HonorableFred T. Porter

CountyAttorney Kaufman County Kaufman, Texas

Dear Sir: Opinion Ro. O-1819

Re: Whether "Qu1z.s Night" ~,,~.~,of' Kaufman Theatre constitutesa lottery.

We have'forreply your letter of January 20, 1940, requestingthe opinion of this departmentas to whether or not the followingscheme constitutesa lot- ;zr;%as 1s made unlawfulby the Penal Code of this

. We quote from your letter:

"A party here in this County Is contemplating the operationof a !QulzzNight', as will be describedhere; 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 operatedas follows:

"Personswho attend will be charged $.25 for admlsslonand will be privilegedto 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 submittedby the customerswill be signed by the customerand 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 InHon. Fred T. Porter, page 2 (o-1819)

answering the question correctly,then he will be given a prize donatedby one of the merchantswho Is lnterestedIn the matter as an advertisingscheme. 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 Legislatureshall pass laws prohibiting the establishmentof lotteriesand gift enterprisesIn this state, as well as the sale of tickets in lotteries,gift enterprlsesor other evasions Involvingthe lotteryprincipal, In other states." establishedor existing,

Pursuantto such command the Legislature passed Article 654 of the Penal Code, which reads as follows:

"If any person shall establisha 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. GriffithAmusement 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 Interpretedit ln accordancewith 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 participatetherein. 28 Tex. Jur. p. 409, Sec. 2, and cases clted In the notes."
This departmenthas on several occasionspassed
on the question of what constitutes a lottery,holding InHon. Fred T. Porter,page 3 (O-1819)

(1) Opinion O-428 to Honorable Clint A. Barham, CountyAttorney,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 containingall 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 operationthereof Is a violation of Article 654 of the Penal Code.
(2) Opinion O-967 to HonorableTom Sea CountyAttorney, 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 presentafter a drawing from which
some patron'sautomobllelicensenumber may be selected,under the facts presented,constitutes a violation of the lottery laws of this state.
(3) Opinion O-1174 to HonorableRobert 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 customerstickets with each purchase of merchandisefrom 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 HonorableRobert F. Peden, Jr., CountyAttorney,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 fingerprintsof a citizen of the communityby selectlonof 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 contestantsfor completing
a sentence,etc., constitutesa violation of the lottery laws of this state.
(7) Opinion O-1789 to HonorableAndrew Patton,DistrictAttorney,Dallas County, dated December 22, 1939, that a theatre program featuringthe "DoctorI. Q." radio broadcast over a network Is not a violation of the lottery statutes of thls state.

In the case of GriffithAmusement Company vs. Morgan, 90 9. W. (2d) 844, It was held that the elements essentialto constitutea lotteryare (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. GriffithAmusement Company, supra;Featherstonevs. IndependentService StationAssoclatlon 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 dlstrlbutlonof prizes by chance is a lottery. Accordingly,the "BankNight" scheme (City of Wink vs. GriffithAmusementCompany, supra), the "BuckNight" scheme (Robb and Rowley, et al vs The State, 127 S. W. (2d) 221), and the "Noah'sArk" scheme (Smithvs. The State, 127 S. W. (2d) 297) have all been held to be lotterles.

Xe believe that the essential elements of a lottery are presentedby the facts set forth In your letter. The theatre providesa fund or prize of $1.00 for those patrons fortunateenough to have thelx questlons selected, and llkewlse,a prize is providedby the merchants for those patrons of the theatre correctlyanswerlngquestlons. 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, patronsmust be present In the theatre when their names are drawn or must have purchasedtickets 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 forRon. Fred T. Porter,page 5 (O-1819)

the chance. See City of Wink vs. GriffithAmusementCompaw, 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 constitutea lottery and for the reasons set forth In that opinion and under the authorltlesset out in thls opinion,you are respectfully advised that It is the oplnlon of this department that a theatre operator oonductlngthe scheme described In your letter would be prohibitedby Article 65 $uilty of operatinga lotteryas 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