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 orother 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 ofWink vs. GriffithAmusenient.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 aooordanoewith publio usage, tomean a sohen;a ox planwhich provides for a distribution of

. prizes by ohance among those !vhohave 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-428to Honorablo Clint A. Earha& County Attorney, Rmth County, datedApril 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 nuaiberson 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 schemevihereby,in Gubstnnce, a theatre owner gives a prize to soI;; patron of Honorable Renfro Speed, Page 2.x?oz

OS1

:li3 Honorable Renfro Speed, Page 3 ‘.*

the thsatre present after a drawing fronwhich .soffie patron’s automobile license numbermay 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 ticketswith each purchsse ofmerchandise from them,vrhichtickets are good for chances uponmerchandise ormoney given away at drawings, held.periodiaally in the said town or~cormunity. (4)Opinion O-1200 toRonorable Pobert a. Peden, Jr., CountyAttorney,hatagorda County, dated August 12, 1939, that the “Aces quiz Right” scheme or plan (underthe 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 schemewhereby, in substanae,a theatre buys the fingerprints of a GitiZ8n of the communityby 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 toHonorable Taul TV. Halt, County Attorney, Travis County, dated September 18, 1939, that a schemewhereby, in substatice,

a "suit club” gives credits in trade to winning contestants for completing a sentence,, etc., constitutesa violation of the lottery laws of this state.
In the case of Griffith Amusement Company 98, RorCan, 98 2. iYe (2d)844, itwas 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 considerationfor the chance to win the prize, See also City of Wink vs. GriffithAmusement Company, oupra; Featharstonevs. 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 thatany acheme for the distribution of prizes by chance is a lottery. Aocordiogly, the “RankNight*Vscheme (City ofWink **VS.** GriffithAmusement Company, oupra), the “Buck Night *Isohe.me(Robband Rowley, et al vs. The State, 127 S. W. (26) 221), and the “koah’sArk” soheme (Smithvs. The state, 127 9. IV. (2d)297) have all been held to be lotteries.

?{abelieve that the essential elements of a lottery are presented by the facto set forth inyour letter. The theatre provides a fund or &; a drawin ismade and the chanc,e

element occurs. Eoreover, the patronmust be presm the theatreWhen his neme is drawn in order to be. designated “movie oritio*’(andso indireotly furnishes oonslderation for the chance. See City of wink vs. Griffith Amusement Company, supra),and,therebybecomes eligible for the “Golden l;“leece’* #namely,~passes to themovies and a cash a?vard.

, Itmay 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,thoLegislature intended to enact a statutewhich might be evadedby such subterfuge, and thisdepartment has heretofore ruled adversely to similar GOntSntiOnS. In Opinion 0-132~9, dated September 7, 1939, the theatreoperator sought to sidestep the lottery principalby 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, inwhich a “suit club”was held to constitutea lottery, the fact that contestantwas corn-. pelled towrite a twenty-fiveword statement tellingwhy he liked the brand of clothes in question availed the proprietornothing in escaping the condeaination of Article 654 of the Penal Code.

Consequently, it is the’dpinion of thisdepartment, and you are respaotfullyadvised, that a thoatre opera- ., tar conduoting the scheme set forth in your letter would beEonorable lW.Cro Speed, fjage5

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 *

APPROVEDNOV 21, 1939
xLf-LA4.M ATTORNEYGXNERALOB' TEXAS

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