-E ATTOICATEY GENERMC. 

OIF TEXAS.: 

AUS+IN~ TEXAS~ 

'. ,, 

April 13, 1948 .' 

Hoti. Lloyd King Opinion No. V-544. 

District Attorney 

47th ~Judicial District Re: The legality of the 

Amarillo, Texas contest type theater 

attendance stimulator 

plan known as "Bank 

of Knowledge". 

De& Sirs:' . 

Your letter of January 12 encloses data descriptive of a plan t.o distribute priaes,by question and 

answer contests, The plan is denominated "Bank of Knowledge". The general scheme of the plan is outlined and 

sample questions and answers used in a motion picture 

, theater at Childress, Texas, are enclosed. You state: 

"The operation of the plan is selfevident from the attached instruments and 

exhibits, and appears to be a question 

and 'answer program similar to the Dr. I.Q. 

program except that the entire audience 

participates and there is only one award 

given rather' than .several awards. There 

is no selection by chance or by lot or by 

any type of device as to who may participate in answering the five questions. Anyone in the theater may win the award." 

Your particular question is: 

"Does-the ope,ration of the'.Bank of 

Knovjledge constitute,a lottery under the 

laws of the State of Texas?" 

The plan purports to operate essentially as 

follows: 

A substantial cash prize is posted by the theater and all in attendance at the theater may participate 

in the contest to win the prize'. If no prize winner is 

selected, the prize for the subsequent contest is increased. Regional and~national contests are contemplated 
. I 

398 

Hon. Lloyd King, Page 2, v-544. 

but a description of them is not contained in your lettel 

or the data submitted. At the local contest, up to five 

questions are asked from the stage. Following each question, a number of answers are read from the stage and eat 

answer is given a letter designation. The contestants 

hold a card upon which appears a number of letters corre: 

ponding to the various answers to each question. Bach cc 

testant is to punch the letter which he bdieves corresponds to the correct answer to each question. After the 

contestants have punched answers to all five questions, 

the correct answer to the first question is announced, al 

those answering the first question correctly are to stanc 

the remainder to remain seated. The answer to the seconc 

question is then announced and those missing it are to bc 

seated. This process is continued until all are seated 

after the announcement of the answer of the fifth questic 

or if one remains standing he wins. If more than one is 

standing, some additional questions are asked and the prc 

cess of elimination continues until a winner is. chosen. 

If, however, no one answers the first five questions correctly, no winner for that contest is chosen. 13 is on11 

in the event that more than one complete the first five 

questions correctly that the process of elimination is 

continued until a single winner is chosen. 

The first five questions used in the performance ref.erred to are as follows: 

QUESTION NUMBER ONE: Designate then President of the 

United States that organized the."Rough Riders". Was 

it: (A, Stonewall Jackson) L (B John Quincy Adams) - 

(C, Theodore Roosevelt) - (D,~Wiiliam Howard Taft) - 

(E, Woodrow Wilson) - (F, Ulysses S. Grant)? 

QUESTION NUMBER TWO: In what year did Babe Ruth hit 

3) 

home runs? Was it: (A, 1921) - (B 

- (D, 1927) - (E, 1929) or @, 1931b 

1923).- (c, 

QUESTION NUMBER THREE: 'A method of what is called the 

bertl -1lon system? Is it: (A, shorthand) - (B,,criminal identification) - (Ci transportation ) - (D, blind 

reading) '- (E,~ horse racing ) or (F; yachting)? 

QUESTION NUMBER FOUR: About how many persons had crossec 

the ocean by air before,Lindberg,made his solo fli ht? 

Was it: (A, none) - (B, 4) - (C, 24) - (D, 42) - 7 E,64) 

ox- (F, 104)? 
399 ,; 

Hon. Lloyd King, Page 3, V-544. 

QUESTION; NUMBER FIVE: Th,e'lstter R.with:a~, line drawn 

through the tail,at the~top of a, doctorls~.pres.cr$pt$en 

"{blank means: 

tion) 

(A, prepare) - .(B, mix well),:-;.l(!:,::atten- 

- (D, I prescribe) - (E;keep cool) or .(F,~recipe)? 

Questions for elimination in.the; event of a 

tie; t;';at is; in the event more than one. personan~swers 

.a11 five of~the,foregoing questions correctly, are: 

: 

Who was bid' Hickory? Answer.., -$;;kzn.. 

‘#ho ~invented,the.steam boat? * 

-Nhat.isswiss~ chard: :., 1, : A'vegeiable. 

Article'~ 65.4 'of the.Penal Codes prohibits. the 

establ~i&m+nt of a'loitery. The statute'contains no 

:.defin&ion of a lottery but + this connection 2g Tex, 

J@fh.409; 410 contains the foll,owi,ng statement: 

"The term lottery has no. technical 

. ..e&&fication in the law, and s,ince 'our 

. _ statute does'~not prov'ide .a.definition, 

..its meaning must be~determined from popu- 

.le,r usage. According to that test a lottery isa. scheme for the distribution of 

prize,s by lot .or chance among those who 

,...:' ,ha,ve.paid or,.agreed to pay a consideration 

for the,right to participate therein,~.or 

:the distribution itself." 

-In,order to,constitute a lottery it is ..generally considered that three elements must'be resent. 

They,are:, .(l) consideration;~ (2) prize; Andy P 3) chance. 

34 Am. Jur. 647,:648., The main question involved here 

is whether or not the element of chance'exists in such 

a degree as to make the plan illegal, it being conceded 

that consideration land prize are, present.' 

Two former opinions of this office.are pertinent to 'your inquiry?, both'of ,tiich ,are attached hereto 

for reference. Opinion No. V-238 involved a plan known 

as "bonanza" It was there considered that if the ele-. 

ment of .chanie predominated over,the element of skill, 

the other elements being present, the scheme was a lottery. "Bonanzafl involved the distribution of tickets 

on the.,back.cof each of which was printed a question. 

Eac~h ticket was numbered. A d,rawing was conducted and 

those holding lucky numbers.were offered an opportunity 

to answer t~he, question onthe back of their ticket. If 

the question ,was answered, correctly, the lucky,person 
Hon. Lloyd King, Page 4, V-544. 

mightthen answer one or more of ten additional questions, and for each correct answer a prize was given. 

It was there held that chance predominated over skill 

and.the plan was held to be illegal. 

In Opinion No. O-1789, this department passed 

upon the legality of a theater program known as "Dr. 

I. Q.". The "Dr. I. Q." ~ogram was conducted by selecting from the audience a number of persons, each of whom 

was asked a series of questions similar, to those above 

set out, and prizes were offered to each person individually dependent upon his correct answers to such questions. In the "Dr. I. Q.v program, there was no contest 

between the various members of the audience. There was 

nothing to indicate that participants were selected by 

a drawing. On the authority of Boatwright v. State,118 

Tex. Cr. R. 381, 38 S. W. (2d) 87;hereafter discussed; 

McRae v. State, 46 Tkx. Cr. R. 489, 81 S. W. 741; and 

Hoff V. Daily Graphic, 230 N.Y.S. 360, 103 A.L.R. 870, 

dealing with the question of skill v.,chance, it was 

determined that the "Dr. I. Q." program did not violate 

the lottery81aws of this State. 

2 In Boatwright v:State, supra, the Appellant 

was convicted of operating a lottery. He had exhibited 

a punchboard from which might be punched a checker problem, the solution of which would require skill in checker playing. The exhibitor held the key to the better 

solutions and customers were allowed to take the problems 

home and work them out, presenting his solution to the 

exhibitor of the board who, if the solution was the best, 

awarded a prize. -The exhibitormight require under that 

schenie.not only the best solutioti~~but the quickest and 

the neatest. The Court in that case said: 

RIt is observed that the success of 

t~he player in the game under consideration 

depends upon practice, experience or skill. 

Other than the ordinary chance or contingency which isinvolved in practically every 

human endeavor, the element of chance is 

not present. The priae is drawn as a reward for the skill of the player,' and not 

by chance. The predominant element in the 

game"is one of skill. There is no more resemblance to a' lottery in the game than 

there is in the operation of the knife rack 

described~in McRae v. State, 46 Tex. Cr. R. 

489,. 81 S. W. 741.~ In' that case, in holding 
. . 

Hon. Lloyd King, Page 5, V-5&. ," ," 

GcThe'evidence .discloses that it was an 

ordinary knife rack, whichconsisted 'of a'.sloping:board and arranged so that rings could be 

. ..thro~ and lodged upon.the ,kriives; and when the 

player +@s fortunate enough to~~throw one.of 

,:.these..r&ngs, around .a knife, or catch its on a 

. ~. .~.kni.fe;~:'the ,knife becamehis ,property. . ,.'... .A 

lottery is commonly understood as. a, ,"scheme for 

the.distribution of prfzes by lot or chance, especially a.gaming scheme in which,one or more 

. ..tickets' bearing particular numbersdraw prizes " 

, '~ and.the rest.of.the tickets are blank."...There ,' 

,. were notickets distributed'under the scheme,,, 

;-...as.:shown in'the testimony'but rings were sold, 

.:'. andthethrower of the.rings took chances as tc 

,/‘:'~whethe'r‘he could incloseoae of the knives by 

.,I.. one..pf.the rings..& thrown, and.the..succesa' of', 

.;:.,the pitche'rdepended upon hfs .practije, ~experience, or skill. :Je do not believe-it was-la 

lottery.'", 

.:;.~,Y .I : ~. 

; :..:. ,,::,. :The.Court then cites'a number of caseswhich 

-:had passed~ upon, the.~identicalchecker~ game punchboard. 

,.~The~:Court.then quotes from Johnson V. McDonald?-132 Ore. 

622:..-.287. Pat,.: 220, 221; as- follows: 

,~ US.' .~ .~, 

i :.;'~~Itwill be seen from the directionsthat 

the prize is'drawn, not by chance, 'but as a'red' 

ward. fcr the .skill.of the'person claiming the .' 

prize, If there is any’c+demhnt of ,chance at 

all about the device,'it is in the.drawing'of 

the problem: Any woblem drawn requires the 

solutionof th.e game'of'checkers'pre8ented by 

that particular problem.,' From the directions. 

given with the Advertoshare. problem checker&, 

boards:we~:.learn that the problem is the campletion-of..a .game .of checkers thathas beenpartiallyjplayed. The device was,invented by a famous checker player. So far as it ishumanly 

possible,'the seve~ral.problems are of equal difficulty. No distr~i~bution of prizes is made by 

chance'or lot.~ Gambling'does. nothave'any place 

in the:game as itis intended to be played~. The 

rizesoffered are trivial, and'do not offer any 

.$nducement for one to.purchase an oppartunlty to 

play the game. 

the, game.not within the .inhibition ~of the,,.statute .denouncing lotteriesi Judge Davidsonsaid:. 

.~ 
Hon. Lloyd King, Page 6,. V-544. 

"There is no more resemblance to a lot.- 

tery in the scheme than there is in a game. 

of billiards or of cards where such games 

are played in a public place and charges are 

made for the privilege of using the billiard 

tables or card tables. The predominantelement in the game is one of skill. 

would not appeal to my one who did =-y% not1 e 

to play checkers. There is-no apparent .llke- 

‘Iihood at all that the game, if played as 

designed. would cultivate a spirit of gambiw (Emphasis supplied) 

The conviction was reversed because the game was held 

to be one of skill and not of chance. 

In Hoff v. Daily Graphic, 230 N.Y.S.. 360, refferredto above, the contest involved the selection of 

play titles, appropriate to drawings published $n the news 

papers and it was held that though,the solution involved 

chance to some extent, it was pretiminately'a contest of 

judgment and taste. 

In Rouse v. Sisson, 199 So. 777, 132 A. L. R. 

998, by the Supreme Court of Mississippi.ln 1941, the 

Court considered a mechanical device which flashed a question upon a screen upon the deposit of a nickel into the 

machine. The machine then exhibited a number of alternate questions and the player was given a~number;of see-. 

onds in which to punch a key corresponding to what he 

thought was the correct answer. A prise~was awarded if 

he punched the correct. key. Such a machine was held to 

be a game of skill rather than chance and was held to be 

legal. 

Attempts'to exhaustively examine the nature of 

"chance".as .contemplated by the laws of this country supressing lotteries could easily lead us into, an obscure 

discussion throwing more shadow than light upon.the problem. The better approach is to ~look at the scheme as a 

whole;:its purpose and the natural tendencies of those who 

conduct it and participate therein. 

We quote from 34 Am. Juris., page 656: 

"It has been said that no sooner is the 

term *lottery'.defined by a court, than ingenuity evolves some scheme within the mischief 

discussed;although not quite within.the letter of the definition given; but an examination of the many cases on the subject will show 
Hon. 

,,. ! 

,' 

,.-* 

>,. ..i 

Lloyd King, Page 7$ V-544. .~: 

that it his very difficult,.if not im 

sible, for the most ingenious and-su f?- tie..~.-;' "' 

minds to, devise.. 'any scheme o'r plan,, short .: 

of a~ ,gratuitoua, distri~bution of prope.rty;~ '. .~ 

which hasnot.bean.held by the'courts of' 

this country to, be in vio.lation. o.fthe: lotr~~ 

tery laws in .force in the,various:states ofthe: Uuion.. ;Ihe court will inquire,,not .in-. 

tb'th&name, but into the..ganu?$ however skilfully'disg;u'ised, in order to ascertain if 

it' is'prohibited,,or if it has' the ~eiement~ 

of'chinde..T1- :(Emphasis supplied) 

:From 3~4: Am.. .Juris! 9 page 647; wee quote:. 

.~ 

~. Where,the term ~(lotteryl is. not, de- 

'finedby. statute.directed against.-itjit 

.hae,.beenstated that. a definition which ,ineludes as an elementthe evil.which the- statute was. intend.ed to prevent must be adopted.." 

-@aphasis supplied) :' ; .__ '_I_ .". ., 

I 

From the leading c&eof"State v.~ Glob&Democrat 

Publishing1 Company,, 341: MO.., 862, 110, 3.. W. ,(2d) 705, 113 

A&R,.?: 1104; ye quote: 

._ ,= _,:.‘I : .I I, 

/ ;’ ~‘-,‘. ,:.Y "It ,is impossible- to harmonize ,a11 

.,. the~cases. But we draw~.the~.conclusion ~~ 

.,..from them thatwhere:a contest is multiple:.,or .serial,.,and:requires the.solution 

of:a number of problems to win the, priie; : 

: the..fact.that skill alone will'bring con-. 

testsnts to a: ;correct~ solution~'ofa great- 

,er part of the'problems doesnot make.tlie 

~cont8st.eny~th8 less a lottery ifchance' 

enters. into the solution of'another.lesser.~ '~ 

part of the'problems, and thereby~.proxim8te-~ 

: ~.ly -influences the ~final result. : Inother 

.words,,the rule t&t chance,mustbe the .dond: ,~ 

~n&.factor is,Yto~,be.taken in a qualitative 

ore causative sense rather than a quantitative 

sense. This was directly decided in Co1e.s 

v::Odhams Pre,ss,,Ltd.:, supra, when it ~w8.s 

held the question was not.to be determined 

.onthe basis of.the'mere proportions of skill 

land chance.entering.,in th,e contestas 'a whole. 

. . 

_ '! .'.' o 'O,,In.the‘instant case,it stands. : 

c.oncedei that at the beginning of ,the 'Famous. Names' contest the cartoons were comparatively simple and the list of suggested titles 
;r 

2 40~,,, . Lloyd King, Page 8, v-544. 

was short. This made the conte~st 

to entrants. But towards the end 

toons became more 'Subtle' and as 

180 titles had to be considered.' 

inviting 

the carmany as 

It was a 

weeding out process, undoubtedly; and, if 

chance inhered in the solution of these lat: 

ter cartoons, though only a few of them,and 

eliminated a large number of contestants, 

then it must be said, the result was influenced'by chance. 

"Further, we are convinced the question 

whether the element of.chance was present 

must be viewed from the standpoint of the 

nearly 7O;OOO persons who entered the contest in response to the advertising thereof; 

and that itis not to be measured bye any absol.ute or technicsl standards.' As was said 

..in Coles v.~Odhams Press, Ltd., supra, 'the 

competitor is the person to be considered'.~ 

In the instant case the public was informed 

that any one might win; that no special skill, 

training or education was required; and that 

an opportunity was offered to gainsome 'easy 

money'. It is true reference to the possibility ofchildren's winning was omitted from the 

later advertising. but aside from that hope 

was held out to <he general public.. That-being true, whether chance or skill was the determining factor in the contest must depend 

upon the capacity of the general public--not 

experts--to solve the problems presented.- 

nTh8.respondent's thedry is that the interpretation of rebus puzeles.is a science; 

and that, since they can be solved by the application of these scientific principles, the 

elementof chance is absent. 'Some of the decisions lend support to that view, such as Hudelson v:~State, supra,~Stevens v:Times-Star Co., 

supra, and Waite v. Press Publishing Asstn., 

supra. All of these cases conceded an expert 

might more nearly than a~nonexpert approach a 

solution of the problems they were considering, 

and then swept away that concession by saying 

that nevertheless there remained unfathomable 

elements in the problem which nobody could 

solve. This might be taken to mean that, if 
. - 

Hon. Lloyd King, Page 9, ,V-544. : '~ 

. . 

; 

contest ~problems' can be solved-at.&11 chance 

is eliminated. And the fadvertosharei check.- 

er game‘cases seem-to partake of 'that theory, 

though:-there,is possibly~an allowable“di$tincY~ 

tion;there, :. 

.~. '-ykut~ 'such is .not thb trtie general rule.. 

As.was -said,in,PeopIi ex.rel; El'lison v. Lavin, 

supra,:if a"contest W8r.e solaly b.etween expe,rts, 

possibly elements affecting'the result which no 

one could fores'ee might.:&e held dependent upon 

judgmenV,'but.not so whenthe contest' is unres-~ 

trictedi' '&at 'is -a ,matter .of.chance for one' 

man'may"not' be -for another: And as Mr. Justice 

Holmes said in Dillinghan v.,'McL&ghlin, 264 

U:X:370,~ -373, 44 S:Ct.. 362;363, 68.L. Ed. 

742, .r,what Amman does'not- knoti,,apd cannotfind 

out ischance as.'to~ him,~ arid is recogn$&i as 

.chance'.by, the lati.~,l- +~' Obviously,,,if some'ab-'~ 

stl'~ce.pr~bl,em~co~~arable'~'~ttd'~t~he.~~~~st~in the-, 

ory weresubmitted to the general'.public in ,a 

,.prize.,conte.st on 'the r'epresentation that 'no 

spe~cialtraining or education would be requir- 

,edto 'solve~.it;,"the': contention 'could not 'be 

made; after contestants 'had been 'induced to 

part ~Gith:'their entrance monejr,, that-:~the element'of Wiance~'was.'absent 'bectiuse'there were 

a ,f,ey persons ~,in the tirld-tiho pdssessed.the 

.le~r~~~g,necessa~'to unde~rstand, it,. .*~. (Emphasis~ supplied]. '. ~. 1.;'. 

.From,the authorities cited~, it is ahparent 

that the manner in which the questions are presented 

and the'nature of such questions willcontrol as fact 

issues ineach. contest as to'whkther the contest or 

any controlling 'poH5o.nof .it' is. redu'ced t'o 'mere guess 

or chance. '~ It is impossible for us to say that in all 

conte.stsunder the: Vank ,of"Kno'wledge" plan'inere chance 

and.guesswill~.be dominantand therefore illegal, or 

that:.skill'and knowledge will be dominant'sndtherefore 

legal.,.,:. _': ','_ .-, " 

. .- .~; ,-, 

* :The par%icular questions submitted with your 

repuest:as:the ones to:be used in the first performance 

appea~r to.':present acontest based primarilyupon skill 

and knotiledge rather than upon chance. If all the contests or performances' are based upon similar questions 

and are..conducted in a manner so that skill an'd knowledge control rather than mere guesses, these contests 

or performances would be lawful. 
406 

Hon. Lloyd King, Page 10, F-544. 

On the other hand, it is entirely possible 

for "Dank of Knowledge" questions to be so worded that 

one or more of them rest wholly upon pure guesses in 

so far as practically all of the' participants are concerned. In such case the scheme may fall within the 

class condemned by such cases as Stevens v. Times-Star 

co., 73 N. E. 1058, wherein the contest involved an 

estimate of the number of votes to be cast for Secretary of State of Ohio in a particular election; People 

v; Lavin, '71 N. E. 753, wherein the contest involved 

an estimate of the amount ,of tax to be paid the United 

States Government upon cigars- or White v. Press Publishing Association, 155 F. 5$, another contest involving an estimate of the votes to be cast in a presidentvial election. 

The letter opinion on this subject by Frank 

J. Delaney, Solicitor of the Post Office Department, 

February 6, 1948, recognizes. that the circumstances of 

each separate contest or performance are controlling. 

After outlining~the procedure to be followed in the 

first performance, the Solicitor says: 

~*When conducted in.accordance with 

the above dutline, and employing *8Stions of such a nature as not to require 

the contestants to guess at their car'- 

rect answers, matter relating to this 

plan would appear to be acceptable for 

mailing insofar as Section 601, Post&l 

Laws and Regulations of 1940, is concerned.". 

Obviously we cannot anticipate the type of 

questions which wili be used ,in subsequent programs. 

Therefore, we cannot categorically stat8 that the "Dank 

of Knowledge" plan is as a matter of law a lottery or 

not a lottery. The question of whether chance predominates over skill cannot be determined abstractly, but 

depends on the circumstances of each separate contest 

operated under the plan. The plan.can be operated so 

as not to violate the law. Likewise, it can be operated in such a manner as to be unlawful. Each contest 

thereunder will present a separate fact situation which 

cannot be prejudged as a matterof law. 

SUMMARY 

Whether the theater'question contest 

plan knckvn as "Bank of ,Knowledge" is.a lottery and violates Art. 654, V, P. C.,, is 
. - 

Hon. Lloyd King, Page 11, V-544: 

a question to be determined upon the facts 

and ,circumstances of each contest and cannot be.determined abstractly as a matter oft 

law.. If conduct of the contest and the answers to a given set of questions are dependent primarily upon skill and knowledge rather 

than upon mere chance, the contest 1,s lawful. 

On the other hand, if any controlling portion 

oft a contest calls for'and is' dependent upon' 

pure guesses or chance, it is a lottery and 

is therefore unlawful. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

Assistant