Honorable Fred T. Porter 

County Attorney 

Kaufman County 

Kaufman, Texas 

Dear Sir: Opinion Ro. O-1819 

Re: Whether "Qu1z.s Night" 

~,,~.~,of' Kaufman Theatre 

constitutes a lottery. 

We have'forreply your letter of January 20, 

1940, requesting the opinion of this department as to 

whether or not the following scheme constitutes a lot- 

;zr;%as 1s made unlawful by the Penal Code of this 

. We quote from your letter: 

"A party here in this County Is contemplating the operation of a !Qulzz Night', as 

will be described here; and I have given the 

opinion that it Is a lottery. I would appreciate an opinion from your office as to 

whether same is a violation of the lottery 

laws of Texas. It will be operated as follows: 

"Persons who attend will be charged $.25 

for admlsslon and will be privileged to submit 

a question to be answered on the program. 

Each person will be given a ticket on which 

there till be a stub, with number corresponding on the stub and the ticket. The stub will 

be dropped Into a box,' and the ticket retained 

by the person. The questions submitted by the 

customers will be signed by the customer and 

dropped Into a box. The one In charge of the 

program ~111 reach Into the box where the ,ques-- 

tions':have been placed and draw therefrom a:~. 

question; and then draw a stub from the box 

Into which such stubs have been placed, and 

the person who has the number that corresponds 

with the stub wFl1 then be given an opportunity to answer the question. If he succeeds In 
Hon. Fred T. Porter, page 2 (o-1819) 

answering the question correctly, then he 

will be given a prize donated by one of 

the merchants who Is lnterested In the 

matter as an advertising scheme. To the 

person whose question is used, there wlll 

be paid $1.00." 

Section 47 of Article III of the Constitution 

of Texas reads: 

"The Legislature shall pass laws prohibiting the establishment of lotteries and 

gift enterprises In this state, as well as 

the sale of tickets in lotteries, gift enterprlses or other evasions Involving the 

lottery principal, 

In other states." 

established or existing, 

Pursuant to such command the Legislature passed 

Article 654 of the Penal Code, which reads as follows: 

"If any person shall establish a lottery cr dlspose of any estate, real or personal, by lottery he shall be fined not less 

than One Hundred ($100) Dollars normore than 

One Thousand ($1000) Dollars; or If any person shall sell., offer for sale or keep for 

sale any tickets or part tickets In any lottery, he shall be fined not less than Ten ($10) 

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

In City of Wink vs. Griffith Amusement Company, 

100 9. W. (2d) 695, (Tex. Sup. Ct.,), the court said: 

"The State Penal Code does not define a 

lottery, but our courts have Interpreted it 

ln accordance with public usage, to mean a 

scheme or plan which provides for a distrlbtlon of plzes by chance among those who have 

paid, or agreed to pay, a consideration for 

the right to participate therein. 28 Tex. 

Jur. p. 409, Sec. 2, and cases clted In the 

notes." 

This department has on several occasions passed 

on the question of what constitutes a lottery, holding In 
Hon. Fred T. Porter, page 3 (O-1819) 

(1) Opinion O-428 to Honorable Clint A. 

Barham, County Attorney, Erath County, .dated 

April 26, 1939, that a number system used by 

a theatre where each seat In the theatre Is 

numbered and a ticket Is selected or drawn 

from a number of tickets containing all the 

numbers on the seats and a money award or 

other thing of value is given to the person 

sitting in the seat that has a corresponding 

number with ths number drawn Is a "lottery" 

and the operation thereof Is a violation of 

Article 654 of the Penal Code. 

(2) Opinion O-967 to Honorable Tom Sea 

County Attorney, Potter County, dated June 1 1' , 

1939, that a scheme whereby, In substance, a 

theatre owner gives a prize to some patron of 

the theatre present after a drawing from which 

some patron's automoblle license number may be 

selected, under the facts presented, constitutes a violation of the lottery laws of this 

state. 

(3) Opinion O-1174 to Honorable Robert S. 

Cherry,.County Attorney, Basque County, dated 

August 10, 1939, that It is a violation of the 

law for the merchants of a given town or communlty to give their customers tickets with 

each purchase of merchandise from them, which 

tickets are good for chances upon merchandise 

or money given away at drawings, held periodlcallg In the said town or community. 

(4) Opinion O-1200 to Honorable Robert F. 

Peden, Jr., County Attorney, Matagorda County, 

dated August 12 1939, that the "Aces Quiz Night" 

scheme or plan (under the facts stated to this 

office) is a "lottery" and in violation of Article 654 of the Penal Code of this state. 

(5) Opinion O-1329 to Honorable Jack Borden, 

County Attorney, Parker County, dated September 

8, 1939, that a scheme whereby, In substance, a 

theatre buys the fingerprints of a citizen of 

the community by selectlon of one fingerprint 

from the flies of the theatre, Is a violation 

of the lottery laws of this state. 
Hon. Fred T. Porter, page 4 (O-1819) 

(6) OplnFon O-1336 to Honorable Paul T. 

Bolt, Count 

5 

Attorney, Travis County, dated 

September 1 , 1939, that a scheme whereby, 

In substance, a "suit club" gives credits In 

trade to winning contestants for completing 

a sentence, etc., constitutes a violation of 

the lottery laws of this state. 

(7) Opinion O-1789 to Honorable Andrew 

Patton, District Attorney, Dallas County, 

dated December 22, 1939, that a theatre program featuring the "Doctor I. Q." radio 

broadcast over a network Is not a violation 

of the lottery statutes of thls state. 

In the case of Griffith Amusement Company vs. 

Morgan, 90 9. W. (2d) 844, It was held that the elements 

essential to constitute a lottery are (1) a prize In 

money or thing of value, (2) distribution by chance and 

(3) payment, either directly or Indirectly, of as;;l;;;; 

consideration for the chance to win the prize. 

City of Wink vs. Griffith Amusement Company, supra; Featherstone vs. Independent Service Station Assoclatlon 10 

S. W. (2d) 124; Peak vs. Unlted States, 61 Fed. (2dj 973; 

Grant vs. The State, 112 S. W. 1068. In State vs. Randall, 

41Tex. 296, and Holman vs. The State, 47 S. W. 850, It 

was held that any scheme for the dlstrlbutlon of prizes by 

chance is a lottery. Accordingly, the "Bank Night" scheme 

(City of Wink vs. Griffith Amusement Company, supra), the 

"Buck Night" scheme (Robb and Rowley, et al vs The State, 

127 S. W. (2d) 221), and the "Noah's Ark" scheme (Smith vs. 

The State, 127 S. W. (2d) 297) have all been held to be 

lotterles. 

Xe believe that the essential elements of a lottery are presented by the facts set forth In your letter. 

The theatre provides a fund or prize of $1.00 for those 

patrons fortunate enough to have thelx questlons selected, 

and llkewlse, a prize is provided by the merchants for 

those patrons of the theatre correctly answerlng questlons. 

The prize element Is present. Moreover, a drawing Is made 

and the chance element occurs. Only the patrons whose 

stubs have been drawn,and only patrons whose questions 

have been drawn, are eligible to receive prlses. Moreover, 

patrons must be present In the theatre when their names 

are drawn or must have purchased tickets In order to partlclpate In the prizes by having their questions selected or 

by being called upon to answer a questlon that has been 

selected; and so, lndlrectlg, furnishes consideration for 
Ron. Fred T. Porter, page 5 (O-1819) 

the chance. See City of Wink vs. Griffith Amusement Compaw, supra. 

The theatre scheme set out In your letter Is 

similar to the scheme set forth In Oplnlon o-1200, dated 

August 12, 1939, which was held to constitute a lottery 

and for the reasons set forth In that opinion and under 

the authorltles set out in thls opinion, you are respectfully advised that It is the oplnlon of this department 

that a theatre operator oonductlng the scheme described 

In your letter would be 

prohibited by Article 65 $ 

uilty of operating a lottery as 

of the Penal Code of Texas, 1925. 

Yours very truly 

ATTORNEYGENERALOFTEXAS 

By /s/Walter R. Koch 

Walter R. Koch 

Assistant 

By /s/James D. Smullen 

James D. Smullen 

JDS:jm:mjs 

APPROVED JAN 27, 1940 

/s/ Gerald C. Mann 

ATTORNRYGFJVERAL OF TEXAS