### Honorable W. J,Townsend

**County** 

### Attorney Angclina County Lufkln. Texas **Dear Sk:**  

### OpinionNo. O-6007 Re: Does thescheme for thedlspositlon ofanautomobile by chancewhere tickets are aold for $1.00each, constitute **a** 

### lottery? Iaalottery aL game thattheState 1sauthorixed to suppress by.injunction under Article 4667,Revised Civil Statutes? **Your reqwet**  

### for anopinion **relative to** **conductlng** 

### alottery haa been received andcar,efully considered bythis department. We quote portlona **of**

### your letter as followa:

‘I begleave toadvise thatagroup ofclttzena ofthiscounty. inan**effort** 

### to**raim** 

### rome **money** 

### for abenevolent purpose, **are** 

### seeking todispose of

### anl utomobU8 by **means** 

### ofalottery ln**aelllng** 

### tickets for adrawlng. Thr lucky number isto

### receive the **automo** 

### bile. The **tickete** 

### for thedrawtng sell for approxtmately $1.00each, whichticket sopurchased entitles theholder **thereof** 

### onechanceat said drawing 

### or lottery. Ihave advised these promoters **of**

### this scheme thatthe**ram.** 

### Lsunlawful, butapparently 

### they donotagree withmyconatructioa **of**

### thelaw. **Hence,** 

### I**am** 

### nubmltting thematter **to you**  

### asking **your** 

### oplnlon

### governlug thefacta. “* * *

‘Please give me **your** 

### optniononthese 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 ofa chance for the possession ofthe 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. Inaddition to the criminal prosecution of those conducting 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 ofthe 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 ofthe automobile which is being used for an unlawful purpose, to-wit: the dtspositlon of the same by chance or lottery 7” **Section** 47 ofArticle III of the Constitution of Texas reads as follows:

‘The Legislature shall pass laws prohibi.ting the eskblishment oflotteries and gift enterprises ln this State, as well as the sale of ttckets In lotkries, gift enterprises or **other evasions**  lnvolvlng the lottery principle, establlshed or **existing,** in other, states.” Under the above mandate the Legislature passed Article 654, Penal Code ofthe State ofTexas, 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 ifany 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 ofCole vs. State, 112S. W. 2d 725, that such a scheme as you describe inyour letter is in violattoa ofthe 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 ofthe 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 toestablish a thing as a lottery: (a) **A prize**  **or** prizes; (b) the award or distribution ofthe 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 Ltappears 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, 54Tax. Cr. R. 403, 112S. W. 1068; 21 L.R.A., N. S.. 876, 130**Am.** St. Rep. 897, 16Ann. Css. 844; Prendcrgsst v. State, 41 Tex. Cr. R. 358, 57S.W. 850; Holeman v. Skte, 2Tex. App. 610, 28Am. 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 Ln17 Ruling Case Law, p. 1222, and 38 Corpus Juris, p. 286, with Lnnumerable supporting cases clkd under the text in each of said volumes.” **Also** see Smith vs. State, 127S. W. 2d 297; City of Wink vs. Grifftth Amusement Go., 1002S.W. 2d 695; and Robb &Rowley United v. State, 127 S. W. 2d 221.

The scheme **or**plan, as described inyour latter, apparently is in violation **of Article**  **654, Penal**  Code of Texas, inthat all three of the elements **necessary to** constltuk s lottery 

### are present. Each person psrticieating ln the schema is required 

### to purchase a ticket 

### for the drawing. The tickets are priced st one dollar ($1.00) each. The purchase ofa 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.nthe prize since the prize will be awarded to the holder ofthe 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 ofthe lucky ticket.

As towhether or not those conductl.ng the lottery are equally guilty tnthe commission ofthe offense as well as those selling the lottery tickets, the following articles ofthe Pen,al Code ofTexas are quoted:

“Article 65. All persons are principals who are **guilty** of acting together inthe commisston ofan offense.”

‘Artkle 66. When sn offense is actually committed by one or more persons, but others are present. and knowing the unlawful Lntent, aid by sets or encourage by words or gestures, those actually engaged Inthe commission ofthe unltiwful act, or who. not being sctually present, keep watch so as to prevent the inkrruptton ofthose engagCd in commlttlng the offense, such persons so atding, encoursging or.keeplag watch are prtnctpal offenders.”

‘Article 67. All persons who shall engage in procurtng aid, arms or means ofsny kind to assist In the commission ofsn offense, while others are executing the u.nlawful act, and all persons who endeavor at the time of the commissLon of the offense to secure the safety or concealment ofthe offenders are principals.”

‘Article 69. Any person who advises or 

### sprees to the commission of sn offense and who is present when the same is **commlt** ted is a principal whether he aided or not Inthe 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 ofthe offense as well as persons selling the tickets, and are amenable to prosecutton **for** the violation of Article 654, Penal Code ofTexas. 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 inthe commission of the same,Honorable W. J. Townsend, Page 5. O-6887
they are and must be principals, and equally so whether the act ofthe coprincipal brings him under one or the other ofthe various methods specified inthe code whereby one may become a principal. **A** person who commits an offense while acting as agent for another, and with knowledge ofthe 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 ofthe 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 ofthe common design remains incomplete, or, in other words, until the full purpose and object ofthe conspiracy is consummated and accomplished.” We now **pass** toyour third question which is, “Can an injunction suit be lawfully brought to enjoin the conducting of said lottery, ifany?” This identical question was brought before the **court** in the cases ofState vs. Robb &Rowley United, 118S. W. 2d 917, and Robb &Rowley United, Inc., et al vs. **Skk, 127** S.~W. 2d 221. In both ofthese cases itwas held that lotteries are a species ofgaming 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 toArticle 636, Penal Code of Texas, which we quote:

‘It shall be the duty ofevery 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 ofgambling houses, the existence ofwhich has come to his knowledge and to immediately file with thejustice of the peace, county judge, or district judge, a wri.tten list ofthe 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 justice ofthe peace, county or district judge shall note the same upon his docket and **ksue,** or cause the clerk of the court to issue awritten notice to the owner 

### or person inwhose 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 towhom 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 ofthe opinion that the automobile, which is the prize tobe awarded, is not property subject to confiscation under the provisions of the above article. In support of our contention, you are referred toHightower v. State, 156S. W. 2d 327; Davis v. State, 165S. W. 2d 757; and Collison v. State, 146S. W. 2d 460.

Trusting the foregoing answers **your** inquiries. we **are** , Yours very truly ATTORNEY GENERAL OF TEXAS

ATTORNEY GE‘NERAL LWW:IJ Louts w. Woosley Assistant

APPROVED OPINION