### GENERMC. -E ATTOICATEY

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 enclosesdata 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 'answerprogram 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 selectionby 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 essentiallyas 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 prizewinner 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 letterdesignation. 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 letterwhich he bdieves corresponds to the correctanswer to each question. After the contestantshave punched answers to all five questions, the correctanswer 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 announcedand those missing it are to bc seated. This process is continueduntil all are seated after the announcementof the answer of the fifth questic
or if one remains standinghe wins. If more than one is standing,some additional questionsare asked and the prc cess of elimination continuesuntil 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 correctlythat the process of elimination is continued until a singlewinner is chosen.

The first five questionsused in the performance ref.erred

to are as follows:
QUESTION NUMBER ONE: DesignatethenPresident of the United States that organizedthe."Rough Riders". Was it: (A, StonewallJackson) L (B John Quincy Adams) - (C, Theodore Roosevelt) - (D,~WiiliamHoward 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 @, 1931b1923).- (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,madehis solo fli ht? Was it: 

### (A,none)- (B,4) - (C,24) - (D,42) - 7E,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 "{blankmeans: 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 .a11five of~the,foregoingquestions correctly,are: :Who was bid'Hickory? Answer.., - $;;kzn.. ‘#ho ~invented,the.steam boat? * -Nhat.isswiss~ chard: :., 1, :A'vegeiable.

Article'~

65.4 'ofthe.Penal Codes prohibits. the establ~i&m+nt of a'loitery. The statute'containsno :.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 .orchance among those who ,...:' ,ha,ve.paid

or,.agreed

to pay a consideration for the,rightto participate therein,~.or :the distribution itself."
-In,orderto,constitute a lottery it is ..generally considered that three elementsmust'be resent. They,are:, .(l) consideration;~(2) prize; AndyP3) 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 considerationlandprize are, present.'

Two former opinions of this office.are pertinent to 'yourinquiry?, both'of ,tiich,areattached hereto for reference. Opinion No. V-238 involved a plan known
as "bonanza" It was there considered that if the ele-. ment of .chaniepredominated 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 whichwas 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 ,wasanswered, correctly, the lucky,personHon. 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 prizeswere 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 variousmembers of the audience. There was nothing to indicatethat participantswere selectedby
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 Boatwrightv: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 whichwould require skill in checker playing. The exhibitorheld the key to the better solutions and customerswere allowed to take the problems home and work them out, presentinghis solution to the exhibitor of the board who, if the solutionwas the best, awarded a prize. -Theexhibitormight requireunder 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~heplayer 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~inMcRae 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.disclosesthat it was an ordinary knife rack, whichconsisted 'ofa'.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.aknife, or catch itson a

. ~. .~.kni.fe;~:'the

,knifebecamehis ,property.

.,.'... .A lottery is commonlyunderstood as. a,,"scheme

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

. ..tickets'

bearing particularnumbersdraw prizes "

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

,. were notickets distributed'underthe 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'rdependedupon hfs .practije,~experience, or skill. :Je do not believe-itwas-la lottery.'", .:;.~,Y .I :~. ; :..:. ,,::,. :The.Courtthen cites'a number of caseswhich -:hadpassed~

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, 'butas a'red' ward.fcr the .skill.ofthe'person claiming the .' prize, If there is any’c+demhnt of ,chanceat all about the device,'it is in the.drawing'of the problem: Any woblem drawn requires the solutionof th.egame'of'checkers'pre8entedby that particular problem.,' From the directions. given with the Advertoshare. problem checker&, boards:we~:.learn

that the problem is the campletion-of..a.game

.ofcheckers 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 .$nducementfor one to.purchase an oppartunlty to play the game. the,game.not within the .inhibition ~ofthe,,.statute .denouncinglotteriesiJudge Davidsonsaid:.

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

"There is no more resemblanceto a lot.- tery in the scheme than there is in a game. of billiards or of cardswhere 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 not 1 e =-y% to play checkers. There is-no apparent .llke- ‘Iihood at all that the game, if played as designed.would cultivatea spirit of gambiw (Emphasissupplied)

The convictionwas reversedbecause the game was held to be one of skilland 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'acontest 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 considereda mechanical device which flashed a question upon a screenupon the deposit of a nickel into the machine. The machine then exhibited a number of alternate questionsand the playerwas given a~number;of see-. onds in which to punch a key correspondingto 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 exhaustivelyexamine the nature of "chance".as .contemplated by the laws of this country supressing lotteries could easily lead us into, an obscure discussion throwingmore shadow than light upon.the problem. The better approach is to ~lookat 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'.definedby a court, than ingenuity evolves some schemewithin the mischief discussed;although not quite within.the letter of the definition given; but an examination of the many cases on the subjectwill showHon.

,,. !
,' ,.-* >,. ..iLloyd King, Page 7$ V-544. .~:

that it hisvery difficult,.ifnot im sible, for the most ingeniousand-su tie..~.-;' f?- "' mindsto,devise..

'anyscheme 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 .forcein 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-

:(Emphasissupplied)

:From3~4:Am...Juris! 9page 647; weequote:.

.~

~. Where,the term ~(lotteryl is. not, de- 'finedby.statute.directedagainst.-itjit .hae,.beenstatedthat.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 Publishing1Company,, 341: MO..,

862, 110,3..

W. ,(2d)705, 113 A&R,.?:1104; ye quote:

._ ,= _,:.‘I : .I I,

/ ;’
~‘-,‘

. ,:.Y

"It ,isimpossible- 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.thatskill alone will'bring con-. testsnts to a:;correct~ solution~'ofa great- ,erpart of the'problems doesnot make.tlie ~cont8st.eny~th8less a lottery ifchance' enters.

into the solution of'another.lesser.~ '~ part of the'problems, and thereby~.proxim8te-~ : ~.ly

-influencesthe ~finalresult. :Inother .words,,therule t&t chance,mustbe the .dond:,~ ~n&.factor is,Yto~,be.taken in a qualitative
orecausative 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'mereproportions of skill landchance.entering.,in th,econtestas 'awhole.

..

_ '! .'.' 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 240~,,,

. Lloyd King, Page 8, v-544.

was short. This made the conte~st to entrants. But towards the end toons becamemore 'Subtle'and as 180 titles had to be considered.' inviting the carmany as It was a and, if weeding out process, undoubtedly; 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 personswho 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 ..inColes 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 educationwas required; and that
an opportunitywas 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'sthedry is that the interpretation of rebus puzeles.is a science; and that, sincethey can be solved by the application of these scientificprinciples, the elementof chance is absent. 'Someof the decisions lend support to that view, such as Hudelson v:~State, supra,~Stevensv: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 neverthelessthere remained unfathomable elements in the problemwhich 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 fadvertoshareicheck.-
er game‘cases seem-to partake of 'thattheory, though:-there,is

possibly~an allowable“di$tincY~ tion;there, :.

.~. '-ykut~ 'suchis .notthb trtiegeneral rule.. As.was -said,in,PeopIiex.rel; El'lison v. Lavin, supra,:if a"contest W8r.esolalyb.etween expe,rts, possibly elements affecting'theresult 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.chancefor one' man'may"not'

be -foranother: 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,~ aridis 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'.publicin ,a ,.prize.,conte.st

on 'ther'epresentation that 'no spe~cialtrainingor education would be requir- ,edto 'solve~.it;,"the': contention 'could

not 'be made; after contestants 'had been 'inducedto part ~Gith:'their

entrancemonejr,,

that-:~the

element'of Wiance~'was.'absent 'bectiuse'there

were a ,f,ey persons~,in

the tirld-tiho

pdssessed.the .le~r~~~g,necessa~'tounde~rstand, it,. .*~.(Emphasis~

supplied]. '.

~. 1.;'.
.From,theauthorities cited~, it is ahparent that the manner in which the questions are presented and the'nature of such questionswillcontrol as fact issues ineach. contest as to'whkther the contest or any controlling 'poH5o.nof .it' is. redu'ced

t'o'mereguess or chance. '~

It is impossible for us to say that in all conte.stsunderthe:Vank ,of"Kno'wledge" plan'inere

chance and.guesswill~.bedominantand therefore illegal, or that:.skill'and

knowledgewill be dominant'sndtherefore legal.,.,:.

_': ','_

.-, "

. .- .~; ,-, * :The par%icular questions submittedwith your repuest:as:the ones to:be used in the first performance appea~r to.':present

a contest 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'dknowledge control rather than mere guesses, these contests or performanceswould be lawful.

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

On the other hand, it is entirely possible for "Dank of Knowledge" questions tobe so worded that one or more of them rest wholly upon pure guesses in
so far as practicallyall of the'participantsare concerned. In such case the scheme may fallwithin the class condemnedby 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 ,oftax to be paid the United States Governmentupon cigars- or White v. Press Publishing Association, 155 F. 5$, another contest involving an estimate of the votes to be cast in a presidentvialelection.

The letter opinion on this subjectby Frank J. Delaney, Solicitorof the Post Office Department, February 6, 1948, recognizes. that the circumstancesof each separate contest or performance are controlling. After outlining~theprocedure to be followed in the first performance,the Solicitor says:

~*When conducted in.accordancewith the above dutline, and employing *8Stions of such a nature as not to require the contestantsto 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 questionswhich wili be used ,insubsequentprograms. 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 circumstancesof each separate contest operatedunder the plan. The plan.canbe operated so as not to violate the law. Likewise, it can be operated in such a manner as to be unlawful. Each contest thereunderwill present a separate fact situationwhich cannot be prejudgedas 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,slawful. On the other hand, if any controlling portion ofta 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