OFFICE OF THE ATTORNEY’GENERAL OF TEXAS 

AUSTIN 

Honorable Zcnfro speed 

county P.ttoriley 

Freestons County 

Fairfield, Texas 

Dear Sir: 

Thank you for 

letter of Novenber 14, 

partwnt as to,whethor 

stitutes a lottery and 

Fenal Codo of this 

vi&5 a fund 

names on a book or 

is designntwl as 

s :r;ovie oritiot is t,hen 

it is his duty to attonil 

Texas reads: 

The Legislators shall ~~lss lnws prohibltinx the ootnblisho.ont of lottccias and gift 

cntorprisos in this state, as ~011 as tho sale 

of tiokets in lot”,erios, elft ontoryriscs or 
other evasions, Involving the lottery principal, 

astablished or existing, in other statesaw 

Pursuant to such Oomand the Legislature passed 

Article 654 of the Tenal Code, which reads as follovrs: 

*It any person shall establish a lottery 

or dispose of any estate, real or.personal, by 

lottery, he shall be fined not less than Cne 

Hundred ($100) Dollars nor olore than One Thousand ($1000) Dollars; or if any person shall 

sell, offer for sale or keep for sale any tickets or part tickets in any lottery, h8 shall 

be fined not less than Ten (ala) I)ollars nor 

mre than Fifty ($50) Dollars." 

In City of Wink vs. Griffith Amusenient.Company, 

100 9. w. (26) 695, (Tex. sup. Ct.), the OoUrt said: 

"The,State Penal Code does not define a 

lottery, but our courts have interpreted it in 

aooordanoe with publio usage, to mean a sohen;a 

ox plan which provides for a distribution of . 

prizes by ohance among those !vho have paid, or 

agreed to pay, a consideration for the right 

to participate therein, 28 Tex. Jur, p. 409, 

Sea. 2, and cases oltod in the notes,” 

This departffient has on several oocasions passed 

on the question of what constitutes a lottery, holding in 

(1) Opinion .O-428 to Honorablo Clint A. 

Earha& County Attorney, Rmth County, dated April 

26, 1939, that a number system used by a theatre 

where each scat in the theatre is numbered and 

a ticket is seleotea or drawn from a number of 

tickets containins all the nuaibers on the seats 

and a money'award or other thing of value is given 

to the person sitting in the seat that has a corresponding nuruber with the number drawn is a "lottory" end the operation thereof is a violstion of 

Article 654 of the Fens1 Code. 

(2) Opinion Q-967 to Honorable T0i'm Seay, 

County Attorney, Totter County, dated June 14, 

1939, that a scheme vihereby, in Gubstnnce, a 

theatre owner gives a prize to soI;; patron of 

Honorable Renfro Speed, Page 2 
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OS1 

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Honorable Renfro Speed, Page 3 

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the thsatre present after a drawing fron which 

.soffie patron’s automobile license number may be 

selected, under the Saats presented, constitutes 

a violation of the lottery laws of this state. 

(3) Opinion O-1174 to Ronorable Robert S. 

Cherr/i County .ittorney, Rosque County, dated 

August 10, 1939, that it is a violation of the 

law for the prchants of a given town or community to give their customers tickets with each 

purchsse of merchandise from them, vrhich tickets 

are good for chances upon merchandise or money 

given away at drawings, held. periodiaally in 

the said town or ~cormunity. 

(4) Opinion O-1200 to Ronorable Pobert a. 

Peden, Jr., County Attorney, hatagorda County, 

dated August 12, 1939, that the “Aces quiz Right” 

scheme or plan (under the facts stated to ‘this 

offioe) is a “lottery” and in violation of hrtiClo 634 of the Penal Code of this state, 

(5) Opinion O-1329 to Honorable Jack Borden, 

County Attorney, Parker County, dated ileptomber . 

8, 1939, that a scheme whereby, in substanae, a 

theatre buys the fingerprints of a GitiZ8n of 

the community by selection of one fingerprint 

from the files of the theatrs, is a violation 

of the lottery laws of this s’tate. 

(6) Opin.ion O-1336 to Honorable Taul TV. 

Halt, County Attorney, Travis County, dated September 18, 1939, that a scheme whereby, in substatice, a "suit club” gives credits in trade to 

winning contestants for completing a sentence,, 

etc., constitutes a violation of the lottery 

laws of this state. 

In the case of Griffith Amusement Company 

98, RorCan, 98 2. iYe (2d) 844, it was held that the ele-. 

ments esGentia1 to oonstitutc a lottary are (1) a prize in 

money or thing of value, (2) distribution by chance and 

(3) payment, eitker directly or indirectly, of a valuable 

consideration for the chance to win the prize, See also 

City of Wink vs. Griffith Amusement Company, oupra; Featharstone vs. Independent Service Station Association, 10 :. ?i. 

(26) 124; ?eak vs. United States, 61 Pod. (2d) 973; Grant vs. 

. 
Honorable RenSro Spaed, Pa&e 4 

The State, 112 S. W. 1068. In State vs. Randall;41 Tex. 

296, and Holman vs. The State, 47 3.,X’. 850, It was held 

that any acheme for the distribution of prizes by chance 

is a lottery. Aocordiogly, the “Rank Night*V scheme (City 

of Wink VS. Griffith Amusement Company, oupra), the “Buck 

Night *I sohe.me (Robb and Rowley, et al vs. The State, 127 

S. W. (26) 221), and the “koah’s Ark” soheme (Smith vs. 

The state, 127 9. IV. (2d) 297) have all been held to be 

lotteries. 

?{a believe that the essential elements of a lottery are presented by the facto set forth in your letter. 

The theatre provides a fund or &; a drawin is made and 

the chanc,e element occurs. Eoreover, the patron must be 

presm the theatre When his neme is drawn in order to 

be. designated “movie oritio*’ (and so indireotly furnishes 

oonslderation for the chance. See City of wink vs. Griffith 

Amusement Company, supra), and, thereby becomes eligible for 

the “Golden l;“leece’* # namely,~ passes to the movies and a cash 

a?vard. 

, 

It may be contended by some that the theatre operator has conceived an effective escape from the ,lottery 

laws by providing that the person designated “movie critic*? 

must aotucillp attend the pictures and must actually critiGiz:o, for %hich criticism he will be paid the grand a-:;ard 

in oa8h. ‘&.‘a db not believe ,tho Legislature intended to enact a statute which might be evaded by such subterfuge, and 

this department has heretofore ruled adversely to similar 

GOntSntiOnS. In Opinion 0-132~9, dated September 7, 1939, the 

theatre operator sought to sidestep the lottery principal by 

npurchasing” the Singorprinc OS the winning patron, yet under 

the part.icular faots the scheme, was held to constitute a 

lottery, .,Likeu;lse, in opinion O-1336 of this department, 

dated Bptember 10, 1939, in which a “suit club” was held 

to constitute a lottery, the fact that contestant was corn-. 

pelled to write a twenty-five word statement telling why he 

liked the brand of clothes in question availed the proprietor nothing in escaping the condeaination of Article 654 of 

the Penal Code. 

Consequently, it is the’dpinion of this department, and you are respaotfully advised, that a thoatre opera- ., 

tar conduoting the scheme set forth in your letter would be 
Eonorable lW.Cro Speed, fjage 5 

guilty of operating a lottery a8 prohibited by Article 

654 of the Penal coae of Texas,, 1925, 

Very truly yours 

ATTORNSY GEXGAL OF .T%IAS 

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APPROVEDNOV 21, 1939 

xLf-LA4.M 

ATTORNEY GXNERAL OB' TEXAS 

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