OFFICE OF THE AlTORNEY GENERAL OF **TEXAS AUSTIN**  **QRILO c.**  **UAWN ATramluv** 

**. ‘** **“ anLL** 
Eon. Jack Borden, County Attorney parker County Ueatherford, Texas Dear Sir:.

Pour. request tlon has been received OpinionRo. QRe: Does a pl eby a theatre of a cItLzen

of the Constltu

The plan vhere citizenof the co stantially

as fol uys the fingerprintof a d of operatlonIs subIn' the front lobby graph cards are kept ngerprlnt Ink vhere rd, with their address,and the place provided for it. le with other cards already The people signing these to buy an admlsslonticket nor order to sign and fingerprint.. gnated night set aside each veek by the GERPRINTNIGRT, the Pile with all: the erprintedcards are taken to the stage re vhere someone Is selected from the In case of some one being famlllarwith flnelng appointedto make a selectionof one fingerprint

he thinks is the best or has some particular characteristic

he favors. The flngerprInt;being on the back side of the card and the name on the front side shows that.thIsselectionIs made from the fingerprint only and not the individualname. This card Is then handed to a secondperson on the sta$e vho turns the card over and calls the name of the autographappearing thereon. If this person whose name Is called comes for-

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Bon. Jack Borden, Page 2

ward to the stagewithin three minutes from the time the name 18 called and Identifieshis autographand f'lngerprint,

they are then paid the weekly amount posted by the theatre for the purchase of th&,fingerprint snd.theyare requestedto sign a card **giving** the theatre the right to purchase this fingerprintand use It for their files only except In the case where it may be necessary to use for IdentlfIcatIon caused by some accident or otherwise. If'thlsperson vhose‘n'+evas called Is not there,within the designatedtime, to identifyhis autograph,fingerprintand sign the card to permit the theatreto make the purchase as stated, this veekly amount set aside by the theatre to purchase the fIngerprIntIs carried forward to the next week and then at that time It 1s added to the regularweekly amount set aside for each week and so on until a purchase Is actuallymade of a fingerprint. "The theatrehas the right to hold all fingerprints given In their files at the theatre except as stated above In case of accidents,and the right to use those purchased for educational

purposes only. "Uhll&en under 14 years of age do not participate. "Eachperson who sells the right to use their flngerprint under this method shall sign the card **giving** the theatre the right to purchase same and place It In the files vlth the otherspurchasedand a purchase cennotbe msde If this card Is not signed at the proper time." Article 654 of the Penal Code reads as follows: *If any person shall establisha lottery or dispose of aw estate, real or personal,by lottery,he shall be fined not less than one hundred nor more than one thousand dollars; or if any person shall sell, offer for sale or keep for sale any ticket or,part ticket In any lottery, hel;z;;lmbefined not less than ten nor more than fifty

. We quote from Tex. Jur., Vol. 28, p. 409, as follows; "The term lotteryhas no technical sIgnlfIcatIonIn the law, and since our statutedoes not provide a definltlon, Its meaning must be determinedfrom popular usage. According to that test a lottery 1s a scheme for the distributionof prizes by lot or chance among those who have paid or agreed to pay a considerationfor the right to participatetherein, or the distributionItself.
. . ."

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Eon. Jack Borden, Page 3

See the oases of -- State vs. Randle, 41 Texas 292; Featherstone

vs. IndependentService Station Associationof Texas, 10 S.W. (26) 124; pulbrlghtvs. State, 38 S.W. (2d) 87. finthe case of Featherstonevs. IndependentService StationAssociation,supra, the court defined a lottery as follovsr "A lottery for all practicalpurposes may **be** defined as any scheme for the distributionof prizes, by lot or chance,where one on pagig money or giving other thing of value to another obtains a token which entitled him to receive a larger or smallervalue or nothIng, as some formula or chancemay determIne." The Federal Circuit Coti of Appeals In the case of Peek v. United States, 61 **F.** (26) 973, has given the followingdeflnltlon of a lottery:

"Acheme for the dIstrlbutIonof prizes or things of value by lot or chance among persons who have paid or agreed to pay a valuable consideration **for** the chsncektoobtain a prize. And again, a sohemeby which a result is reached by some action or means taken, in which resultman's chdoe or design enable him to knov or determine

. . . until the same has been accomplished." The case Boatwrightvs. State, 38 S.W. (26) 87, defines a lottery ast

"Any scheme for distributionof prizes by &an&." The case of GriffithAmusement Co. vs. Morgan, 98 S.W. (26) 844, holds the elements essential to consltutea lottery are us prize In money or other thing of value, its distribution by chance in payment, either directly or indirectly,of a valuable consideration

for the chance to win the prlse. The case of State vs. Randle, supra, holds that any scheme for the distributionof prizes by chance Is lottery and It matters not by what name such a schememay be knovn. It comeswithin the prohibitionof Article 654 of the Penal Code.Eon. Jack Borden, Page 4

J!n the case of City of Wink vs. GriffithAmusementdo,,. 100 SW (L'd)

695, the court saXd that the necessary elementsof mea "Offeringof a prize, award or prize by chanae, and giving of consideration for opportunitiesto win prize:" The above mentioned requirementthat the winner appear uu~cIaIm tha prize vlthln th rec. (3), minutes from the time hl6 name la announcedat the theatre,undoubtedlyoperat\es as a trea mondouspressure on any one desiring to paxticIpate,to pay the prlc f of admission. That Is undoubtedlythe purpose, and It Is aqua Iy obvious that the award is made out of funds accumulated. from-paid

admissions..In short,? the plan Is a violationof Art.14 ale 654 of the Penal Code.

In view of the foregoingauthorities you are respectfully adifsedthat it Is the opinion of this departmentthat the above nentlonedscheme or plan whereby a sheatrebuys the fingerprints of a.cItleenof the communityas above outlined is a violation of Article,

654 of the Penal Code. Trusting that we have satisfactorily answeredyour inquiry,

ve remain Yours very tNly ATTORNRYGRNEiRAL OFmS
BY /i/ A~rdell

WIllIams

Approved: Opinion CommIttee by BWB, Chairman