OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN

._ RonorableX.0. Flowers Secretaryof State Austin, Texne .r i



### Dear Sir: Attentionof Mr. Will ~e&Rfchardaon +plnionflo,

0&3f3.--~ 

### is%', Re: CorporatlonLy~~Furg&eblause - Innocentaprmte. .~' .'. ',~
Your roquest for c~i'ullg considered w this, requesta0 L"ollova:

he membersmag from time to time detertie.'
"We vould ap:,?reclate an opfnlon from you as to vhether such purpose clause ia authorized In Texas, and whether it comes within the innocent sporta aubdtvlsionof Article 1302." The purposes for whloh private aorporationfi ma? be formed in the State of Texa6 are enmmrated in Article 1302, Vernon'sAnnotat&dCivil Statutes. Se&ion 9 of said artltle

### 306

HonorableM.O. Plovers, Page 2

reads **am** follows:

“9. To supportand maintainbicycle clubs, mad other Innocentmport.8." Webmter'mIiev

International

Dlotlonary,2nd Edition, defines the terms "bridge", "8hlmt"and "mport",am followm$

“EPldgO - A card gam derived from vhimt, etc. "Whist - A card mm for faur

?--i&k withapaakof5 G player8 played

"sport - 3ome partleularplay, gmmI8, or mode of mxmamementj

amt (1) a d.tvsrmion of the field,
am fowling,hunting, fishing,raelng, -8, emp. ath%otleg-em, and the like1 also any of various chl1m.r gaPem OF dlvormion6 umually played un$er aover, ambovling, rackets, bmmkmtbm~, ho. The came of 3mlth vs. Worthmm,157 3W 741, held that under Rev. Stat. 1911, Article 1121, mubd. 36, permittingthe fomtlon of bicycle clubs mnd “other inuoaent sports," a aorporate charternaming In its purpose olaumo an automobllocrlub, the purpose and objeat of which shall be to promote innooent **sports** by mean8 OS automobtlee, vam inmuSSlc%ent, 8Inee a definite lnnoaent sport must be named, vhlah the charter did nat do. The earn8 **also** held that,therule of "ejumdemgenerlm* dld not apply, mince the.tena "@oyolo elubm" vam used ln the 8enme of a distinctand lndivldtiltnnooent sport, complete within itself and separatein ills ldentltp. The oame almo held that the aubdiolmlon of the l

tmtute was not invalid **beaaume** delegating by the quoted clause "other Snnooentmport8" legislative power to the Setretaryof State to determinewhat aorporatfonmmmg be formed. We vimh to paint out however that mince the renditionof maid same, the Legislature In 1929 pasmed Seatlon 91 of Article 1302, V.A.T.C.B.,which authorlmem the creationof corporations Soor the purpore of forinbg automobile clubs.

Article 615, Vernon'sAnnotatedTexam Penal Code, readit

am Sollovat Whoever shall or othzxisg of , or bet or wager mny aor4r~r at mny-gmmm of awls at any place not a private mxnoe ooaupiedby aBonorableM.O. Floverm, ?mge 3

Samllx, shall be fined not exceeding fif%y dollars. (Undermaorlng ours)
It la an offense to play cards even withoutbetting mt any place, except at a private rmmldenae occupiedby a sma11y. See the followingoam4mr

Elliott vs. State, 127 SW 5473 Borders vs. State, 6 SW 532% Oallegamvs. State, 95 3W 124; Lamar vs. State, 95 SW 511.
Article 617, VernongmAnnotatedTexas Yens1 Code, reads as Sollovm~

"The provlrlonmof the two preoedingarticles which permit gsmfng at a private residenceoaeupied by **a** family shalln&t apply in came much residence im one oomunonlg

r&orted to for the purpose of gmming, nor vhere the gmme played la m banking gmme." This department

held in an exhaustiveconferentre opinionvrittenby Eon. C.M. Cureton,First AmmimtantAttorney General, (laterOhle? Sumtiae of the Su reuse Court of Texas) dated February 20, 1915, printed in 191 B-1916, Reports of the AttorneyOenmral,pmgem 454-470, in&, that pool mnd billiard alubm could not be ahartermdunder the purpose clausewhich authorizedthe formationof aorporatlonm "to supportand maintain blcgole clubs, and other innocentmportmlbeoaume maid amusementsof pool mnd billiardsWON) Agamwmn mnd not "nportm.* We quote frorm

maid opinion am follovmt %%e games of pool and bllllaldm am eomnly understoodare not sports in thm usual and ordlnary sense of that vord, but **are** guaem and therefore are not eabraoedvlth5.n thm terse,

mnd pmvl- &ions of subdivision56 of Artlele 1121. "The use of words and phrmmem and the meaning attachedto thmm~

may be detsrm&nedby their mtatutory use, their judlaial,001Zoquialand teehnlaal uue and by their literary and historicalemfployiment

....

**“ The**  **courts of**  **othei; state4**  **have** likevlme tonmtantlyand continuoumly referred to the axsuaoxmsntm known as pool and bflliardmas gmmem arsdalmam8dRanorable #.O. Flowerm, Pm,ge 4

theme mmnxmemmntm,

aa does our statute.along with cards, checkers,e~c....~Undermaorlng ours]

546. "The City of Clearwaterva. Bovmsn, 82 Pac., "Squlsrvs. State, 66 Ind., 3171 "Sykes vs. State of Alabama, 67 Ala., 77. "United State vs. McKennm, 149 Fed., 252. "Ellisonvs. Lmvin, 66 L.R.A., 604. "The word 'sport'la usually confinedto field sports, though of aourse it lllay have other memnlagm, but its usual slgnifleatlon Is that auggemt4d. "White vs. Western Aasurmnue Compaixy of Toronto, 54 liw 193. "WIrth vm. Calhoun, 89 IIW, 785.
"In the first stated mmme thm court refers to a mportmman,

quoting the Cent&y Dictionaryam follow&t
"'One who sports,a man who praatioes flold sports, 4mpeoIally hunting or flshlng, usually for pleasure and in a legltlmmte manner.'
"In the last nmm#d came ths questionvam whother or not a theatricml performmnae,aon4lmtIngof muslc and dmnoln& and ieate of aontortlon, was sport or sporting. The statuteunder examlnatlonr4ad, so Sar am It 1s nec488mry to refer to the case, am follows: "*If w person of the age of fourteen years or upvard shell be found on the first dmy of the veek, c

ommmonly

aalled Sunday,mportlng, rioting,quar~ellng, hunting, fishing or shootingh4 or she mhall be fined, etc.'
"The statutevent momevhmtfurther than the quotation does in also mmking It an off4nma, to labor at comon labor on Sunday. The murt, after dimposlng of the questionand in holding that the theatrlcml performance

vem not embwoed within the tdnns of camman labor, th4n took up the immue am to whether or not It fell within the vord 'mpo&ing', as used ingonorable M.0. Floweca, Page 5

this atLtute,and quotedvith approval the definnition of ‘sport’as defined fn Webster, among other thlnga saying

”‘?3gort” ia definedby Webater aa followa: To divert; to make aierry; to representby any kind of play; to exhibit or bring out in public, as to sport a new equipagejto play; to frollo~ to vanton; to praatioe the dfveraionaof the ffaldl to trifle.” According to the aama lexioographer

, "sporting"

means "lndulglngin aportr f:eld.” practlolngthe dlveralonaof the If we uae the definitionof “mart,” inateed of: the to? itself, in EZ%%l~h~e “Zf 0EE~l j EeiZ~~- in dlvertlngJ (2) to indulge in axwryaakingj (3) to lndul 0 In rspreaentlng by any kind of play1 (4 7 to indulge In being out in publlo,,

aa to indulge in sporting a new hat or carrlagej (5) to indulge ln play or frolic3 (6) to indulge in vantonneaaj (7) to indulge in trifling) (8) prrotiolng the diveraloneof the field. It la obvious,we think, that the Lw@alature did not eplploy

the tefln

In the aenae of the firat, aeomd, fourth, fifth or alxth definitionabove given. They are too buoad. They Include too muah. If adopted in the oonatrmotlonof the atatute, our Sunday lav would rival the moat atrlngentof the blue lava. The third ia a aenae in whloh the teffa

is rerely used, and ia illustrated in the Century Diotlonary by e line from Dryden~ “Row epor%ingon the lyre the ‘Lovea of youth.” Aa thua llluataated,It, alao, is too broad, aa it lnaludeaawiy oonuaon and lnnooentdlveraiona. The seventh has no ap~:~licatlon

to thla case. Thla leaves tha eighth8 !practlclngthe dlveraionaof the field, as the definitionthe lawaakeraprobably had in mind when the law vaa enaoted. Thin appears still store probably on the OXa&nation of other defini’tiona. In the (Ientury mati.onary*e generalmeanlng of “sport-Bonorsble W.O. F1overa,Page 6

lng” la aald to be "engagingor concerned in sport or dIversIon" the specificmeaning, "interestedIn or aportarnt (89 11.W., .,87P raaticlng field

"From the foregoing It la seen that the court took up each of the aeveraldefinitionsof sporting as given In Webster and ooncludedthat the Code under whIah the proaeoutlon vae brought could not refer to eny of the definitiona there given except the eighth one vhIoh vaa tpracticlngtie diversionsof the field,' and It is thla definitionwhich It seems to us the Legislature

had in mind In providingthat oorporations might be chartered for the purpose of proamtIng bieyycle

clubs and other innocent sports. “The Supreme Court of this State has already held that in drefting the purpose olauae of a charter under this aubdlviaion a definite sportmrt be deaoribed or set forth. %a&th VI).

Worthara,157 S.W. 741. 'The court In en opinion rendered In tha Sa&th oaae referred to baseball as a vell reoogaixedand definite lnnoaent sport. It seem to us that this aaae Is persuasiveof the lnalatenae which ve make that the vord 'nporta,'as used In this statute,does not refer to @mm, but refers to those classes of amusements

which have been reaogniaedfrom time Iaaaemrialas aporta,not to that olasa auoh aa oarda, dice, pool and billiards,vhioh h")re been from time lmmaorlal ~seifled as games. This departmentheld In an opInIonwritten by Hon. A.R. Stout,AssistantAttorney Oensml, dated Januall~ 12, 1934, recordedIn Vol. 353, pages 302-307, lnoluslve,that the Hetropolitm Bridge Club of Rouaton,Texas, vas not entitled to receivea ahartsr f'romthe Seoretaryof State under aubdiVision 9 of Article 1302 of the Revised Civil Skatutea. This Opinionreferred to Judge Curetontaholding In the opinion above quoted. We quote from Judge Stout's opinion as follovar

"It has long been a deputmental ou6tom and praatloe to refufte to gent eharter8 similar to the one in question. TM.6 praatloe and euatom Is due soam weight, eapeoiallyif there ahould bemnmable l6.r). Plovers, ?age 7

any doubt about the matter. Hoorman v. Terroll, 202 8.U. 727, 109 Tex. 1733 Sdwmrds v. Jams, **7** Tex. 372~ Flm Aark. v. Love, **108 8.W.**  **810** 101 Tex. **376~ Walker**  **v. Meyers,**  sup.). **266 S.V.**  **499 [T.x.** 

**In the**  juagwmt **of the**  vrlter, there 18 **no** doubt, for **one** mason, **on** aoaouat **of the**  most stringent**laws** that **ve have**  always **had** against **eatis** and **gutag.** Horeover, if the point in que8- tlan should be doubtful,the opinion of the then Attorney bneral, nov~&$'dqtice of our Supems Court, Is, or xhouldbe HerPir county v. Balamld, 205 S.W. 445 fZE%L4d). "Hanyyears have passed since the&j Many Legislaturesfrmh from the people hwkooars and IT-* Ourrt&ukshavebeenreaodifiedand thin rulI.ng of ove~elghteenyeara agoha not **been de**  parted from, yet dmlng all of this tins, subdlvislon **9 has**  not been **ahanged one**  **vhft.** "'phi6 is not all. While mury mportsmlghtbe gaaum and many &user might be sporta, bridge or card plnyliq la one plea- or ps8tWe th8t hrs alvaya~ been eoxuldwed and dealgnatedas a 1 ’ The vrltor haa failed to find where it ha8 desl.epyrted

othwvlre. It la a card &are that is en *offshoot*

oi the old l&gll& game of uhiot and that is all there ir to it. About It, tha lexioographen says

“‘A eard r8Bembllng vhhirt.' Webster*6Eev r ternational Dlatiomwy.

"Bridge ir just as muoh a &me u 18 poker and they are both universally spoken of as ga?6es. As onevhohas MISS knowledgeof bothliole sn4 Bf~.Culbertson no imtanae 0aabe *oalXed& where either oi them **ever** appliedamythins other th83lthOVOl’d 'gm't0 thI8 mat mtim.
'At the time subdIvlaioz~ 9 was r&rat purred, bridge vaa not played muah, if even beeud of. Poker, however, then as mu, Was Still SxteU& u

### 3%2

EonorableX.0. Plovers, Page 8

faot, we had then, as now, stringer&lava mgalnat it, and as lrte as 1911, we flnd Judge Dmvidmon aaytngr "'Thmt the prmctloe of gambling la demoralltlng,lnlrioalto aoalety.and destructiveto the rorala of the youth a6 well as Iwn of uturer years.* Purvla v. State, 137 S.W. 701. '%e vriter does not believe that any good lavyer would seriouslyoontend for long thet **A** poker club oould be orgmnleedunder aubdlvlsion9, yet in so far **as** the lava of our Legislatureprovide,bridge and poker hew the acme legal standing or occupy the amme station, legallY. "Article615 of WI- Penml Code ot 1925 provides: "'Whoeverahmll plaY, or bet or **wager** any mosey **or** othear thing of value, at a.ny

game of oarda at mny place not a private maldemse oacupledbY a frnily, shmll be fined not exoeedlng fifty dollrra.'
"In other vordm, whoever ahmll plug

. . . mt ray game of cards

. . . ahmll be fined not exceeding fift dollati, and the only exception la a private real b co, vhich one amp play umrds tr game vlth oarda in, ao long as he does not oommo~y resort to It for that plppose. If he commonlyreaorta to such prlvmte residence for the purpose of gmmlng, then his cornhot Is illegal just as it would be In any place save a private realdenoe, whetherhe plrced monay or value on the cards or not. ArtSoles 615 and 617 of 1925 Penal Code3 20 Texas Jurisprudence, p. 619, pmrm. 14~ Osllegaa v. State, 95 S.W. 1233 harvim v. State, 137 s.7. $01. The above cited authoritlemserve to illurn& trate the prino'lple, although the books are full of analogousones. Our Legislature has no doubt alvaya prooeededupon the theory that:

"'Cerdaare as mumh a ma ang device yet Invented. qsm;~qa~lce State, 5 X0. 451. This mtatemmntfrom ihe suprewe Court of Missouri, is in keeping with generml experlenoeand would oertmwY~tmwable 11.0. Fhvo~, "a&a 9

be admittedby all men., withoutproof, argument OF diecourse. "Since it 1s agalwt the law to play cards, VhOther vlth 6~ VithOUt 8hkO8, in any plae0, 8aVe a private rerldenae that 18 not G-rhlJ re8orted to for the purpO80 Of gaming, it 18, therefore,

both alsar and elementaryth&t the aorporatloncould not be charteredfor a purpore that va8 not lavful. 146 C.J., p. 126, para. 119.
"It 18 contemplated by the lav that th8 uorporatlon, if a ahartervere granted, rhouldhave a plaoe of bU8inO88. Artiole 1304. Ordlnarlly, thi8 plaoe vould be the headquarter8of the 'olub.' It would be here that the wmber8 would usually wet and play bridge,yet thf8 vould be unlavful, and in 8trlot legality,the lav could not and vould not countenanceit, Should it be argued that bridge vould only be played ln private home8, ooaupludby a family, then there vould~beno nued vhst8oeVer fOF a OOFpOZ'atiOXL A8 ha8 bOOn 8talad, It hae long been a departnental male to not grant dl6l't&8 8Uoh a8,the One Ill Qlle8tlOiL

UO kWv Of no exoeption to the male and have bum unable to find any oa8e that vould 8aaation the granting of a ahar$er, 8uah a8 the one applied for, under Tern8 lav.'
The pwO8e **ohl8e Of**  **th8** pX’OpO8Ud **~O~O~atiOll 8tate8**  that t&i wetlngm of the olub vi11 bo held at 703 RluhmondRoad, 8ou8ton,Texa8, or at the XW8ldenoe8 of other member8 of said alub a8 the member8 my frond ties to time determineand that aards will be played at 8aid plaoe8. Said **JNl ’** **pO88 daU8e**  do08 not dleeloaewhether or not 703 Riahmnd Road 18 a prfVatS re8idews oacupledby a familynor da08 it di80108e vhether or not the other re8idenceaare private %W8idenue8occupiedby fuilie8. The playing of eard8 by 8aid propo8ed club member8 may or Day not.be illegal,dependentupon all the fast8 and Oireum8tWe8 Lnrolved,

under the rule8 of law laid davn above in thi8 opinion. H6vever, this department vi11 not make arty

a88WEPtlOna8 t0 vhether or not 8aid alub vi11 or will not violate the 1aV vith reibrenO8 t0 playing oard8 or gsaLing. !ht PWardl888 Of wh&hor or not the game8 played are played In ~1 illegalmanner they

### ” **-- 314** 

&nwrable LO. nover8, **Page** 10

o@tafly CawOt be ala88eda8 "fMOOent 8pOrt8"Vithh the aantemplatlon

of rubd. 9 of A&ials 1302, **v.A.T.c.S.,** rupra.
In Vim Of the foregOingauthOrltie8,it 18 the @nlon of thlr departmentthat "bridge", "vhl8t"**and** other card g8WS are "g8WS" and aF0 Wt "ilUlOOWt 8pOFt8" 

### Within th8 oontemplatlon

of rubdlvl8ion

9 of Article 1302, **V.A.T.C.S.,** 8upra, and that said proposed charter **&mild be**  ref'u8ed by tlm Seoretaryof State.



### Your8 very truly
**ATTORHBY**ORRHFUL OF l'EXAS

QPROVEDNOV 15, 1940
u/7%-M& ATTORNEYGENERALOF TEXAS