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 

Eouorable Stan 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: Legality of foreign lottery 

under Texas law 

You have aubaitted two advertisements for lotteries held in 

foreign countries, me in West Germany and 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 directs the participant to send his money and 

Houston, TX. 77002-3111 order form ~to the i'oreigu address stated therein. The lottery sends 

713/223-5886 tickets, a drawing schedule, or other informatiqn to the participant. 

The drawing takes p:.ace in the lottery's home country and notification 

is sent to winners. 

806 Broadway, Suite 312 

Federal prohibitions against transporting or 

Lubbock, TX. 79401-3479 

mailing lottery tlcketa, advertisements of lotteries and other 

606/747-5238 materials related to 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 described in the advertisement as a state 

A” Equal OpportUnityI lottery with 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 chapter 47 of the 

Penal Code. The relevant provisions include the following: 

p. 1553 
, 

Donorable Stan Schlueter - Page 2 (JM-341) 

Section 47.01. Definitions 

In this chapter: 

(1) 'Bet' means an agreement that, dependent 

on chance even though accompanied by some skill, 

one stands to kin or lose something of 

value. . . . 

(2) 'Gambling place' 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 lottery or -- 

the playing of 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, scratch sheLet, or other means of carrying 

on bookmaking, wagering pools, lotteries, numbers, 

policy, or similar games. 

(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 procedure is called 

a pool, lottery, xffle. gift, gift enterprise, 

sale, policy game, or some other name. 

147.02. Gambling 

(a) A person ccmmita an offense if 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. Gambling I'romotion 

(a) A person c-its an offense if he 

intentionally or 'knowingly does any of the 

following acts: 

p. 1554 
, 

Honorable Stan Schlueter - Paf;e 3 (JM-341) 

(1) operater; or participates in the 

earnings of a gar~bling place; 

(2) receivers,, records, or forwards a bet 

or offer to bet; 

(3) for gain, becomes a custodian of 

anything of value: bet or offered to be bet; 

(4) sells chances on the partial or final 

result of or on ,the margin of victory in any 

game or contest Ior on the performance of any 

participant in zany game or contest or on the 

result of any apolitical nomination, appointment, or electicn or on the degree of success 

of any nominee, .ippointee, or candidate; or 

(5) for g&u, sets up or promotes any 

lottery or sells or offers to sell or knowingly 

possesses for transfer, or transfers any card, 

stub, ticket, check, or other device designed 

to serve as evidence of participation in any 

lottery. 

147.04. Keeping a :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 chapter 47 provisions on lotteries must be read together with 

section 1.04 of the Penal sode, which establishes the territorial 

jurisdiction of Texas over criminal offenses: 

(a) This atatc! has jurisdiction over an 

offense that a perst?n commits by his own conduct 

the conduct of another for which he is 

Zninelly responsible if: 

p. 1555 
Honorable 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 outside this state constitutes an attempt to commit an offense inside 

this state; 

(3) the coninct outside this state constitutes a conspiracy to commit an offense inside 

this state, and an act in furtherance of the 

conspiracy occurli inside this state. . . . 

The Texas Supreme Court h,ss stated that a lottery conducted in a 

foreign country did not viol,lte the gambling statutes of 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 proceeds that 

might be won in the Mexican National Lottery. The jointly owned 

ticket was purchased in 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 decided prior to the 1973 revision of 

the Penal Code, which made sullstantive changes in the criminal law of 

Texas. See Sharpe, Introduction to 1973 Revision Texas Penal Code, 1 

Penal CodeVII; Attorney General Opinion H-204 (1974). Moreover, it 

did not involve advertising of the foreign lottery in Texas. Finally, 

the participant in the lottery traveled to Mexico to purchase the 

lottery tickets. We will therefore consider whether the territorial 

jurisdiction of this state extends to any activities of the foreign 

lotteries that would violate Penal Code provisions against gambling. 

See Penal Code 01.04. - 

The foreign lotteries 11~1 not possess gambling paraphernalia In 

Texas or keep a gambling place in Texas. See Penal Code 447.04. - 

p. 1556 
‘. ’ 

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 section 47.03(a) 

of the Penal Code. Subsection (5) of section 47.03(a) makes it an 

offense to promote any lottery or offer to sell a lottery ticket. It 

is possible that the advertisements you have submitted to us could be 

evidence of lottery promotion in Texas or offering lottery tickets in 

Texas. However, the mere presence of the advertisements in Texas does 

not prove a violation of secf:i.on 47.03(a)(S). We have no information 

on the foreign lotteries' role, if any, in transmitting the advertisements to Texas. Moreover, this matter raises issues of free speech 

rights and federal power over commerce with foreign countries. See, 

a, Martin v. United States, 389 F.2d 895 (5th Cir. 1968) (18 U.S.C. 

11084, which prohibits trrn~smission of wagering information in 

interstate commerce, does not. violate First Amendment). We cannot 

attempt to resolve these important issues on the meager facts before 

US. 

Whether a lottery held in a foreign country can 

violate Texas Penal Code section 47.03(a)(5) by 

advertising and ofl'ering lottery tickets in Texas 

involves fact questions. 

Very truly yo s J-l& . 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICRARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Cosunittee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 1557 
Honorable Stan Schlueter - Page 6 (JM-341) 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guilloty 

Jim Hoellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1558