Honorable W. J, Townsend 

County Attorney 

Angclina County 

Lufkln. Texas 

Dear Sk: Opinion No. O-6007 

Re: Does the scheme for the dlspositlon of an automobile by 

chance where tickets are aold 

for $1.00 each, constitute a 

lottery? Ia a lottery aL game 

that the State 1s authorixed to 

suppress by. injunction under 

Article 4667, Revised Civil 

Statutes? 

Your reqwet for an opinion relative to conductlng a lottery haa 

been received and car,efully considered by this department. We quote 

portlona of your letter as followa: 

‘I begleave to advise that a group of clttzena of this county. 

in an effort to raim rome money for a benevolent purpose, are 

seeking to dispose of an l utomobU8 by means of a lottery ln aelllng 

tickets for a drawlng. Thr lucky number is to receive the automobile. The tickete for the drawtng sell for approxtmately $1.00 each, 

which ticket so purchased entitles the holder thereof one chance at 

said drawing or lottery. I have advised these promoters of this 

scheme that the ram. Ls unlawful, but apparently they do not agree 

with my conatructioa of the law. Hence, I am nubmltting the matter 

to you asking your oplnlon governlug the facta. 

“* * * 

‘Please give me your optnion on these 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 of a chance for the possession of the 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 lotkry 7 

‘3. In addition 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 of the 

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 of the automobile which is being used for an 

unlawful purpose, to-wit: the dtspositlon of the same by chance 

or lottery 7” 

Section 47 of Article III of the Constitution of Texas reads as follows: 

‘The Legislature shall pass laws prohibi.ting the eskblishment of lotteries 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 of the State of Texas, 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 if any 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 of Cole vs. State, 

112 S. W. 2d 725, that such a scheme as you describe in your letter is in 

violattoa of the 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 of the 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 to establish 

a thing as a lottery: (a) A prize or prizes; (b) the award or distribution of the 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 Lt appears 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, 54 Tax. Cr. 

R. 403, 112 S. W. 1068; 21 L.R.A., N. S.. 876, 130 Am. St. Rep. 897, 

16 Ann. Css. 844; Prendcrgsst v. State, 41 Tex. Cr. R. 358, 57 S.W. 

850; Holeman v. Skte, 2 Tex. App. 610, 28 Am. 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 Ln 17 

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, 127 S. W. 2d 297; City of Wink vs. Grifftth 

Amusement Go., 1002 S.W. 2d 695; and Robb & Rowley United v. State, 127 

S. W. 2d 221. 

The scheme or plan, as described in your latter, apparently is in 

violation of Article 654, Penal Code of Texas, in that 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 of a 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.n the prize since the prize will be 

awarded to the holder of the 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 of the lucky ticket. 

As to whether or not those conductl.ng the lottery are equally 

guilty tn the commission of the offense as well as those selling the lottery tickets, the following articles of the Pen,al Code of Texas are quoted: 

“Article 65. All persons are principals who are guilty of 

acting together in the commisston of an 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 In the commission of the unltiwful act, or who. not being sctually present, keep watch so as to prevent the inkrruptton of those 

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 of sny kind to assist In the commission of sn 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 of the 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 commltted is a principal whether he aided or not In the 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 of the offense as well as persons 

selling the tickets, and are amenable to prosecutton for the violation of 

Article 654, Penal Code of Texas. 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 in the commission of the same, 
Honorable W. J. Townsend, Page 5. O-6887 

they are and must be principals, and equally so whether the act of the 

coprincipal brings him under one or the other of the various methods 

specified in the code whereby one may become a principal. A person 

who commits an offense while acting as agent for another, and with 

knowledge of the 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 execution of the 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 of the common design remains incomplete, 

or, in other words, until the full purpose and object of the conspiracy 

is consummated and accomplished.” 

We now pass to your third question which is, “Can an injunction suit 

be lawfully brought to enjoin the conducting of said lottery, if any?” This 

identical question was brought before the court in the cases of State vs. Robb 

& Rowley United, 118 S. W. 2d 917, and Robb & Rowley United, Inc., et al vs. 

Skk, 127 S.~W. 2d 221. In both of these cases it was held that lotteries are 

a species of gaming 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 to Article 636, Penal 

Code of Texas, which we quote: 

‘It shall be the duty of every 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 of gambling houses, the existence of which has come to 

his knowledge and to immediately file with the justice of the peace, 

county judge, or district judge, a wri.tten list of the 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 of the peace, county or district judge shall note the same upon his 

docket and ksue, or cause the clerk of the court to issue a written 

notice to the owner or person in whose 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 to whom 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 of the opinion that the automobile, which is the prize to be 

awarded, is not property subject to confiscation under the provisions of the 

above article. In support of our contention, you are referred to Hightower 

v. State, 156 S. W. 2d 327; Davis v. State, 165 S. W. 2d 757; and Collison 

v. State, 146 S. 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