Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
QRILO c. UAWN
ATramluv
.‘“anLL
Eon. Jack Borden, County Attorney
parker County
Ueatherford, Texas
Dear Sir:. Opinion Ro. Q-
Re: Does a pl eby a theatre
of a cItLzen
of the Constltu
Pour. request
tlon has been received
The plan vhere uys the fingerprintof a
citizen of the co d of operatlon Is sub-
stantiallyas fol
In'the front lobby
graph cards are kept
ngerprlnt Ink vhere
rd, with their address, and
the place provided for it.
le with other cards already
The people signing these
to buy an admlsslon ticket nor
order to sign and fingerprint..
gnated night set aside each veek by the
GERPRINT NIGRT, the Pile with all:the
erprinted cards are taken to the stage
re vhere someone Is selected from the
In case of some one being famlllar with fln-
elng appointed to make a selectionof one
fingerprinthe thinks is the best or has some particular
characteristiche favors. The flngerprInt;beingon the
back side of the card and the name on the front side
shows that.thIs selection Is made from the fingerprint
only and not the individualname. This card Is then
handed to a second person on the sta$e vho turns the
card over and calls the name of the autograph appearing
thereon. If this person whose name Is called comes for-
5.54
Bon. Jack Borden, Page 2
ward to the stage within three minutes from the time
the name 18 called and Identifieshis autograph and
f'lngerprint,they are then paid the weekly amount
posted by the theatre for the purchase of th&,finger-
print snd.they are requested to sign a card giving the
theatre the right to purchase this fingerprint and use
It for their files only except In the case where it may
be necessary to use for IdentlfIcatIoncaused by some
accident or otherwise. If'thls person vhose‘n'+e vas
called Is not there, within the designated time, to
identify his autograph,fingerprintand sign the card
to permit the theatre to make the purchase as stated,
this veekly amount set aside by the theatre to purchase
the fIngerprIntIs carried forward to the next week and
then at that time It 1s added to the regular weekly
amount set aside for each week and so on until a purchase
Is actually made of a fingerprint.
"The theatre has the right to hold all fingerprints
given In their files at the theatre except as stated above
In case of accidents, and the right to use those purchased
for educationalpurposes only.
"Uhll&en under 14 years of age do not participate.
"Each person who sells the right to use their flnger-
print under this method shall sign the card giving the
theatre the right to purchase same and place It In the
files vlth the others purchased and a purchase cennot be
msde If this card Is not signed at the proper time."
Article 654 of the Penal Code reads as follows:
*If any person shall establish a lottery or dispose
of aw estate, real or personal, by lottery, he shall be
fined not less than one hundred nor more than one thousand
dollars; or if any person shall sell, offer for sale or
keep for sale any ticket or,part ticket In any lottery,
hel;z;;lmbe fined not less than ten nor more than fifty
.
We quote from Tex. Jur., Vol. 28, p. 409, as follows;
"The term lottery has no technical sIgnlfIcatIonIn
the law, and since our statute does not provide a definl-
tlon, Its meaning must be determined from popular usage.
According to that test a lottery 1s a scheme for the dis-
tribution of prizes by lot or chance among those who have
paid or agreed to pay a considerationfor the right to
participate therein, or the distributionItself. . . ."
555
Eon. Jack Borden, Page 3
See the oases of --
State vs. Randle, 41 Texas 292;
Featherstonevs. IndependentService Station
Association of Texas, 10 S.W. (26) 124;
pulbrlght vs. State, 38 S.W. (2d) 87.
finthe case of Featherstonevs. Independent Service
Station Association, supra, the court defined a lottery as
follovsr
"A lottery for all practical purposes may be de-
fined as any scheme for the distributionof prizes, by
lot or chance, where one on pagig money or giving other
thing of value to another obtains a token which entitled
him to receive a larger or smaller value or nothIng, as
some formula or chance may determIne."
The Federal Circuit Coti of Appeals In the case of Peek
v. United States, 61 F. (26) 973, has given the following deflnl-
tlon of a lottery:
"Acheme for the dIstrlbutIonof prizes or things
of value by lot or chance among persons who have paid
or agreed to pay a valuable considerationfor the
chsncekto obtain a prize. And again, a soheme by which
a result is reached by some action or means taken, in
which result man's chdoe or design enable him to knov or
determine . . . until the same has been accomplished."
The case Boatwright vs. State, 38 S.W. (26) 87, defines
a lottery ast
"Any scheme for distributionof prizes by &an&."
The case of Griffith Amusement Co. vs. Morgan, 98 S.W.
(26) 844, holds the elements essential to consltute a lottery are
us prize In money or other thing of value, its distributionby
chance in payment, either directly or indirectly, of a valuable
considerationfor the chance to win the prlse.
The case of State vs. Randle, supra, holds that any
scheme for the distributionof prizes by chance Is lottery and
It matters not by what name such a scheme may be knovn. It
comes within the prohibition of Article 654 of the Penal Code.
Eon. Jack Borden, Page 4
J!nthe case of City of Wink vs. Griffith Amusement do,,.
100 SW (L'd)695, the court saXd that the necessary elements of
mea
"Offering of a prize, award or prize by chanae,
and giving of considerationfor opportunitiesto win
prize:"
The above mentioned requirementthat the winner appear
uu~cIaIm tha prize vlthln threc. (3), minutes from the time hl6
name la announced at the theatre, undoubtedly operat\esas a trea
mondouspressure on any one desiring to paxticIpate,topay the
prlc of admission. That Is undoubtedly the purpose, and It Is
aquaf Iy obvious that the award is made out of funds accumulated.
from-paidadmissions..In short,?the plan Is a violation of Art.14
ale 654 of the Penal Code.
In view of the foregoing authoritiesyou are respectfully
adifsed that it Is the opinion of this department that the above
nentlonedscheme or plan whereby a sheatre buys the fingerprints
of a.cItleen of the community as above outlined is a violation of
Article,654 of the Penal Code.
Trusting that we have satisfactorilyanswered your
inquiry,ve remain
Yours very tNly
ATTORNRYGRNEiRAL OFmS
BY /i/ A~rdellWIllIams
Approved: Opinion CommIttee
by BWB, Chairman