## The Attorney General of Texas

JIM MATTOX Attorney General August 14. 1985

Supreme Court BuildinQ P. 0. BOX 12546 Austin, TX. 76711-2546 5121475-2501 Telex 9101674.1387 Telecopier 512/475-0266

714 Jackson, Suite 709 Dallas, TX. 75202.4506 214l742-6944 EouorableStan Schlueter chairman Ways and Means Coamittee Texas House of Representatives P. 0. Box 2910 Austin,Texas 78769 Dear Representative Schlueter: opinion No. JR-341 Re: Legalityof foreignlottery under Texas law

You have aubaitted two advertisements for lotteries held in foreigncountries,

me in West Germanyand one in Canada. You inquire 4624 Alberta Ave.. Suite 160 about the legality of such lotteries. You do not inquire whether El Paso. TX. 793052793 persona located in Texas who respond to such advertisements violate 915/533-3464 any law.

1001 Texas, Suite 700 Each advertisement directsthe participant to send his money and Houston,

TX. 77002-3111 order form ~tothe i'oreigu address stated therein. The lottery sends 713/223-5886 tickets,a drawing schedule, or other informatiqn to the participant. The drawingtakesp:.ace in the lottery's

home countryand notification is sent to winners. 806 Broadway, Suite 312 Federal prohibitions against transporting or Lubbock, TX. 79401-3479 mailing lottery tlcketa, advertisementsof lotteries and other 606/747-5238 materials relatedto lotteries do not apply to transporting or mailing

4309 N. Tenth. Suite B McAHen, TX. 76501-1665 5121662-4547

200 Mai” Plaza. suite 400 (2) to ai addressee within a foreign country of equipment tickets, or material designed to be used within that foreign **country** in a lottery which is authorized by the law of that foreign country. ;;;g;;;;vTX.

76z052797

18 U.S.C. 11307(b)(:!). The German lottery is describedin the advertisement as a state A” Equal OpportUnityI lotterywith prizes guaranteed by the German government. We assume Alflrmative Action E~Wovn* for purposes of tt.is opinion that both lotteries are legal where conducted. The Texas Constitution provides that "[tlhe Legislature shall pass laws prohibiting lotteries

and gift enterprises in this State." Tex. Const.art. III:, 047a. The statutes

prohibiting

lotteries

are found in chapter47 of the Penal Code. The relevant provisions

includethe following:

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Donorable Stan Schlueter

- Page 2 (JM-341)

Section47.01. Definitions
In this chapter: (1) 'Bet' means an agreementthat, dependent on chance even though accompanied by some skill, one stands to kin or lose something of value.
. . . (2) 'Gamblingplace' means any real estate, building, room, ter.t, vehicle, boat, or other property

whatsoever,

one of the usea of which is the making or setl:Mng of bets, the receiving, holding, recording, or forwarding of bets or offers to bet, or zhe conducting of a lotteryor -- the playingof gambling devices.

. . . . (5) 'Gambling

paraphernalia'

means any book, instrument.

or app.%ratua

by means of which bets have been or may be recorded or registered; any record, ticket, certificate, bill, slip, token, writing,scratchsheLet, or othermeans of carrying on bookmaking,

wagering

pools, lotteries,

numbers, policy,or similargames. (6) 'Lottery'ueans any scheme or procedure whereby one or more prieea are distributed by chance among perscns who have paid or promised consideration

for EL chance to win anything of value, whether such scheme or procedureis called a pool, lottery, xffle. gift, gift enterprise, sale,policy game, or some othername. 147.02. Gambling (a) A person ccmmitaan offenseif he: (1) makes i#

bet on the partial or final result of a gems or contest or on the performance of s participant in a game or contest. . . . 047.03. GamblingI'romotion (a) A person c-its an offense if he intentionally or 'knowingly does any of the following

acts:

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Honorable Stan Schlueter

- Paf;e 3 (JM-341)

(1) operater; or participates in the earnings

of a gar~bling

place; (2) receivers,,

records, or forwardsa bet or offer to bet; (3) for gain, becomes a custodian of anything

of value:

bet or offeredto be bet; (4) sells chanceson the partial or final result of or on ,the margin of victory in any game or contest Ioron the performance of any participantin zany game or contest or on the result of any apolitical nomination,appointment, or electicnor on the degree of success of any nominee, .ippointee, or candidate;

or (5) for g&u, sets up or promotes any lotteryor sells or offers to sell or knowingly possessesfor transfer, or transfers

any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery. 147.04. Keepinga :ambling Place (a) A person G:ommits an offense if he knowingly uses or permits another to use as a gambling place any real estate, building, room, tent, vehicle,

boat, or other property whatsoever owned by him or alder his control, or rents or lets any such proprxty with a view or expectation that it be so used. 147.07. Possession of Gambling

Paraphernalia (a) A person commits an offense if. with the intent to further gambling,he knowingly owns, manufactures,

tranrifers

commercially

or possesses gambling

paraphernalia. (Emphasis added). The chapter47 provisions on lotteries

must be read together with section 1.04 of the Penal sode, which establishesthe territorial jurisdiction

of Texas over criminal offenses: (a) This atatc! has jurisdiction over an offense that a perst?n commitsby his own conduct the conduct of another for which he is Zninelly responsible if:

p. 1555Honorable Stan Schlueter

- Page 4 (JM-

34.1)

(1) either the conduct or a result that is an element of the. offense occurs inside this state; (2) the con&uct

outsidethis state constitutes an attempt to commit an offense inside this state; (3) the coninctoutsidethis state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy

occurli insidethis state. . . . The Texas SupremeCourt h,ss stated that a lotteryconducted in a foreign country did not viol,lte the gambling statutesof Texas. In Caatilleja

v. Camero, 414 S.V.2d 424 (Tex. 1967). the Texas Supreme Court considered

an agreement

made in Texas to share any proceedsthat might be won in the Mexican National Lottery. The jointly owned ticketwas purchasedin Mexico. In considering whether the agreement was enforceable,

the court stilted: The agreement . . . to jointly purchase a ticket in the National Lottery of Mexico and to divide the proceedf:, if any, was not an illegal contract. it neitlE!r violated nor aided in the violation of any Isming statute of Texas. The only other jurisdic:tion involved

was Mexico. In Mexico the purpose XE the contract had the express approval of the MIzxican government in that the Mexican Eovernment has a revenue interest in the lottery.-

Thus the agreement was to do a lawful thing -- participa,;? in the National Lottery of Mexico, in a lawful-manner -- by going to Mexico. (Emphasis

added).
414 S.W.2d at 426. See also ,Crutchfield v. Rambo, 86 S.W. 950 (Tex. Civ. App. 1905,

writCaatilleja

v. Camero was decidedprior to the 1973 revisionof the Penal Code,which made sullstantive changesin the criminallaw of Texas. See Sharpe,Introduction to 1973 RevisionTexas Penal Code, 1 Penal CodeVII; AttorneyGeneralOpinionH-204 (1974). Moreover,it did not involveadvertising of the foreignlotteryin Texas. Finally, the participantin the lottery traveled to Mexico to purchase the lottery tickets. We will thereforeconsider whether the territorial jurisdiction

of this state extends to any activities of the foreign lotteriesthat would violate Penal Code provisions against gambling. See Penal Code 01.04. - The foreign lotteries11~1 not possess gamblingparaphernalia In Texas or keep a gambling place in Texas. See Penal Code 447.04. -
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. ’

Ronorable Stan Schlueter

- Paj;e 5 (JM-341)

47.07. Nor do they commit %n Texas any of the acts of gambling promotion

described

in subsect:lons

(1) through (4) of section47.03(a) of the Penal Code. Subsection (5) of section 47.03(a)makes it an offenseto promoteany lotteryor offer to sell a lotteryticket. It is possiblethat the advertisements you have submitted to us couldbe evidenceof lotterypromotionin Texas or offeringlotteryticketsin Texas. However,the mere presence of the advertisements in Texas does not prove a violationof secf:i.on 47.03(a)(S).We have no information on the foreignlotteries' role, if any, in transmitting the advertisements to Texas. Moreover, this matter raises issues of free speech rights and federalpower over commerce with foreign countries. See, a, Martinv. United States,389 F.2d 895 (5thCir. 1968) (18 U.S.C. 11084, which prohibits trrn~smission of wagering information in interstatecommerce,does not. violate First Amendment). We cannot attempt to resolve these importantissues on the meager facts before **US.**

Whethera lottery held in a foreigncountrycan violate Texas Penal Code section 47.03(a)(5) by advertising

and ofl'ering

lottery tickets in Texas involvesfact questions.
Very trulyyo s 

# J-l&

.
JIM MATTOX Attorney

Generalof Texas TOM GREEN FirstAssistant

Attorney

General DAVID R. RICRARDS Executive

Assistant

Attorney

General ROBERTGRAY Special

Assistant

Attorney

General RICK GILPIN Chairman,

OpinionCosunittee Prepared

by Susan L. Garrison Assistant

Attorney

General

p. 1557Honorable **Stan** Schlueter

- Page 6 (JM-341)

APPROVED: OPINIONCOMMITTEE Rick Gilpin,Chairman Colin Carl Susan Garrison Tony Guilloty Jim Hoellinger Jennifer

Riggs Nancy **Sutton** SarahWoelk

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