Honorable Fred T. Porter 

Cciunty Attorney 

Kaufman~Countg 

Kaufman, Texas 

Dear Sir: Opinion NO. 0-2063 

RE: Whether or not "Box Office Insurance" constitutes a lottery. 

We have carefully considered the question presented 

in your letter of March 7, 1940, wherein you request the 

opinion of this Department as to whether or not the "BOX Qfflee Insurance Plan" of a local theatre constitutes a lottery 

in violation of Article 654 of the Penal Code. Your letter 

reads In part as follows: 

"I would illce to have 

department on whether the 

stimulating attendance at 

under the authorities in 

is as follows: 

an opinion from your 

following plan of 

theatres is a lottery 

this state. The plan 

"It is called 'Box Office Insurance' and 

a printed policy is issued to each and every 

person contacted by the management of the show 

whether a patron or not. This policy is worth 

the face value of $25.00 under certain conaitions. Once a week, on a certain night selected, the managment calls for numbers to be given 

by persona in the audience. Four numbers are 

asked for, each being below 10, and these four 

numbers when arranged together form the number 

of the policy. Before the issuance of any policy the person receiving such signs an application card which is numbered and put In a file. 

If the person whose application card has the 

number called out by the audience Is present 

in the theatre,he or she receives the cash 

value of the policy; but if the person is not 

in the theatre a't the time of the calling out 

of the number aiid name, then the name of the 

one whose application card was so numbered shall 

be prominently posted in the lobby of the theatre 

for a period of one month, and any time during 
Honorable Fred T. Porter, page 2 O-2063 

the month the holder of that policy can call and 

the management will pay the amount of the policy 

to such holder. If at the end of the one month 

period, no one has called and presented such policy, then the amount of such policy is donated by 

the theatre management to the Parent-Teachers Association of the town or if there is no Parents 

Teachers Association then to some other like 

organization. There 'is attached' hereto a copy 

of the Policy, application card and envelope for 

further Information in regard to the plan. 

Section 47 of Article III, of the Constitution of Texas, 

reads: 

"The Legislature shall pass laws prohlbiting the establishment of lotteries and gift enterurisea in this state, as well as the sale of 

tickets in lotteries, gift enterprises or other 

evasions involving the lottery principal, established or existing, in other states." 

Article 654 of the Penal Code, reads as follows: 

"If any person shall establish a lot~terg or 

dispose of any estate, real or personal; by lottery, he shall be fined not leas than One Hundred 

($100) Dollars nor more than One Thousand ($1,000) 

Dollars; or if any person shall sell, offer for 

sale or keep for sale any t.lckets or part tickets 

in an 

Ten ( $ 

lottery, he shall be fined not less than 

10) Dollars nor more than Fifty ($50) Dollars." 

AS stated ta you in opinion No. O-1819, dated January 

27 1940, the elements essential to constitute a lottery are 

(1s a prize. (2) chance; (3) a consideration. City of Wink vs. 

Griffith Am&ement Company (Texas~ Supreme Court), 100 S. W. 

tit) 695; Griffith Amusement Company vs. Morgan, 98 3. W. (26) 

. It is clear that the first two elements are present -- 

a prize of $25.00 is offered once a week; llkewiae, the chance 

element occurs when the prize is distributed to the fortunate 

"insured", if he is lucky enough to have his "policy" number 

called. Our problem concerns whether or not the necessary 

element of consideration is present. 

In this connection you point out that the money offered may be received by two classes of prize-winners: first, 

those within the.theatre who have an opportunity to witness 

and participate in the proceedings; and secondly, all other 

people who are not in attendance at the theatrd who have made 
Honorable Fred T. 

application for a 

one of the latter 

Porter, page 3 0 -2063 

"Box Office Insurance" policy. In the event 

class of person's policy number is called, 

his name will be posted in a prominent place in the lobby for 

a period of one month, during which time he may call, Indentify himself and receive the prize. 

Insofar as the first class is concerned, that is, patrons actually present in the theatre, there can be no doubt 

that the scheme constitutes a lottery. We quote from the 

language of Chief Justice Cureton, City of Wink vs. Griffith 

Amusement Company, supra: 

" 

. . . In the instant case, there were two 

different classes of possible prize winners, 

namely, the holders of free registration numbers, who chose to remain outside of the theater, 

where neither the show nor the paraphenalia of 

and actual operation of the drawing could be 

seen, and those who, at least on 'Bank Night', 

paid the consideration required at the door, entered the theater, and saw the show, including 

the paraphernalia to be used in the drawing, and 

the actual drawing itself while comfortably seated close at hand so that they might hear without 

fail the announcement of the winner and be present to claim the prize, each privilege a concomitant part of the entire scheme. It is idle to 

B, as to whose who entered the theater and enjoyed the Drivilenea named, that the admissiog 

Charge 

and advantages stated above and the Drize emolument of the arawlniz. This admission charne is inPeDareble ftiom the Drivilenes enumerated, which 

were materlallv different from the Drlvilenes of 

those who remained outside of the theater holdins the so-called 'free' renistration numbers. 

It la ialeto say that the Dasment made for see1 -, in Dart at leaa;Leat;~r6!e 

for t he a ra wi M and the chance Riven. IUZQ 

to be seen and done in the theatre and the ~rivilenes above enumerated which accomDanied them, 

are all a Dart of one and the same show, meaning 

the entire Droceedirxs inside the theater. The 

fact that vart of the things to be enioyed br 

those who Daid at the door were classed as 'free' 

by the defendant in error does not chance the 

legal effect of the transaction, or what was actually done by the defendant in error, namely, 

for the Drice of admission to Rrant the natron 

not only the ODDortunitr to see end hear the DiC-2 
i 

Honorable Fred T. Porter, page 4 0-2063 

m, but to see and hear and enios the habillments of the 'Bsnk NiRht I, drawing, etc., detailed above. We are unable to see in what msnner 

the giving of free renlS.ration numbers to those 

outside of the theater would chanue the lenal 

effect of what was clone'inaide the theater,*. 

which a charge was made; . . ." (Underscoring ours) 

But what of those persons who may participate "free" 

by merely making a plication for a policy and whose name (if 

they are fcrtunate P will. be ,losed in a prominent position in 

the lobby? Does this device constitute an atteupted evasion 

of the lottery laws, or is the scheme outside their purview? 

1% hap been sa'Ld that had those who conducted the famous 

Louisi~ana Lotterv In the early days made good their promise 

to give s free ttcket to the president of each bank in the 

state, still the scheme wnuld not have escaped the condemnation of the laws against lotteries. 

The countless schemes of man to capitalize upon the 

natural cupidity of his fellowman are legion; yet our Texas 

courts have in all cases pierced the veil of subterfuge and 

refused to countenance artifice. This Is the position we believe our courts will take should a case like the present 

come before them. We believe that a consideration does move 

to the donor of the prize in the present instant sufficient 

t3 coiidemn the plan even though participation is allowed by 

non.patrona who have a month tc claim their prize. As in the 

first pa.ragraph of your letter, the purpose of the plan la to 

stimulate attendance, and, we suppose in aaait:on serves as 

an advertising scheme. Is this not at least an indirect consideration moving to the owner of the theatre? 'We believe so. 

As stated by Judge Graves in Cole v. State, 112 S. W. 

(2d) 725, on motion for rehearing: 

I, 

. . . A consideration may consist of a 

benefit movin& to the donor of the prize renerdless from whom the benefit may borne. See Corpus 

Jurls, vol. 13, p. 311. Appellant testified 

thEt he thought since eatablishirig a bank night 

that it is possible on Tuesday night it (the 

attendance) had increased some, and that the 

advertisement for his theater, he thought, was 

benefited by bank night, and, in the light of 

c'~r knowledge of human nature, we feel, sure that, 

unless such henefits had accrued?, he would not 

ha,ve continued such bank ntghta. (Unaerscorlng 

curs) 
Honorable Fred T. Yorter, page 5 O-2063 

Likewise,~as stated by Chief Justice Gallagher in Robb 

hnd Rowle united, Inc., 

s. w. (2af 221; 

‘et al v. State (C. C. A. 1939), 127 

“Appellants apparently concede .that ‘Buok’ 

nights ab operaMa by them involved tile distribution of cash awards by chance, but they contend that nb conaidercition iias received by them 

for such distribution. Substantially the same 

contention was made in the case of State v. Robb 

& Rowley.Uiiited, Ihc. ;Tex. Ciir. App., 118 9. W. 

(2d) 917, and the court, in its opinion in that 

case, held that while no direct charge was made 

for registration, nevertheleaa the inoreaaed 

patronage expected by reason of the operation 

of such scheme, though only an indirect benefit, 

was a sufficient consideration to warrant its 

being classified as a lotter 

r 

See also: Cole 

v. State, 133’Tex. Cr. R. 54 , 112 5. W; 2d.725, 

2 and j.*.City of Wink v. Griffith, 100 9. 

grq&) 695, 699, par. 12, and authorities therie 

cl.tea i, State v: U&wan, MO. Sup., 120 S. W. (26) 

1098. 

.~ 

In Featherstone v. Independent Serviaii Station Associati6n, ,(C.C.A. 1928) 10 S. W. (26) 124, defendants distributed 

tickets to patrons of their service station good for a chadce 

on an,automobile to be given away. .Defendants likewise gavel 

away ‘&me ticket free to those who had not purchased merchandise, and the oourt said!,, 

“This testimony falls to show any material 

ohange in the eoheme as originally operated, but 

reveals a change simply in the plan o? its operation. While dealers, under the nti plan, d&stributed tickets to noncustomers as well as to 

customers, .it *eems that the scheme was to dia- ‘. 

tribute tickets, in the me”in to customers; as 

the evidenoe discloses that only 8 few negligible in number, were given to persons oiher than 

oustomers. That the giving of tickets, at-d the 

drawings and distribution of prices, were inducem6nts.to patronage and unquestionably lured 

customers, is shown from the very satisfactory 

business results that followed. Patronage thus 

induced was the consideration that paseed from ,, 

the ticket hdlder for the chanoe received , . . . . . 

In Smith v. ‘State, (Ct. Cr. App. 1939) 127 S. W. (26) 

297, defendant received a license fee from,,retail m&chants 

for the privilege of joining a ‘%oah’a_ Ark orga?icatlon. 
Honorable Fred T. Porter, page 6 Q-2063 

The merchants in turn distributed cards and stamps to the 

public, upon the completion of which cards a person was entitled to participate in a chdnce to receive a substantial 

prize. The court tield that payment of these license fees to 

defendants by the merchants operated'aa~~an~indirect tionairleration for all persons who can@ to such merchants' place of 

business and requested a stamp-.or card for the purpose of 

entering into this contest. '~The court held this scheme to 

constitute a lottery and said: 

"We think'it clearly appears herein that 

appellant received a fee from the 145 misrchanta 

and dealers who paid hiti a license fee and joined his 'Noah's Ark' organization, and that the 

payment of such fee operated as a consideration 

for the entering Into the drawing contest of all 

persons who'came to such dealers' place of buainetis and requested a'card or a stamp for the purpose of entering this contest. That this license 

fee was the.uasment of a consideration movinu indirectly from the contestant and directly to the 

auuervisor or owner of this scheme. Moving indirectly, it may be for the benefit of the contestant 

through his merchant or dealer who also received 

a benefit therefore presumably at least, in the 

advertising that he was obtaining &a well as playing upon the natural cupidity of mankind to obtaln~ 

something for nothing, and this moving it completes 

the trinity of a prize arrived at by chance, and 

based upon a consideration, not only given by the 

conteatant.but received by the donor. erscoring ours) 

(UM 

In view of the authorities cited and for the reasons 

stated, you are respectfully advised that it is the opinion 

of this Department that the "Box Office Inauratice" plan under 

the facts stat&3 constitutes a lottery in violation of Article 

654 of the Penal Code of this State. 

Very truly yours 

JDS :LM:wc ATTORNBY GENERAL OF TKXAS 

APPROVED MAR 18, 1940 

s/Gerald C. Mann 

By s/Walter R. Kbch 

Assistant 

ATTORNEY GENERAL OF TEXAS 

By a/J&me%. D. Stillen 

Approved OpIniofi Committee James D. Smullen 

By s/BWB Chairman