Untitled Texas Attorney General Opinion

T~EA~OWNEYGENERAL
OFTEXAS
PRICE DANIEL
ATTORNEYGENERAL
19ovember 30, 1948
Hon. Homer Oarrison, Jr., Director
Department of Public Safety
Camp Mabry
Aus tin, Texas Opinion No. V-727.
R4: jhether plan to make up
purse” for midget auto
races from entrance tees
of drivers and psrtlclpe-
tion by drlverls friends
and fans Is illegal.
Dear Cal. ffarrlsonz
Your letter of September 24, 1948, outlines
a plan to conduct midget auto recea, and to award and
distribute purses to those~postlng and contributgga;E-
ward the entrance fees of drivers in the race.
asked whether the plan is contrary to the penal laws of
the State.
The proponents are constructing a stadium to
seat approximately 12,000 peraonr, and desire to attraot
outstanding driver8 by the offer of a large “purse” or
rize for winning drivers. They propose to charge a
8500.00 entrance fee of each driver, which will go into
the exhibitors1 fund for the sole purpose of increasing
the “regular” purse, which repreaisntn4056 of the gate
receipts . Drivers will be permitted to “sell” a por-
tion of the entry fee to “friends” and “fans” in cases
where a driver does not have sufficient funds to poet
the full fee, or for other reason does not desire to
do no. Those buying interests, or so contributlng,wlll
partlcQate In proportion to their,lnterest in the added
purse, if their man places first or second. They will
not participate in the “regular” purse, made up of a per-
centage of the gate receipts. The proponents will aet
up “drivers’ quarters” for the convenience of the friends
of the drivers who wish to purchase a portion of the fee
not purchased by the driver. The driver, or his agent,
will collect the winnings and disburse them to the lnter-
ested parties C If the driver posts the full fee, there
will be no further distribution of his winnings.
. _
-
Hon. Homer Osrrieon, Jr., Page 2, V-727.
Article 6521~‘ Vernonte Penal Code, provider,
la part, a8 followsl
“section 1. Any perron who takes or
OP pl6080 for raothor a brt OF wages
rocrptr
Of8o noorjlnt’thk6 Of value on 1. home
race, dog mar, automobile risoo,motorojcle
race or an other raoe of any kind whatro-
ever, foot c rll gme, brrrbrll games fith1etl.o
contmt or rport8 went of whatroevor kind
or obarrotrsj or an prraon who offem to
t&r or roorpt or pI loo for mother any ruoh,
bat OF wrqorj o r lnv prrron who l8 (Ln agent,
8ervmt or em 10900 or othrrwl88, aid8 or one
ooura~er mot & r to t&o or roorpt or plroe
any ruoh bet or WI erj or an) prrron who di-
rrotly or indlrrot f y suthorlcw, side or rn-
ooumger my a&ant, rrrvrnt or employer or
othrr prrron to t&r or rooopt or lror or
trmrait an euoh brt or wrgrr rha P 1 br guilty
of book mrlc 3ng. I I
“S4CE 4, Any owner, agmt, lraror or
lr64aer of my real or prrronrl proprrty who
rhrll knowlnglf u80 or knowi 19 pormLt ruoh
property to br urrd in oonneoY ion with book
making, a8 ruoh term 18 herrin doflnod, rhall
be uilty of l frlony and upon oonviotlon
rh8f 1 be puaLlwd 41 ret fssth under 88otlen
1 of thir ht.
“B.C. It shall
5. br unlbwful for l;l
prrron or thr agent, rrrvmt or aplofrr of
an7 permn, oorporation or ~88ooirtlon of
por8on8, knowlngl~ to furnlrh trlrphoae, tale-
graph, trlrt$po, tile rint or radio arr*loo
or rqulpsmtj or to p PMI the rrma on my
pro rrt? la thL# 8tatr uard for the ur 010
proii lbltrd b;l thtr Aot or to rr8i8t 1 a ? ho
violation of my of the provirlonr of thlr
Aot by fumi~hln of ~9 trlrphoar,trlr~ruph,
trlrtrpo, trlr r nt or radio rrrvioo or rquip-
mnt. It rhal Pf rlno be unlawful for ant r-
8on or rrmoalrtlon of prr8onr ‘or oorporat r 081
knowlnglj to pwmlt l9 trlrphonr, telwr4gL,
tielrtjpr, trlrprlat, radio or other maam of
oamunio~tlon whatrvor to cmrin on ra9 prop-
rrty u8rd for the purpoar prohibltmd br thlr
Aot. a a”
’ .
Hon. Homer Qarrlson, Jr., Page 3, V-727.
Article 652a makes “book making" on automobile
race8 a felony. Betting and wagering, thereon, are not
there prohibited, but acting for someone else, aiding
sotn4on4else, 8nCOuraging 8om4on4 41S4s in making such
bet or wager on a race, and offerlng to take, accept or
place 8uCh a bet for another are ptiohlbited. Knowingly
permitting the use of property in connection with OUCh
activities ia also prohibited. Und8r this Article, no
one may act as any sort of intermediary, or em9109 lnter-
mediaries, or Oth4rWi.84facilitate, aid or encourage
others Wmaklng Ouch bet8 or wagers, nor may ho offer
to take such a bet or wager for another.
The test of lllegalitg under this Article, re-
gardl888 of what 1s actually lntendsd under the plan, is
whether betting and wagering by anyone will in fact be
facilitated, aided, or encouraged by some or all of thO88
engaging in or furnishing facilities and services to the
enterprise. Obviously, no hypothetical outline of such
an enterprise can state or even antlCipat8 all of these
things, and we must'necesaarily decline to venture an
oplnl.onthat .the law will not or cannot be violated there-
under. We will not do so. The t4nd4nCi48 are quite ap-
parent, and ViOl&tiOtl# Of ths blf ar4 pO88iblO .Stld
Won
probable.
We have found no statute prohlblting betting
as such upon automobile races. It is "book making"
which is prohibited. Before the offense of book making
c&n be committed, however, there must be a bet or wager
Involved, or at least the tender or offer of a bet or
wager.
There 18 no question but that where two or more
contestants contMbute sums of money making up a fund
which is to belong to the winner of the contest, the agree-
ment or transaction h a bet or wager. Equally certain
it is that for two or more persons to conteat for a prite
offered by one not a contestant, the agreement or trans-
action 18 not a wager. 27 C. J. 1051. The queatlon here
18: Uhere both the contestants and the exhibitor contrl-
but8 auma of money toward prizes, is the transaction a
bet or wager as to either the contestants or the exhibitor?
On the face of the statement, It would appear that the
money contributed by the contestants would constitute a
stake or wager, while that contributed by non-contertants
is a mere prize.
.,
HOG. Homer Garrison, Jr., Page 4, V-727.
But, the 8OlUti4~ 18 llOt 88 8i.lll91. @.I &ll tbt.
If the ContPibUtiOn by th4 ``t48tMlt8 do.8 not 80 %8-
mediately md blmctlj to the purse or prlee, it may not
in fact be a bet or wagor. For example, where a racing
association offer8 a prim to the winner but charger,an
entrance fee for the right to participate, the entrance
fee going into the funds of the association from which
the expenses of aalntalnlng &he track and quarters are
paid in addition to the making up of a prize, there is
missing the necessary identity of the entrance fee a8 a
part of the purse or prize; and, without more, it cannot
be said that the entry fee Is not In fact charged to off-
set the expense of such maintenance and is not paid aalo-
ly for the prlvllege of entering the contest. This ap-
pear@ to have been the basls for the decisions in a number
of cases that the mere fact that entrance fees are paid
by contestants, which fees go into vr lnorease the purse
or prlee offered by the exhlbltorr,of the race, does not
make an entry fee a bet or wagers OT the purse or prize
a stake. As we aee it, all of the facts and circumstances
surrounding the particular transaction are necessary to
determine the character of the transaction as being a bet
or wager. It cannot be said, en the other hand, that be-
cause of the ruer4 fact that the contestant's contribution
is called an "entrance fee", the transaction is not 3x1
fact a bet or wager. The cases aloe bear this out, acme
by express lamguage and others by necessary implicatlen.
In Toclaeyv. Penwell, 76 Mont. 166, 245 Rc.
943# 45 A.L.R. 993, a leading case on the subject, the
Court denied recovery fronta Stat4 Fair A#@OCiBtiOn,
under a statute authorielng recovery of losa4a in 8 wager,
of the sum of $2.99 prld by a centertant for the right to
eater a horse in a raae for a.purae of $3750OO, on the the-
cry that the fee was not shown to be a bet or wager under
a statute prohibiting betting on contest8 of the like. The
purses were definite U4Ud4 9h8 UOUIItO "4qUd to” the
entrance fee8 paid la eaah race. The Court quwtw 27 C .J.
1051 to the effect that where the entrance fee deer not
a eciflcoll make up the purse, the 84~4 fact that the
jiikn-3 8 u 4 up prrtly of fee8 and inpartot an added
#\p dws not make the oontwt a wager. The CeuHi said:
“The reason fer the rule is apparent.
Uhen plolntlff p8ld the entrance Pee, he re-
ceived the adequate consideration for It -
the privilege of having the horse ‘Florence
Fryer' participate In the race. He parted
with the title to the money and the $2 at
Hon. Homer Gbrrhon, Jr., Page 5, V-727.
oace beoame the property of the Fair
Amoclatlon, and & part of It8 gmrral
fuadr, vhich It aould UIO to tis'i)rem-
Ium Ih whole or
dlaary WD
JRlrDO8@, ‘* purl8 ruppllrd)
Th@t the partioulrr faot8 of my given 0180 could ohagr
th8 r88Ult 18 illU8tZWtrd by the langlug Iam8dIatrly
follovIng the abovr quotrtionl
“But th88e Ob8WV&tiOn8 a d thr au-
thO!'ith@r oitod hvr to do VI-.
tl’~n8~OtiOU8, ld not vIth @mblIrq 80
;~I~l~o~i8~Ui80d l8 to l PO&P t0 br Vh4t
ortrd upon tha
theory t&t lad latzuaor for la
(LR rmouat of aowj rotwlly paid uadoadl-
tIoar;lly rnd Ia good faith foa thr p~,Lvl-
lo o of ratrslag Dlu oontelt, 8ad for, ao
ot %or purporr1 If r& fact thr fro karnot
paid toss ruoh pu~poal; I
mg orn 8bVO
rotion ta~m tha opd, martion of ow mtl-
6mbling 8 tatUt0 a t fEm@i@ei~8 rupplird)
AUthoPltIO8 referrod t0 ln bddltion to OOrpu8
Jurlr &WI Woarlron v, bnnott (Moat,), 40 L,R,A, 158,
ooataIaIag dlotum to thr elirot that
Offaring psIbo8 oa
hor8, rao.8 18 not OOntrrX’y to
bubllo polioy Vh.F@ the
pUX’8r 18 ofSered in good faith and not l8 l 8UbtWf l
iOr b8ttIag and g&mIagl PortervI ho, 71 W*l. 296,%
11, W. 259, woo nlclng that uhrro the prI88 I8 A marr
8UbtWlUg8 f0~ %8ttIPg rnd gaming It I8 prOhIbIt8dl atr-
bi8 v, White, 81 NJ, Y, 532, rroogeIcIng th a tl mtrrnor
Se0 would bo a brt If It wont “Imraodirt8l~” to marti up
thr purr. 0ontrrt.d fOT, inrtO&d Of #Oin(l into the garb
-1 flUId Of th8 ~88OOirtiOllj and bllkbn8 Vt OttitlgOr,
115 Qrl, 454, 47 P, 254, 40 L,R,A, 76, whrro the ontrraor
?ro W8 admittedly not grid l8 l W4ger 02’brt, but for
the prlvllrge of ontoring the rIQee
On thr other hand, In OIbbOa8 v, OOUVODIUF, 1
D8nIo 170, Wh8P8 tho noary paid by the ooatO8~at8 Va8
for the OX)U?@88 pUPpO80 Of making & I-k8 t0 bo OOat@8t-
ad for, and for no other purpo8e, and with the prrvIou8
rgrwmrnt that the vrry wm8 thU8 paid 8hOUld form tho
Itake, ld to go, the whole oi' lt, to the Winner of thr
raO0, OOIl8titUted b8ttIng rnd Vagrrlng.
.
-. .
,-
Non. Homer Garrison, Jr., Page 6, V-727.
In Stoddard v. &Aullffe, 81 Hun. 524, 31 N.Y,S.
38, affirmed by memorandum, 151 N.Y. 671, 46 H. E. 1151,
a club put up a prize of #,OOO.OO, and two prize fighters
put up an additional $1,500.00 each, all to go to the,vim-
nor. This wan held to be a bet or wager within the etat-
tltte
.
In Porter v. Day, supra, the Court said:
“If two or more men owning trotting
horses should contribute equally or other-
vise a sum of money, and put it into the
hands of some other person for the puruose
of offering it as a premium or reward to
themonlr. and to the owner of the horse
who should win the race, such a transaction
would undoubtedly coiuewithin the rule whlci
rohlblts betting on a horse or other race.
PEmphas la supplied)
In Dudlep v. Flushing Jockey Club, 14 Misc. 58,
35 I.Y.S. 245, a 8tatut.eauthorlzlng’partlclpants in a
horse race to join In furnishing the stake or purse was
held to be an attempt to legalize the wager in contraven-
tion of a constitutional provision against pool selling,
book making and gasbllng.
In the plan before us, the entry fee Is for the
oxpress purpose of making a “purse’ to be contested forP
and for no other purpose, and with the previous agreement
that the very auas thus paid should form an added purse,
to go, the whole of it, to the winning drivers. It con-
stitutes a bet or wager.
There la no distinction in principle between the
plan and the playing of pool, the winner to pay the fees
charged for use of the table, condemned as betting in Mayo
v. State (Tax. Crlm.), 82 3. 1J.515.
The participation of “friends” and “fans” Is to
be tested b like principles. In Cbulter v. State, 53
3. W. (2d) (77, where options were sold and redeemed on
horses entered in races, the Court of Criminal Appeals
held, in effect, that where the mutual understanding of
the parties to the transaction vas that, dependent upon
the result of the horse race, the money Invested in the
options would be lost or increased, the transaction COW
stituted betting on a horse race. The Court cites 9tato
v. Falls Cities Amusement Co., 124 Ohio St. 518, 179 B.R.
Hon. Homer Garrison, Jr., Page 7, v-72-f.
405> 408, 79 A,L,R. 568, and Pompano Rorse Club et al, v.
State of Florida, 93 Fla. 415, 111 So, 801, 812, 52 A.L.R.
51. From the latter, it cites the following:
,I0 Q 0 when a group of persons, each
of whom has contributed money to a common
fund and received a ticket or certificate
representing such contrihutlo:?.adept a
horse race,.the result of ur~lzh 13 uncer-
thin, as h means of deto~minlng, by chance,
which members of the group have won and
which have lost upon a redlvlsion of that
fund, each contributor havLng selected a
stated horse to vln such race, the redeem-
able value of the certificates so obtained
and held by the contributors to such fund
being varied or affected by the result of
such race, so that the value of some is en-
hanced, while that of others la reduced or
destroyed, D S those who chose the winning
horse being paid from the fund so accumu-
lated more than they contributed thereto,
by dividing amongst them the money contrl-
buted by those who chose loalng horses and
who therefore receive nothlffg,that proces8
becomes a 'game of chance'.
The definition of "bet or wager' Is taken by the Court
from Rich v. State, 38 Tex. Cr. R.199, 42 S.W. 291, 292,
38 A.L,R. 719 as:
"Ordinarily an agreement between two
or more that a sum of money, or some valu-
able thing, in contributing which all agree
to take part, shall become the property of
one or more of them, on the happening in the
futurz of an event at the present uncertain
0 * 1
The plan contemplates such a transaction on
the part of drl.versphis friends and fans. The plan Is
not dlstingulshable in principle from those considered
in Opinion No. O-1704 of the Attorney General of Texas,
where purses were made up by entry fees in a dog race;
Wellston Kennel Club v; Castlen (MO.), 55 S. W. (2d) 288,
considering a method of subscribing to purses; State v.
Feak, 60 Ohio Appi 223, 20 NC E. 534, consldsring an op-
tlon method; Reinmiller v. State. 93 F1a~ 4i5.+111 Soc
601, 5;!A.L.R,51, considering a method of "investing" IA
._-__--I
_~ .-
lion,Homer G&orison, Jr., Page 8, V-727.
the "eBrning8 Of a 1308" Oklahoma Kennel Club Y. estate,
155 Okla. 233, 8 P. (2dj 753, considering a “donation”
plan; fi parte McDonald, 86 Cal. App. 362, 260 P. 842,
considering another "contHbutlon" system; and State v.
AK - SAh - EEB Expoaitlon Co,, 119 P&b. 051, 226 N. W
705, considering a plan to distribute amounts in excea8
of regular purses end expenses to those contributora
thereto who picked winners.
You are respectfully advised that the plan
contravenes Article 6528, Vernon's Penal Code.
SUMMARY
$500.00 entrance fee charged midget
auto drivers for the sole purpose of mak-
ing up or lncreaslns the purse offered to
the winner by the exhibitor is a "bet or
wager", and sponsoring such arrangement
constitutes "book making" under Article
652a, v. P. c. Contributions to such en-
trance fee by others in exchange for an
interest in drivers' winnings are "bets
or wagers", and sponsoring such activity
conat.ltutes"book making" under .the same
ArPtlcle.
Yours very truly
ATTORNEY QENERAL OF TEXAS
Ned McDaniel
Aasletant
NMC :JPC