T.HEA~ORNEY GENERAL 

OF TEXAS 

CaRAm c. wan 

ie 

P”“““” GIPIN=-= 

Honorable Holvey Villlemn 

Criminal District Attorney 

Waco, Taxes 

Deer Slrr 

Opinion Bo. O-2309 

Re: Whether or not prise scheme of 

theetre constitutes a lottery. 

Thin will eckooa&dge receipt of$hnr letter of April 30, 1940, 

requ&ting an opinion of-thir department ee to whether or not a prize 

a&em ,of e loeal~heatre, siriler to the,"Pot of Guld" radio program, 

!. conatltutar e lottery mch,se ia mede un%wfulby Article 654 of the 

penal CodB. The p~ia~dercr1bed~l.u your letter.,86 eolJ.owe~ 

‘~ ‘The local showo'propoee to have a wheelahich they rpln and 

it will etop -'a certain number which all1 Indicate a certain page In 

our local city directorJI, and they will again spin the wheel aad it wtll 

stop et a certain lw on said page, and the naae ep+earing on that line 

will receive e ,ceeh prim. The theeter~aill attempt to call the number 

and eleo will announce the name from a loud apeeker et their theater 

here In Yaco, eeid annouqcement to be heard on the down town city streets, 

end If the party receZving the phone cell ie~at home or hear6 the announcement over the loud speaker, he Is entitled to receive the prize. It la 

not neceeeery for thcrecelver of the prize to have purchaned a ticket 

at any of the theetere." 

~Sectiox~47 ef-Article III of the Conetitutlon of Texan ,madsa 

'Tha~Iag1nlatum~shal.l paea Lava prohibiting the eetebliahment 

of lotterle#'and gift entsrprlres in thlo State, as well ea the rale 

of tickets In lotterier,~gift enterprinee or other evaalone Involving 

the lottery principle, clltabliahed or existing, in other atetes.' 

Purnuent to much command, the Leglalsture peeeed ATticle 654 

of the~Pena1 Code,~whlch reada ae followaI 

;,:g ~:*If q-perron~ehall eetablleh:a~ lotteryo~~dlspime of any 

eetete;'real M pcr¨, bf lottery, he,rhs&l be finad aot.lelle than 

One Hnndrad ($lOO)~Dollarm'no~nore than One Thoumnd ($1,000) Dollare~ 

or if iny pereon #hell Bell, offer for eale or;keep for sale any ticket8 

or pert tickets in any lottery, he shall be fined not lean thau Ten ($10) 

Dollere nor more then Fifty ($50) Dollars." 

In Cole vs. State (Ct. of Cr. App. 1937), 112 6. W. (26) 725, 

the concurring opinion of Judge Eawkina etatee that8 

: 
Honorable Holvey Williams, page 2 (O-2309) 

“There is not now, nor ever has been, an attempt in this state 

to define by statute what constitute0 e lottery. The term is defined 

by the statutes of only e few of the states. Corpus Jurie, vol. 38, 

p. 288, note 10, llatr only four, but reya ‘that ouch deflnitionr zeldom 

vary in rubatanco from tho.ee eatebllrhed by the courta. 1 Ezving no deflnltlon In our Itatute, we murt reaort to the meaning given the term by 

popular usage an determined by the varlouz courtr. When that lr done, 

it lr cleer that three thlngr muat concur to errtablllh a thing 81 a lotteryr (a) A prize or prizes; (2) the evard or diatrlbutlon of the prize 

or prizee by chance; (c) the payment either directly or indirectly by 

the perticipantr of e coneideretlon for the right or privilege of perticlpeting. Texea Jur., vol. 28, p. 409, Q 2, deduces from our own ceaea 

tQe rule eteted, end it appears that in every case from our own court 

w&are a scheme has been denounced 88 a lottery that the three elements 

mentioned are ahown by the fecte to have been present. See Rendle v. 

State, 42 Tex. 580; Grant v. State, 54 Tex. Cr. R. 403, ll2 S. W. 1068, 

21 L. R. A., Iy. S., 876, 130 Am. St. Rep. 897, 16 Ann. Cee. 8441 Prendergest YE. State, 41Tex. Cr. R. 358, 57 S. Y. 850; Holomau v. State, 2 

Tex. App. 610, 28 A~I; Rep. 439, and other Texee ceeea cited in Texes 

Jur., zupre . The 8ame r)lle demanding the presence of the three elemente 

named will be found ateted in 17 Ruling Case Law, p. 1222, and 38 Corpue 

Jurie, p. 286, with innmreble supporting ceaea cited under the text 

in each of maid rolumen." 

Az atated in City of Wink VII. Qriffith Amueement Cornpang, (Tex. 

sup. ct. lg36), loo s. w. (26) 695: 

“An analysis of this provision chows that the framers of the \ 

Conatltution condemned in emphatic terma the eetabllzhment and operation 

in this state of (a) ‘lotteries,’ (b) ‘gift enterprises,’ and (c) ‘other 

evasions involving the lottery principle.’ Lotteries only have been 

urohlbited br the Penal Code in accordance with the constitutional man- 

&e. tGiftVenterprisesf and ‘other evasions involving the lottery principle* nevertheleaa remain and stand condemned by the Con&it&ion of 

the state 88 being against public policy. It Is hardly neceesery to 

argue that the ‘Bank Hight’ plan of the defendant in error, if not e 

lottery, 16 et the very leant a ‘gift enterpriee involving the lottery 

principle, 1 axd obviously an evasion of the lottery lawa of the state. 

That ‘gift enterprleez’ ere a form of lottery eveeion ia 80 well known 

that courte take judicial knowledge of the plan. 38 C. J. p. 296, § 

14~ Stete v. Bader, 2 4 Ohio H. P. (R.S.) 186~. Moreover, ‘gift enterprl6es’ were well known in this state when the Constitution of the atete 

was formulated in 1875 and adopted in 1876. State VI. Rankle, 41Tex. 

292; Randle VII. Stete, 42 Tex. 580. In the argument in favor of the 

appellant in Randle v. State, 42 Tex. 580, q upre, distinguished counsel 

for the appellant in that case argued that ‘gift enterprises’ were so 

well known ‘en almost to be judicially proven.‘” 
Honorable Holvey Williams, page 3 (O-2309) 

It le clear rrw ypur letter that et leant txo of'the element8 

emsentlal to conntltute a lottery are prone&. A prire lrr 

the recipient of tha prize 1s Gets-8 by chance. letheE?:lZd 

ment, "the payment either directly or indirectly by the part~clpantr of 

a conrideratlon for the right or privilege of partlclpeting,* alro preb 

entt We bcllere that thir element lr minrlng. 

Ho payment aither directly or indirectly Is deaan&ed of the 

recipient by the donor of the prize) nor, from the fact! etated, do we 

mee any material lndueewnt to patronize the theetre. Each mubrcrlber 

l?z the telephone directory haa en equal opportunity to win the prlre, 

either br re~lnlng at him telephone, frequenting thone placea on the 

street6 of the city vbere he may hear the armouncement of~the &&ulng 

telephone number, or, if he derlres, attending the theatre. The element 

of caneideretlon 16 not prerent. 

Ye do not mean to be underrrtood aa holding that the rche~ 

dercrlbed ln your letter does not fall within the purview of Section 

47 of Article III of the Conetltutlon. On the contrary, we believe that 

the scheme ia literally a "gift enterprlee" or "evr+an lnvolrlng the 

lottery principle" of the type which is condemued by the Conetltutlon. 

Being c-d by the Conetltutlon, it is egalnmt the public policy 

of the State. If carried out by e corporation, its practical operation 

may be found to constitute an abuse of the corporate franchine. city 

of Wink ve. Griffith Amueement Company, supre. In the Penal Code, however, the Iagialature hen seen fit to carry out the conrtitutionalmandate only to the extent of prohibiting lotteries, end we hold that this 

schew doe8 not constitute a lottery. 

Verytruly youris 

AppRonm MY 23, 1940 

/a/ Gerald C. lknn 

ATTORlIEY GEHERALOFTEXAS 

A!rroFinEY GBNERAL OF TEXAS 

By /e/ Walter R. Koch 

Walter R. Koch 

Aaoi~tant 

JDS/O+l 

By /a/ S8mee.D. +&lea 

J-e D. Suu.llen 

APPROVED 

OPINION 

CoMHITTE& 

BY /I/ BWB . 

CHAIRMAW