OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
._
.r
Ronorable X.0. Flowers i
Secretary of State
Austin, Texne
Dear Sir: Attention of Mr. Will ~e&Rfchardaon
+plnion flo,0&3f3.--~ is% ',
Re: CorporatlonLy~~Furg&e blause -
Innocent aprmte. .~' .'. ',~
Your roquest for
c~i'ullg consideredw this,
request a0 L"ollova:
he members mag from time to time deter-
tie.'
"We vould ap:,?reclate
an opfnlon from you as to
vhether such purpose clause ia authorized In Texas,
and whether it comes within the innocent sporta aub-
dtvlsion of Article 1302."
The purposes for whloh private aorporationfi
ma? be
formed in the State of Texa6 are enmmrated in Article 1302,
Vernon's Annotat&d Civil Statutes. Se&ion 9 of said artltle
306
Honorable M.O. Plovers, Page 2
reads am follows:
“9. To support and maintain bicycle clubs,
mad other Innocent mport.8."
Webmter'm IievInternationalDlotlonary,2nd Edition,
defines the terms "bridge", "8hlmt" and "mport", am followm$
“EPldgO - A card gam derived from vhimt, etc.
"Whist - A card mm for faur player8 played
withapaakof5 ?--i&k
G
"sport - 3ome partleularplay, gmmI8,or mode
of mxmamementjamt (1) a d.tvsrmionof the field,
am fowling, hunting, fishing, raelng, -8, emp.
ath%otle g-em, and the like1 also any of various
chl1m.rgaPem OF dlvormion6 umually played un$er
aover, am bovling, rackets, bmmkmtbm~, ho.
The came of 3mlth vs. Worthmm,157 3W 741, held that
under Rev. Stat. 1911, Article 1121, mubd. 36, permitting the
fomtlon of bicycle clubs mnd “other inuoaent sports," a aor-
porate charter naming In its purpose olaumo an automobllocrlub,
the purpose and objeat of which shall be to promote innooent
sports by mean8 OS automobtlee, vam inmuSSlc%ent, 8Inee a
definite lnnoaent sport must be named, vhlah the charter did
nat do. The earn8 also held that,the rule of "ejumdemgenerlm*
dld not apply, mince the.tena "@oyolo elubm" vam used ln the
8enme of a distinct and lndivldtiltnnooent sport, complete
within itself and separate in ills ldentltp. The oame almo held
that the aubdiolmlonof the ltmtute was not invalid beaaume
delegating by the quoted clause "other Snnooent mport8" legis-
lative power to the Setretary of State to determinewhat aor-
poratfonm mmg be formed. We vimh to paint out however that
mince the renditionof maid same, the Legislature In 1929 pasm-
ed Seatlon 91 of Article 1302, V.A.T.C.B., which authorlmem
the creation of corporations Soor the purpore of forinbg auto-
mobile clubs.
Article 615, Vernon's Annotated Texam Penal Code,
readitam Sollovat
Whoever shall , or bet or wager mny aor4r~r
or othzxisg of at mny-gmmm of awls at
any place not a private mxnoe ooaupied by a
Bonorable M.O. Floverm, ?mge 3
Samllx, shall be fined not exceeding fif%y dol-
lars. (Undermaorlngours)
It la an offense to play cards even without betting
mt any place, except at a private rmmldenae occupied by a
sma11y. See the following oam4mr
Elliottvs. State, 127 SW 5473
Borders vs. State, 6 SW 532%
Oallegam vs. State, 95 3W 124;
Lamar vs. State, 95 SW 511.
Article 617, Vernongm Annotated Texas Yens1 Code,
reads as Sollovm~
"The provlrlonmof the two preoeding articles
which permit gsmfng at a private residence oaeupied
by a family shall n&t apply in came much residence
im one oomunonlgr&orted to for the purpose of gmm-
ing, nor vhere the gmme played la m banking gmme."
This departmentheld in an exhaustive conferentre
opinion vritten by Eon. C.M. Cureton, First Ammimtant Attorney
General, (later Ohle? Sumtiae of the Su reuseCourt of Texas)
dated February 20, 1915, printed in 191B-1916, Reports of the
Attorney Oenmral, pmgem 454-470, in&, that pool mnd billiard
alubm could not be ahartermd under the purpose clause which
authorizedthe formation of aorporatlonm "to support and main-
tain blcgole clubs, and other innocent mportml beoaume maid
amusements of pool mnd billiards WON) Agamwmn mnd not "nportm.*
We quote frormmaid opinion am follovmt
%%e games of pool and bllllaldm am eomnly
understood are not sports in thm usual and ordln-
ary sense of that vord, but are guaem and there-
fore are not eabraoed vlth5.nthm terse,mnd pmvl-
&ions of subdivision56 of Artlele 1121.
"The use of words and phrmmem and the meaning
attached to thmm~may be detsrm&nedby their mtatu-
tory use, their judlaial, 001Zoquialand teehnlaal
uue and by their literary and historical emfployiment
....
“The courts of othei; state4 have likevlme ton-
mtantly and continuoumlyreferred to the axsuaoxmsntm
known as pool and bflliardm as gmmem arsdalmam8d
Ranorable #.O. Flowerm, Pm,ge 4
theme mmnxmemmntm,aa does our statute. along with
cards, checkers, e~c....~Undermaorlngours]
"The City of Clearwaterva. Bovmsn, 82 Pac.,
546.
"Squlsr vs. State, 66 Ind., 3171
"Sykes vs. State of Alabama, 67 Ala., 77.
"United State vs. McKennm, 149 Fed., 252.
"Ellison vs. Lmvin, 66 L.R.A., 604.
"The word 'sport' la usually confined to field
have other memnlagm,
sports, though of aourse it lllay
but its usual slgnifleatlonIs that auggemt4d.
"White vs. Western Aasurmnue Compaixy of Toronto,
54 liw 193.
"WIrth vm. Calhoun, 89 IIW,785.
"In the first stated mmme thm court refers to
a mportmman,quoting the Cent&y Dictionary am follow&t
"'One who sports, a man who praatioes
flold sports, 4mpeoIallyhunting or flsh-
lng, usually for pleasure and in a legltl-
mmte manner.'
"In the last nmm#d came ths question vam whoth-
er or not a theatricmlperformmnae,aon4lmtIngof
muslc and dmnoln& and ieate of aontortlon,was sport
or sporting. The statute under examlnatlonr4ad, so
Sar am It 1s nec488mry to refer to the case, am fol-
lows:
"*If w person of the age of fourteen
years or upvard shell be found on the first
dmy of the veek, commmonlyaalled Sunday, mport-
lng, rioting, quar~ellng,hunting, fishing or
shooting h4 or she mhall be fined, etc.'
"The statute vent momevhmt further than the quo-
tation does in also mmking It an off4nma,to labor at
comon labor on Sunday. The murt, after dimposlng
of the question and in holding that the theatrlcml
performancevem not embwoed within the tdnns of cam-
man labor, th4n took up the immue am to whether or
not It fell within the vord 'mpo&ing', as used in
gonorableM.0. Floweca, Page 5
this atLtute, and quoted vith approval the definni-
tion of ‘sport’as defined fn Webster, among other
thlnga saying
” ‘?3gort” ia defined by Webater aa
followa: To divert; to make aierry;to
represent by any kind of play; to exhibit
or bring out in public, as to sport a new
equipagej to play; to frollo~ to vanton;
to praatioe the dfveraiona of the ffaldl
to trifle.” According to the aama lexioo-
grapher, "sporting"means "lndulglngin
aportr practlolng the dlveralona of the
f:eld.” If we uae the definition of
“mart,” inateed of:the to? itself, in
EZ%%l~h~e “Zf 0EE~l j EeiZ~~-
in dlvertlngJ (2) to indulge in axwry-
aakingj (3) to lndul 0 In rspreaentlngby
any kind of play1 (47 to indulge In being
out in publlo,,aa to indulge in sporting
a new hat or carrlagej (5) to indulge ln
play or frolic3 (6) to indulge in vanton-
neaaj (7) to indulge in trifling) (8) prro-
tiolng the diveralone of the field. It la
obvious, we think, that the Lw@alature did
not eplploythe teflnIn the aenae of the
firat, aeomd, fourth, fifth or alxth de-
finition above given. They are too buoad.
They Include too muah. If adopted in the
oonatrmotlonof the atatute, our Sunday
lav would rival the moat atrlngent of the
blue lava. The third ia a aenae in whloh
the teffais rerely used, and ia illustrated
in the Century Diotlonaryby e line from
Dryden~ “Row epor%ing on the lyre the ‘Lovea
of youth.” Aa thua llluataated,It, alao,
is too broad, aa it lnaludea awiy oonuaonand
lnnooent dlveraiona. The seventh has no
to thla case. Thla leaves tha
ap~:~licatlon
eighth8 !practlclngthe dlveraiona of the
field, as the definition the lawaakerapro-
bably had in mind when the law vaa enaoted.
Thin appears still store probably on the OX-
a&nation of other defini’tiona.In the (Ien-
tury mati.onary*e general meanlng of “sport-
BonorsbleW.O. F1overa, Page 6
lng” la aald to be "engaging or concerned
in sport or dIversIon" the specific mean-
ing, "interestedIn or raaticlng field
aportarnt (89 11.W., .,87P
"From the foregoing It la seen that the court
took up each of the aeveral definitionsof sporting
as given In Webster and ooncluded that the Code under
whIah the proaeoutlonvae brought could not refer to
eny of the definitiona there given except the eighth
one vhIoh vaa tpracticlngtiediversions of the field,'
and It is thla definitionwhich It seems to us the
Legislaturehad in mind In providing that oorpora-
tions might be chartered for the purpose of proamtIng
bieyycleclubs and other innocent sports.
“The Supreme Court of this State has already
held that in drefting the purpose olauae of a charter
under this aubdlviaiona definite sport mrt be dea-
oribed or set forth.
%a&th VI).Worthara,157 S.W. 741.
'The court In en opinion rendered In tha Sa&th
oaae referred to baseball as a vell reoogaixedand
definite lnnoaent sport. It seem to us that this
aaae Is persuasive of the lnalatenaewhich ve make
that the vord 'nporta,'as used In this statute, does
not refer to @mm, but refers to those classes of
amusementswhich have been reaogniaed from time
Iaaaemrialas aporta, not to that olasa auoh aa
oarda, dice, pool and billiards, vhioh h")rebeen
from time lmmaorlal ~seifled as games.
This departmentheld In an opInIon written by Hon.
A.R. Stout, Assistant Attorney Oensml, dated Januall~12, 1934,
recorded In Vol. 353, pages 302-307, lnoluslve,that the
Hetropolitm Bridge Club of Rouaton, Texas, vas not entitled
to receive a ahartsr f'romthe Seoretary of State under aubdi-
Vision 9 of Article 1302 of the Revised Civil Skatutea. This
Opinion referred to Judge Curetonta holding In the opinion
above quoted. We quote from Judge Stout's opinion as follovar
"It has long been a deputmental ou6tom and
praatloe to refufteto gent eharter8 similar to
the one in question. TM.6 praatloe and euatom
Is due soam weight, eapeoially if there ahould be
mnmable l6.r).
Plovers, ?age 7
any doubt about the matter. Hoorman v. Terroll,
202 8.U. 727, 109 Tex. 1733 Sdwmrds v. Jams,
7 Tex. 372~ Flm Aark. v. Love, 108 8.W. 810
101 Tex. 376~ Walker v. Meyers, 266 S.V. 499 [T.x.
sup.). In the juagwmt of the vrlter, there 18
no doubt, for one mason, on aoaouat of the most
stringent laws that ve have always had against
eatis and gutag. Horeover, if the point in que8-
tlan should be doubtful, the opinion of the then
Attorney bneral, nov~&$'dqtice of our Supems
Court, Is, or xhould be HerPir county
v. Balamld, 205 S.W. 445 fZE%L4d).
"Hany years have passed since the&j Many
Legislatures frmh from the people hwkooars and
IT-* Ourrt&ukshavebeenreaodifiedand thin
rulI.ngof ove~elghteenyeara agoha not been de-
parted from, yet dmlng all of this tins, subdlvi-
slon 9 has not been ahanged one vhft.
"'phi6is not all. While mury mportsmlghtbe
gaaum and many &user might be sporta, bridge or
card plnyliq la one plea- or ps8tWe th8t hrs
alvaya~ been eoxuldwed and dealgnatedas a 1’
The vrltor haa failed to find where it ha8
desl.epyrted othwvlre. It la a card &are that is
en *offshoot*oi the old l&gll& game of uhiot
and that is all there ir to it. About It, tha
lexioographen says
“‘Aeard r8Bembllngvhhirt.'
Webster*6 Eev r ternationalDlatiomwy.
"Bridge ir just as muoh a &me u 18 poker
and they are both universally spoken of as ga?6es.
As onevhohas MISS knowledge of bothliole sn4
Bf~.Culbertson no imtanae 0aabe *oalXed&
where either oi them ever applied amythins other
th83lthOVOl’d 'gm't0 thI8 mat mtim.
'At the time subdIvlaioz~9 was r&rat purred,
bridge vaa not played muah, if even beeud of.
Poker, however, then as mu, Was Still SxteU& u
3%2
Eonorable X.0. Plovers, Page 8
faot, we had then, as now, stringer&lava mgalnat
it, and as lrte as 1911, we flnd Judge Dmvidmon
aaytngr
"'Thmt the prmctloe of gambling la
demoralltlng,lnlrioal to aoalety. and
destructiveto the rorala of the youth
a6 well as Iwn of uturer years.* Purvla
v. State, 137 S.W. 701.
'%e vriter does not believe that any good lav-
yer would seriously oontend for long thet A poker
club oould be orgmnleed under aubdlvlsion9, yet in
so far as the lava of our Legislature provide, bridge
and poker hew the acme legal standing or occupy the
amme station, legallY.
"Article615 of WI- Penml Code ot 1925 provides:
"'Whoever ahmll plaY, or bet or
wager any mosey or othearthing of value,
at a.nygame of oarda at mny place not a
private maldemse oacupled bY a frnily,
shmll be fined not exoeedlng fifty dol-
lrra.'
"In other vordm, whoever ahmll plug . . . mt ray
game of cards . . . ahmll be fined not exceeding
fift dollati, and the only exception la a private
realb co, vhich one amp play umrds tr game vlth oarda
in, ao long as he does not oommo~y resort to It for
thatplppose. If he commonly reaorta to such prlvmte
residence for the purpose of gmmlng, then his cornhot
Is illegal just as it would be In any place save a
private realdenoe,whether he plrced monay or value
on the cards or not. ArtSoles 615 and 617 of 1925
Penal Code3 20 Texas Jurisprudence,p. 619, pmrm. 14~
Osllegaa v. State, 95 S.W. 1233 harvim v. State, 137
s.7. $01. The above cited authoritlem serve to illurn&
trate the prino'lple,although the books are full of
analogous ones. Our Legislaturehas no doubt alvaya
prooeeded upon the theory that:
"'Cerda are as mumh a qsm;~qa~lce
ma ang device yet Invented.
State, 5 X0. 451. This mtatemmnt from ihe
suprewe Court of Missouri, is in keeping
with generml experlenoeand would oertmwY
~tmwable 11.0.Fhvo~, "a&a 9
be admitted by all men.,without proof,
argument OF diecourse.
"Since it 1s agalwt the law to play cards,
VhOther vlth 6~ VithOUt 8hkO8, in any plae0,
8aVe a private rerldenae that 18 not G-rhlJ
re8orted to for the purpO80 Of gaming, it 18,
therefore,both alsar and elementary th&t the
aorporatloncould not be chartered for a purpore
that va8 not lavful. 146 C.J., p. 126, para.
119.
"It 18 contemplatedby the lav that th8 uor-
poratlon, if a aharter vere granted, rhould have
a plaoe of bU8inO88. Artiole 1304. Ordlnarlly,
thi8 plaoe vould be the headquarter8of the 'olub.'
It would be here that the wmber8 would usually
wet and play bridge, yet thf8 vould be unlavful,
and in 8trlot legality, the lav could not and
vould not countenanceit, Should it be argued that
bridge vould only be played ln private home8,
ooauplud by a family, then there vould~be no nued
vhst8oeVer fOF a OOFpOZ'atiOXLA8 ha8 bOOn 8talad,
It hae long been a departnentalmale to not grant
dl6l't&8 8Uoh a8,the One IllQlle8tlOiLUO kWv Of
no exoeption to the male and have bum unable to
find any oa8e that vould 8aaation the granting of
a ahar$er, 8uah a8 the one applied for, under Tern8
lav.'
The pwO8e ohl8e Of th8 pX’OpO8Ud~O~O~atiOll 8tate8
that t&i wetlngm of the olub vi11 bo held at 703 Rluhmond Road,
8ou8ton, Texa8, or at the XW8ldenoe8 of other member8 of said
alub a8 the member8 my frondties to time determine and that
aards will be played at 8aid plaoe8. Said JNl’pO88 daU8e do08
not dleeloae whether or not 703 Riahmnd Road 18 a prfVatS re8i-
dews oacupled by a family nor da08 it di80108e vhether or not
the other re8idenceaare private %W8idenue8 occupied by fuilie8.
The playing of eard8 by 8aid propo8ed club member8 may or Day
not.be illegal, dependentupon all the fast8 and Oireum8tWe8
Lnrolved,under the rule8 of law laid davn above in thi8 opinion.
H6vever, this departmentvi11 not make artya88WEPtlOna8 t0
vhether or not 8aid alub vi11 or will not violate the 1aV vith
reibrenO8 t0 playing oard8 or gsaLing. !ht PWardl888 Of wh&h-
or or not the game8 played are played In ~1 illegal manner they
” -- 314
&nwrable LO. nover8, Page 10
o@tafly CawOt be ala88ed a8 "fMOOent 8pOrt8" Vithh the
aantemplatlonof rubd. 9 of A&ials 1302, v.A.T.c.S., rupra.
In Vim Of the foregOing authOrltie8,it 18 the
@nlon of thlr departmentthat "bridge", "vhl8t" and other
card g8WS are "g8WS" and aF0 Wt "ilUlOOWt 8pOFt8" Within
th8 oontemplatlonof rubdlvl8ion9 of Article 1302, V.A.T.C.S.,
8upra, and that said proposed charter &mild be ref'u8edby
tlm Seoretary of State.
Your8 very truly
ATTORHBY ORRHFUL OF l'EXAS
QPROVEDNOV 15, 1940
u/7%-M&
ATTORNEYGENERAL OF TEXAS