T.HEA~ORNEY GENERAL
OF TEXAS
CaRAm
c. wan
ie
P”“““” GIPIN=-=
Honorable Holvey Villlemn Opinion Bo. O-2309
Criminal District Attorney Re: Whether or not prise scheme of
Waco, Taxes theetre constitutes a lottery.
Deer Slrr
Thin will eckooa&dge receipt of$hnr letter of April 30, 1940,
requ&ting an opinion of-thir department ee to whether or not a prize
a&em ,of e loeal~heatre, siriler to the,"Pot of Guld" radio program,
!. conatltutar e lottery mch,se ia mede un%wfulby Article 654 of the
penal CodB. The p~ia~dercr1bed~l.u your letter.,86 eolJ.owe~
‘~ ‘The local showo'propoee to have a wheelahich they rpln and
it will etop -'a certain number which all1 Indicate a certain page In
our local city directorJI, and they will again spin the wheel aad it wtll
stop et a certain lw on said page, and the naae ep+earing on that line
will receive e ,ceeh prim. The theeter~aill attempt to call the number
and eleo will announce the name from a loud apeeker et their theater :
here In Yaco, eeid annouqcement to be heard on the down town city streets,
end If the party receZving the phone cell ie~at home or hear6 the announce-
ment over the loud speaker, he Is entitled to receive the prize. It la
not neceeeery for thcrecelver of the prize to have purchaned a ticket
at any of the theetere."
~Sectiox~47 ef-Article III of the Conetitutlon of Texan ,madsa
'Tha~Iag1nlatum~shal.l paea Lava prohibiting the eetebliahment
of lotterle#'and gift entsrprlres in thlo State, as well ea the rale
of tickets In lotterier,~gift enterprinee or other evaalone Involving
the lottery principle, clltabliahed or existing, in other atetes.'
Purnuent to much command, the Leglalsture peeeed ATticle654
of the~Pena1 Code,~whlch reada ae followaI
;,:g ~:*If q-perron~ehall eetablleh:a~ lotteryo~~dlspime of any
eetete;'real M pcr¨, bf lottery, he,rhs&l be finad aot.lelle than
One Hnndrad ($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 defl-
nltlon 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 lot-
teryr (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 perti-
clpeting. 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 Prender-
gest 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 prin-
ciple* 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, 24 Ohio H. P. (R.S.) 186~. Moreover, ‘gift enter-
prl6es’ 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, qupre, 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 paymenteither directly or indirectlyby 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, how-
ever, the Iagialature hen seen fit to carry out the conrtitutionalman-
date 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!rroFinEY
GBNERAL
OF TEXAS
/a/ Gerald C. lknn
By /e/ Walter R. Koch
ATTORlIEYGEHERALOFTEXAS Walter R. Koch
Aaoi~tant
By /a/ S8mee.D. +&lea
JDS/O+l J-e D. Suu.llen
APPROVED
OPINION
CoMHITTE&
BY /I/ BWB .
CHAIRMAW