Honorable Fred T. Porter
CciuntyAttorney
Kaufman~Countg
Kaufman, Texas
Dear Sir: Opinion NO. 0-2063
RE: Whether or not "Box Office Insur-
ance" constitutes a lottery.
We have carefully considered the question presented
in your letter of March 7, 1940, wherein you request the
opinion of this Department as to whether or not the "BOX Qf-
flee Insurance Plan" of a local theatre constitutes a lottery
in violation of Article 654 of the Penal Code. Your letter
reads In part as follows:
"I would illceto have an opinion from your
department on whether the following plan of
stimulating attendance at theatres is a lottery
under the authorities in this state. The plan
is as follows:
"It is called 'Box Office Insurance' and
a printed policy is issued to each and every
person contacted by the management of the show
whether a patron or not. This policy is worth
the face value of $25.00 under certain conai-
tions. Once a week, on a certain night select-
ed, the managment calls for numbers to be given
by persona in the audience. Four numbers are
asked for, each being below 10, and these four
numbers when arranged together form the number
of the policy. Before the issuance of any pol-
icy the person receiving such signs an applica-
tion card which is numbered and put In a file.
If the person whose application card has the
number called out by the audience Is present
in the theatre,he or she receives the cash
value of the policy; but if the person is not
in the theatre a'tthe time of the calling out
of the number aiidname, then the name of the
one whose application card was so numbered shall
be prominently posted in the lobby of the theatre
for a period of one month, and any time during
Honorable Fred T. Porter, page 2 O-2063
the month the holder of that policy can call and
the management will pay the amount of the policy
to such holder. If at the end of the one month
period, no one has called and presented such pol-
icy, then the amount of such policy is donated by
the theatre management to the Parent-Teachers As-
sociation of the town or if there is no Parents
Teachers Association then to some other like
organization. There 'isattached'hereto a copy
of the Policy, application card and envelope for
further Information in regard to the plan.
Section 47 of Article III, of the Constitution of Texas,
reads:
"The Legislature shall pass laws prohlbit-
ing the establishment of lotteries and gift en-
terurisea in this state, as well as the sale of
tickets in lotteries, gift enterprises or other
evasions involving the lottery principal, estab-
lished or existing, in other states."
Article 654 of the Penal Code, reads as follows:
"If any person shall establish a lot~tergor
dispose of any estate, real or personal; by lot-
tery, he shall be fined not leas than One Hundred
($100) Dollars nor more than One Thousand ($1,000)
Dollars; or if any person shall sell, offer for
sale or keep for sale any t.lcketsor part tickets
in an lottery, he shall be fined not less than
Ten ($10) Dollars nor more than Fifty ($50) Dollars."
AS stated ta you in opinion No. O-1819, dated January
27 1940, the elements essential to constitute a lottery are
(1s a prize. (2) chance; (3) a consideration. City of Wink vs.
Griffith Am&ement Company (Texas~Supreme Court), 100 S. W.
tit) 695; Griffith Amusement Company vs. Morgan, 98 3. W. (26)
. It is clear that the first two elements are present --
a prize of $25.00 is offered once a week; llkewiae, the chance
element occurs when the prize is distributed to the fortunate
"insured", if he is lucky enough to have his "policy" number
called. Our problem concerns whether or not the necessary
element of consideration is present.
In this connection you point out that the money of-
fered may be received by two classes of prize-winners: first,
those within the.theatre who have an opportunity to witness
and participate in the proceedings; and secondly, all other
people who are not in attendance at the theatrd who have made
Honorable Fred T. Porter, page 3 0 -2063
application for a "Box Office Insurance" policy. In the event
one of the latter class of person's policy number is called,
his name will be posted in a prominent place in the lobby for
a period of one month, during which time he may call, Indenti-
fy himself and receive the prize.
Insofar as the first class is concerned, that is, pa-
trons actually present in the theatre, there can be no doubt
that the scheme constitutes a lottery. We quote from the
language of Chief Justice Cureton, City of Wink vs. Griffith
Amusement Company, supra:
" .. . In the instant case, there were two
different classes of possible prize winners,
namely, the holders of free registration num-
bers, who chose to remain outside of the theater,
where neither the show nor the paraphenalia of
and actual operation of the drawing could be
seen, and those who, at least on 'Bank Night',
paid the consideration required at the door, en-
tered the theater, and saw the show, including
the paraphernalia to be used in the drawing, and
the actual drawing itself while comfortably seat-
ed close at hand so that they might hear without
fail the announcement of the winner and be pres-
ent to claim the prize, each privilege a concomi-
tant part of the entire scheme. It is idle to
B, as to whose who entered the theater and en-
joyed the Drivilenea named, that the admissiog
Charge
and advantages stated above and the Drize emolu-
ment of the arawlniz. This admission charne is in-
PeDareble ftiomthe Drivilenes enumerated, which
were materlallv different from the Drlvilenes of
those who remained outside of the theater hold-
ins the so-called 'free' renistration numbers.
It la ialeto say that the Dasment made for see-
1
-, in Dart at leaa;Leat;~r6!e
for the arawi M and the chance Riven. IUZQ
to be seen and done in the theatre and the ~ri-
vilenes above enumerated which accomDanied them,
are all a Dart of one and the same show, meaning
the entire Droceedirxs inside the theater. The
fact that vart of the things to be enioyed br
those who Daid at the door were classed as 'free'
by the defendant in error does not chance the
legal effect of the transaction, or what was ac-
tually done by the defendant in error, namely,
for the Drice of admission to Rrant the natron
not only the ODDortunitr to see end hear the DiC-2
i
Honorable Fred T. Porter, page 4 0-2063
m, but to see and hear and enios the habill-
ments of the 'Bsnk NiRht I, drawing, etc., detail-
ed above. We are unable to see in what msnner
the giving of free renlS.ration numbers to those
outside of the theater would chanue the lenal
effect of what was clone'inaidethe theater,*.
which a charge was made; . . ." (Underscoring ours)
But what of those persons who may participate "free"
by merely making a plication for a policy and whose name (if
they are fcrtunateP will.be ,losedin a prominent position in
the lobby? Does this device constitute an atteupted evasion
of the lottery laws, or is the scheme outside their purview?
1% hap been sa'Ldthat had those who conducted the famous
Louisi~anaLotterv In the early days made good their promise
to give s free ttcket to the president of each bank in the
state, still the scheme wnuld not have escaped the condemna-
tion of the laws against lotteries.
The countless schemes of man to capitalize upon the
natural cupidity of his fellowman are legion; yet our Texas
courts have in all cases pierced the veil of subterfuge and
refused to countenance artifice. This Is the position we be-
lieve our courts will take should a case like the present
come before them. We believe that a consideration does move
to the donor of the prize in the present instant sufficient
t3 coiidemnthe plan even though participation is allowed by
non.patrona who have a month tc claim their prize. As in the
first pa.ragraphof your letter, the purpose of the plan la to
stimulate attendance, and, we suppose in aaait:on serves as
an advertising scheme. Is this not at least an indirect con-
sideration moving to the owner of the theatre? 'Webelieve so.
As stated by Judge Graves in Cole v. State, 112 S. W.
(2d) 725, on motion for rehearing:
I,
. . . A consideration may consist of a
benefit movin& to the donor of the prize renerd-
less from whom the benefit may borne. See Corpus
Jurls, vol. 13, p. 311. Appellant testified
thEt he thought since eatablishiriga bank night
that it is possible on Tuesday night it (the
attendance) had increased some, and that the
advertisement for his theater, he thought, was
benefited by bank night, and, in the light of
c'~rknowledge of human nature, we feel,sure that,
unless such henefits had accrued?,he would not
ha,vecontinued such bank ntghta. (Unaerscorlng
curs)
Honorable Fred T. Yorter, page 5 O-2063
Likewise,~as stated by Chief Justice Gallagher in Robb
hnd Rowle united, Inc., ‘et al v. State (C. C. A. 1939), 127
s. w. (2af 221;
“Appellants apparently concede .that ‘Buok’
nights ab operaMa by them involved tile distri-
bution of cash awards by chance, but they con-
tend that nb conaidercition iias received by them
for such distribution. Substantially the same
contention was made in the case of State v. Robb
& Rowley.Uiiited, Ihc. ;Tex. Ciir. App., 118 9. W.
(2d) 917, and the court, in its opinion in that
case, held that while no direct charge was made
for registration, nevertheleaa the inoreaaed
patronage expected by reason of the operation
of such scheme, though only an indirect benefit,
was a sufficient consideration to warrant its
being classified as a lotter See also: Cole
v. State, 133’Tex. Cr. R. 54r , 112 5. W; 2d.725,
2 and j.*.City of Wink v. Griffith, 100 9.
grq&) 695, 699, par. 12, and authorities therie
cl.tea i, State v: U&wan, MO. Sup., 120 S. W. (26)
1098.
.~
In Featherstone v. Independent Serviaii Station Associa-
ti6n, ,(C.C.A. 1928) 10 S. W. (26) 124, defendants distributed
tickets to patrons of their service station good for a chadce
on an,automobile to be given away. .Defendants likewise gavel
away ‘&me ticket free to those who had not purchased merchan-
dise, and the oourt said!,,
“This testimony falls to show any material
ohange in the eoheme as originally operated, but
reveals a change simply in the plan o? its opera-
tion. While dealers, under the nti plan, d&s-
tributed tickets to noncustomers as well as to
customers, .it *eems that the scheme was to dia- ‘.
tribute tickets, in the me”in to customers; as
the evidenoe discloses that only 8 few negligi-
ble in number, were given to persons oiher than
oustomers. That the giving of tickets, at-d the
drawings and distribution of prices, were in-
ducem6nts.to patronage and unquestionably lured
customers, is shown from the very satisfactory
business results that followed. Patronage thus
induced was the consideration that paseed from ,,
the ticket hdlder for the chanoe received , . . . . .
In Smith v. ‘State, (Ct. Cr. App. 1939) 127 S. W. (26)
297, defendant received a license fee from,,retail m&chants
for the privilege of joining a ‘%oah’a_ Ark orga?icatlon.
Honorable Fred T. Porter, page 6 Q-2063
The merchants in turn distributed cards and stamps to the
public, upon the completion of which cards a person was en-
titled to participate in a chdnce to receive a substantial
prize. The court tieldthat payment of these license fees to
defendants by the merchants operated'aa~~an~indirecttionairler-
ation for all persons who can@ to such merchants' place of
business and requested a stamp-.orcard for the purpose of
entering into this contest. '~Thecourt held this scheme to
constitute a lottery and said:
"We think'it clearly appears herein that
appellant received a fee from the 145 misrchanta
and dealers who paid hitia license fee and join-
ed his 'Noah's Ark' organization, and that the
payment of such fee operated as a consideration
for the entering Into the drawing contest of all
persons who'came to such dealers' place of buai-
netisand requested a'card or a stamp for the pur-
pose of entering this contest. That this license
fee was the.uasment of a consideration movinu in-
directly from the contestant and directly to the
auuervisor or owner of this scheme. Moving indi-
rectly, it may be for the benefit of the contestant
through his merchant or dealer who also received
a benefit therefore presumably at least, in the
advertising that he was obtaining &a well as play-
ing upon the natural cupidity of mankind to obtaln~
something for nothing, and this moving it completes
the trinity of a prize arrived at by chance, and
based upon a consideration, not only given by the
conteatant.but received by the donor. (UM erscor-
ing ours)
In view of the authorities cited and for the reasons
stated, you are respectfully advised that it is the opinion
of this Department that the "Box Office Inauratice"plan under
the facts stat&3 constitutes a lottery in violation of Article
654 of the Penal Code of this State.
Very truly yours
JDS :LM:wc ATTORNBY GENERAL OF TKXAS
APPROVED MAR 18, 1940 By s/Walter R. Kbch
s/Gerald C. Mann Assistant
ATTORNEY GENERAL OF TEXAS
By a/J&me%.D. Stillen
Approved OpIniofiCommittee James D. Smullen
By s/BWB Chairman