated in the
drawing. So It will be seen that no direct
consideration passed from the participants
to appellant. It occurs to the writer that
the vice in the scheme--the things which make
it a subterfuge--are the following: The party
who is in the theater Is immediately present
to identify himself If perchance the number
corresponding to the party's name on the
book be drawn. If a number be drawn which
corresponda:&o the name of some one not .in
the theater, It appears to be a remote pro-
bability that such a one will be able to appear
in the theater and identify himself within the
short time allowed, and no possibility for such
Identification If the holder ~of the number
drawn is not in the immediate vicinity of the
theater. Therefore, it appears plain that
those who have paid admission to the theater are
in a more favorable position to claim the
prize than one on the outside, although the
names of both have been registered in the book
without charge. The practical working of the
scheme is bound to be known to all patrons of
the theater, If the prize would have gone to
some one not present but remains unclaimed, it
Is pyramided on the amount of the prize for the
next 'Rank Nite' drawing. The conditions
naturally exclts or increase a desire on the
part of those eligible by reason of their
names being registered to pay the admission
price to the theater in order to be more
favorable situated to claim the prize on a
!Rank Nite' drawing, and in this way an indirect
consideration does move from them to the operator
of the scheme and furnishes the third indispensable
.
Hon. Thomas R. Chandler, Page q (O-1858)
element of a lottery."
We believe that the essential elements of a
lottery are presented by the facts set forth Inyour letter.
The theatre provides merchandise or money for those patrons
fortunate enough to have their questions selected, and who
answer them correctly. The prize element is present.
Moreover, a drawing or selection of the names of patrons
fortunate enough to partiolpate Is made and the chance
element oocurs. The third element neaessary to constl-
tute a lottery, namely, the furnishing of consideration
directly or Indirectly by those participating, is also
present. See Cole vs. The State, supra.
Consequently, It is the opinion of this depart-
ment, and you are respectfully advised, that a theatre
operator conducting the scheme set forth In your letter
would be guilty of operating a lottery as prohibited by
Article 654 of the Penal Code of Texas, 1925.
Yours very truly
AT-J!CRNEYQENERALOFTEXAS
Walter R. Koch
Assistant
By
J'DS:LW James D. Smullen
APPROVED FEB. 2, 1940
ATTORNEYQENERAL OFTEXAS