Honorable Fred T. Porter

Cciunty Attorney Kaufman~Countg Kaufman, Texas

Dear Sir: Opinion NO. 0-2063 RE: Whether or not "BoxOffice Insurance" constitutes a lottery.

We have carefully considered the question presented in your letter of March 7, 1940, wherein you request the opinion of thisDepartment as to whether or not the "BOX Qfflee Insurance Plan" of a local theatre constitutes a lottery in violation ofArticle 654 of the Penal Code. Your letter reads In part as follows:

"Iwould illce

to have department onwhether the stimulatingattendance 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 'BoxOffice Insurance'and
a printed policy is issued to each and every person contactedby the management of the show whether a patron or not. This policy isworth 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 issuanceof any policy the person receiving such signs an application card which is numbered and put In a file. If the personwhose application card has the number called out by the audience Ispresent in the theatre,heor she receives the cash value of the policy;but if the person isnot in the theatre a'tthe time of the calling out of the number aiid name, then the name of the
onewhose application card was so numbered shall be prominentlyposted in the lobby of the theatre for a period of one month, and any time duringHonorable Fred T. Porter, page 2 O-2063

the month the holder of that policy can call and the managementwill pay the amount of the policy to such holder. If at the end of the onemonth period, no one has called and presented such policy, then the amount of such policy is donated by the theatremanagement to the Parent-TeachersAssociationof the town or if there isno Parents TeachersAssociation then to some otherlike organization. There 'is attached'

heretoa 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:

"TheLegislature shall pass laws prohlbiting the establishment of lotteries and gift enterurisea in this state, as well as the sale of tickets in lotteries,gift enterprisesor other evasions involving the lottery principal,established or existing, in other states."

Article 654 of the Penal Code, reads as follows:

"Ifany person shall establish a lot~terg or dispose of any estate, real or personal;by lottery, he shallbe fined not leas than OneHundred ($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 opinionNo. O-1819,dated January 27 1940, the elements essential to constitute a lottery are (1sa prize. (2) chance; (3) a consideration. City ofWink vs. Griffith Am&ement Company (Texas~ Supreme Court), 100 S. W. tit) 695; GriffithAmusement Companyvs. Morgan, 98 3. W. (26)

. It is clear that the first two elementsare present -- a prize of $25.00 is offered once a week; llkewiae, the chance element occurswhen the prize isdistributed 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, thosewithin the.theatrewho have an opportunity towitness and participate in the proceedings; and secondly,all other peoplewho are not in attendance at the theatrdwho have madeHonorable Fred T.

application for a one of the latter Porter, page 3 0-2063

"BoxOffice 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 onemonth, during which time he may call, Indentify himself and receive the prize.

Insofaras 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 ofWink vs. Griffith Amusement Company, supra:

"

.. . In the instant case, therewere two different classes of possible prizewinners, namely, the holders of free registrationnumbers, 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 thosewho, at least on 'BankNight', paid the considerationrequired at the door, entered the theater, and saw the show, including the paraphernalia to be used in the drawing, and the actual drawing itselfwhile comfortably seated close at hand so that they might hearwithout fail the announcement of the winner and be present to claim the prize, each privilegea 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 ftiomthe Drivilenes enumerated,which
were materlallvdifferent from the Drlvilenes of thosewho remained outside of the theater holdins the so-called 'free'renistration numbers. It la ialeto say that the Dasmentmade for see1 -, in Dart at leaa;Leat;~r6!e for t IUZQ he ra M and the chance Riven. a wi to be seen and done in the theatre and the ~rivilenes above enumeratedwhich 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 thosewho Daid at the door were classed as 'free' by the defendant in error does not chance the legal effect of the transaction, orwhat 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-2i

Honorable Fred T. Porter,page 4 0-2063

m, but to see and hear and enios the habillments of the 'BsnkNiRhtI,drawing, etc.,detailed above. We are unable to see inwhat msnner the giving of freerenlS.ration numbers to those outside of the theaterwould chanue the lenal effect ofwhat was clone'inaidethe theater,*. which a chargewas made;

. . ." (Underscoringours)

But what of those persons who may participate "free" by merelymaking a plication for a policy andwhose name (if they are fcrtunate P will. be ,losedin a prominentposition in the lobby? Does thisdevice constitutean atteupted evasion of the lottery laws, or is the scheme outside theirpurview? 1% hap been sa'Ld

that had those who conductedthe famous Louisi~ana

Lotterv Inthe early days made good theirpromise to give s free ttcket to the president of eachbank in the state, still the schemewnuld not have escapedthe condemnation of the laws against lotteries.

The countless schemes of man to capitalizeupon the natural cupidity of his fellowman are legion;yet our Texas courts have in all cases pierced the veil of subterfugeand refused to countenanceartifice. This Is the positionwe believe our courtswill take should a case like the present
come before them. We believe that a considerationdoes move to the donor of the prize in the present instantsufficient t3 coiidemn

the plan even though participation isallowed by non.patronawho have a month tc claim their prize. As in the first pa.ragraph

ofyour 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 considerationmoving to the owner of the theatre? 'Webelieve so.

As statedby Judge Graves in Colev. State, 112 S. W. (2d) 725, onmotion for rehearing:

I,

. . .A considerationmay consist of a benefitmovin& to the donor of the prize renerdless fromwhom 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 suchhenefits had accrued?, he would not ha,vecontinued suchbank ntghta. (Unaerscorlng curs)Honorable Fred T. Yorter, page 5 

### O-2063

Likewise,~as stated by Chief Justice Gallagher in Robb hndRowle united, Inc.,
s. w. 

### (2af221; ‘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 madein the case of State v. Robb &Rowley.Uiiited, Ihc. ;Tex. Ciir. 

### App.,1189.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 , 1125.W; 2d.725, 2 andj.*.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 

### oftheir service station good 

### for a chadce
on an,automobile to be given away. .Defendants likewise gavel away‘&me ticket free to those whohad not purchased merchandise, and the oourt said!,,

“This testimony falls to showany 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”into 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-dthe 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 personwas entitled to participate in a chdnce to receive a substantial prize. The court tieldthat payment of these license fees to defendantsby themerchants operated'aa~~an~indirecttionairleration for all personswho can@ to suchmerchants' place of business and requested a stamp-.or card for the purpose of entering into this contest. '~Thecourt 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 dealerswho paid hiti a license fee and joined his 'Noah'sArk' organization,and that the payment of such fee operatedas a consideration for the entering Into the drawing contest of all personswho'came to such dealers' place of buainetis and requested a'card or a stamp for the purpose of entering this contest. That this license feewas the.uasment of a considerationmovinu indirectly from the contestant and directly to the auuervisor or owner of this scheme. Moving indirectly, itmay be for the benefit of the contestant through his merchant or dealer who also received

a benefit therefore presumably at least, inthe advertising that hewas obtaining&a well as playingupon 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.butreceived 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 thisDepartment that the "BoxOffice 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 ATTORNBYGENERAL OF TKXAS

APPROVED MAR 18, 1940 s/Gerald C. Mann By s/WalterR. Kbch Assistant ATTORNEY GENERAL OF TEXAS By a/J&me%. D. Stillen Approved OpIniofi Committee James D. Smullen By s/BWB Chairman