Untitled Texas Attorney General Opinion

Honorable Thomas R. Chandler County.Attorney Robertson County Franklin, Texas Opinion No. O-1058 Re: Whether or not operation of “Mo,ovy-Award” plan by looal theatre constitutes Dear Sir: a lottery We have for reply your letter of January 24, 1940, requesting the opinion :of this department as to whether or not the opera- tion of a “Moovy-Award’ scheme by a local theatre constitutes a lottery and as such stands condemned by the Penal Code bf this state. The plan is described In your opinion to Mr. George Chatmos, owner of the Chatmos Theatre, Hearne, Texas, as follows: “Approximately two weeks ago, you re- quested me for an opinion on whether or not a copyrighted plan, known as ‘Moovy-,LwAP~,’ would come within the prohibition of our lot,tery Statutes. At that time you left me the pro- posed rules and regulations governing such plan or contest and a sample sealed envelope containing the question or problem to be solved by a person or persons who ‘mayhave had his name signed to same, if such person is present or whose presence can be obtained, when same has been drawn on some night to participate. “Said rules and reguktions are as follows: “(1) Each patron may sign only one sealed entry blank (envelope.) “(2) Each entry blank (envelope) must be signed In the presence of a theatre attendant and must not be opened. A broken seal will serve to disqualify the person whose name appears on this entry blank. Hon. Thomas R. Chandler, Page 2 (0-1858) “(3) Each entry blank contains a concealed question or problem. "(4) All signed entry blanks are kept In a locked container. “(5) On the night designated by this theatre as 'MOOVY-AWARD NITE,!:the container holding the signed entry blank will be unlocked and opened and some designated person will select at random one or more of the entry blanks in accordance with the number of awards to be made on that nl.gi; I. “(6) If the person whose entry blank is selected Is present, or at any other place so designated by the theatre and can correctly answer the question or problem contained in their signed entry blank within a ,reasonablelength of time they will receive the award that has been announced In advance by the theatre. All ques- tions must be answered to the satisfaction of the judge or judges whose decision shall be final. “(7) Should the participant fall to answer t&e question or problem correctly to the satls- faction of the judge or judges they shall not receive the award. Awards are to be made solely upon skill and knowledge. “(8) If the participant whose entry blank is selected falls to answer within a reasonable time when their name Is called then that entry blank is to be placed back unopened in the container. cases where the entry blank has b~~~)op~e? whether the question or problem was correctly a;swered or not, then this'blank shall be destroyed and in order that participant may enter again it will be necessary for him to sign another sealed entry blanL. :dition to the above printed rules and reg‘rlp -'ou inform me that any and all persons m.- In the contest, by only signing _i ; address on the sealed envelope .i3- I;;>~- z..ig,or being required, to pay any fee or cna-lderation therefor; and that when, and Hon. Thomas R. Chandler, Page 3 (0-1.858) If, said name Is drawn that It would not be neo- essary for the person named to be a paid customer of said theatre on the night of the drawing or at any other time ln order to qualify to enter the oontest.~ Suoh person named on the envelope drawn3 if present or on the outside of the theatre when his name la oalled, and answers by appearing within a reasonable time thereafter, may participate. "You also inform the writer that a prize or prizes will be awarded the person or persons solving said question or problem on the night In question; said prize or prizes shall be made in money or merchandise.'! Section 47 of Article III of the Constitution of Texas,~i:reads':! '!TheLegislature shall pass laws prohibiting the establishment of lotteries and gift enter- prises ln this state, as well as the sale of tickets In lotteries, gift enterprises or other evasions Involving the lottery principal, estab- lished or existing, ln other states." Pursuant to such command the Legislature passed Article 654 of the Penal Code, which reads as follows: "If any person shall?establlsh a lottery or dispose of any estate, real or personal, by lottery, he shall be fined not less than One Hundred ( 100) Dollars nor more than One Thousand f$1000) Dollars; or If any person shall sell, offer for sale or keep for sale any tickets or part tickets In any lottery, he shall be fined not less than Ten ($10) Dollars nor more than Fifty ($50) Dollars." In City of Wink vs. Griffith Amusement Company, 100 S. W. (2d) 695, (Tax. Sup. Ct.) the court said: "The State Penal Code does not define a lottery, but our courts have interpreted it In accordance with public usage, to mean a scheme or plan which provides for a distribution of prizes by change among those who have paid, or agreed to pay, a consideration ,for the right to participate therein. 28 Tex. SW. p. 409, Sec. 2, and cases cited In the notes." Hon. Thomas R. Chandler, Page 4 (O-1858) . This . department ^ . , has. .on , several - occasions . .--.passed . on tne questlon or wnat constitutes a lottery, nolalng In (1) OpinlonO-428 to Honorab&Clint A. Rarham, County Attorney, Erath.County, dated April 26, 1939, that a number system used by a theatre'whereeach seat In the theatre ls'ntun- bered and a ticket is seleoted or drawn from a number,of tickets containing all the numbers~ on the seats and a,money award or other thing of value ls,given to the person sitting In the seat that.has a corresponding ~numberwith the number drawn Is a "lottery" and the operation thereof Is a violation of Article 654 of the Penal Code. (2) Opinion O-967 to Honorable Tom Sea County Attorney, Potter County;dated June 1f?, 1939, that a scheme whereby, in substance, a 'theatre owner gives a prize to some patron of the theat& present after a~~&%i@ngfrom which some patron's automobile llcense'number may be selected, under the facts presented, constl- tutes,a violation of,the lottery laws of this- state. (3) Opinion 0-Lfv$,to Honorable Robert S. Cherry, County Attdrney;~Rosque County,.: ', dated August 10, lgS$ ~that it is a violatlon~ of the law for the merchants of a given town or community to give their'customers tickets. with each'purchase of merchandise from them, which tickets are good for chandes upon merr chandise or money given away at drawings, held periodically Inthe said town or tiommun!ty" (4) Opinion O-1200~to Honorable Robert,F. Peden, Jr., County Attorney, Matagorda County, dated August 12, ~1939, that the "Aces Quiz Night" scheme or plan (under the facts stated' to this office) is a "lottery" and in vio- lation of Article 654 of the Penal Code of this state. (5)~ Opinion 0-1329~to Honorable JacksBorden, County Attorney, Parker County, dated~, September 8,. 1939, that a sch~emewhereby, in substance, a theatre buys the~fingerprlnts o'fa oltizenof the.community Hon. Thomas R. Chandler, Page.' (o-1858) by selection of one fingerprint from the files of the theatre, Is a violation of the lottery laws of this state..?. ". (6) Opinion 0-1336 to Honorable Paul T. Halt, Count Attorney, Travis bounty, dated September Iti,,,1939,that a soheme whereby, ln substance, a suit club" gives credits In trade to winning contestants for completing a sentence, etc., constitutes a violation of the lottery laws of.~thl‘rj%%t⪙ (7) Opinion O-1789 to Honorable Andrew Patton, District AtCorney, Dallas County, dated December 22, L@s, that a theatre program featuring the "Doctor I. Q." radio broadcast over a network is not a violation of the lot- tery statutes of this state. In the case of Griffith .&@sem@nt~Company vs. Morgan, 98 S. W. (2d) 844, it was held that the elements essential to constitute a lottery are (1) a prize In money or thing of value; (2) dlstrlbutlon by chance, and (3) pay- ment, either directly or lndlreotly, of a valuable considera- tion for the chance to win the prize. See also City of Wink vs. Griffith Amusement Company, supre; Featherstone vs. Independent Service Station Association, 10 S. W. (26) 124; Peak vs. United States,::.$l~ %ed. (2d) 973; Grant vs. The State, 112 S. W. 1068. Instate vs. Randall, 4: ~.&Tex. 296, that and Holman vs. The State, 47 S. W. 850, It was any scheme for the distribution of prizes by chance Is a lottery. Accordingly, the "Bank Night" scheme (City of Wink vs. Griffith Amusement Company, supra) the "Buck Night? scheme (Robb and Rowley, et al vs. The State, 127 S. W. (2d) 221), and the "Noah's Ark" scheme (Smith vs. The State, 127 S. W. (2d) 297) have all been held to be lotteries. We take the liberty of quoting again from your opinion to Mr. Chatmos as follows: "As to the seoon&lement In the crime of lottery, that Is, the.zward or dlstrlbu- tion or the prize or prizes by chanoe, will say that the act of drawing of the sealed envelope upon whloh 1s subsorlbed the name of the 'lucky' person, and his address, is In Itself a chance, unless the same Is offset by the 'chance' of the named pe$s,o,n,!s presence and solve the question or prdbiem contained in the sealed envelope bearing suoh persons name. Hon. Thomas R. Chandler, Page 6 (o-1858) "As has been stated by your and accord- ing to the rules and regulations stipulated the second element of the crime of lottery is not present, In that the prize Is awarded and made solely upon the knowledge and skill of the person whose name appears on the sealed envelope In the solution of the ques- tion or problem therein contained, even though the person's name was 'selected,by chance, that is, by drawing suoh envelope from a container." (Citing Boatwright v. State, 38 S. W. (2d) 87.) We regret that we cannot concur with you In this position, and this 'departmenthas under similar facts ruled adversely to yourcontention. In Opinion O-54 to Hon. Renfro Speed, County Attorney, Freestone County,'~ Falrfleld, Texas, dated November 21, 1939, the theatre selected a patron as "movie critic" by a drawing, and his duty was to attend and crlticlze'pictures for which he was paid a cash award. In that opinion it was held that the plan constituted a lottery, and we quote,from that opinion as follows: "It may be contended by some thatthe theatre operator has conceived an effective escape from the lottery laws by providing that the person designated 'movie crltlC! must actually attend the pictures and must actually criticize, for which criticism he wlll~be paid the grand award In cash. We do n&believe the Legislature intended to. enact a statute which might be evaded by such subterfuge, and this department has heretofore ruled adversely to similar contentions-~ In Opinion O-1329, dated September 7, 1939, the theatre operator sought to sid~estepthe lottery by 'purchasing' the fingerprin~tof the winning patron, yet under the particular facts the scheme was held to constitute a lottery. Likewise, in opinion 0-1336 of this department dated September 18, 1939, in which a 'suit club' was held to constitute a lottery, the fact that contestant was c.ompElled to write a twenty-five word statement telling why he liked the brand of clothes in question availed the proprietor nothing in escaping the condemna- tion of Article 654 of the Penal Code." Hon. Thomas R. Chandler, Page 7 (o-1858) Under the facts presented In opinion O-1200 of this department to Honorable Robert F. Peden,.Jr., County Attorney, Matagorda County, Ray City, Texas, dated August 12, 1939, the theatre oonduoted a 'quiz nlght" and patrons reoeived prizes dependl?g"upon~thelr ability to answer certain questions, the patrvns reoelvlng the questions entitling them to awards if correct enswers were given, as a result of ohanoe. This scheme was held to oonstltute a lottery. The facts Involved inopinion O-1789 of this department to Honorable Andrew Pa&on, District Attorney, Dallas aountyZ~.~Te~as,dated Deoember 22, 1939, are dls- tingulshable. There It was held that a theatre program featuring the "Dr. I. Q." radio broadoast over a radio network is not a violation of the lottery statutes of this 'State.. However, in that situation, all patrons of the theatre were entitled to participate by answering ques- tions If they desired, and no one was seleoted to par- tloipate as a result of drawings by lot or chance. The chance element was not present. Likewise, we believe that the case of Roat- wright vs. State, 118 Tex. Cr. R. 381, 38 S. W..(2d) 87,~ olted In your opinion, Is dlstlngulshable from the soheme presented in your letter. In that oase the Court of’ Criminal Appeals held that a punch board wherein were placed different oheoker problems, the same to be com- p&eted by the participant after paying a fee for the 'privilege of playing, did not constitute a lottery, even though prizes were awarded those working out the best solutions. However, the court emphasized the fact that the ,only element of chanoe there lnvovled was the nature of the checker problem to be drawn. There any person might participate in the geme and every person who purchased a ohecker problem stood on an equal footing. We believe that the right to the opportunity of answering the ques- ti-ens-orsolving the problems under the faots involved-in gcur:.l.@tter Is a valuable right which aoorues to a.pat%n only. aaa result of chance,--that is, by having his sealed eirtryblank drawn and selected. Thus, the dlstrlbutlQn of the prize to suoh Portunate.-QW%%~*ls a result of-$h"cice. We conour with you In the belief.pxpressed in your opinion that the mere fact that a person may partlol- pate although he Is not present In the theatre If his name Is aalled, and he presents himself within a reasonable time, is not sufficient to relieve the plan of the third element of a lottery; namely, the furnishing of oonsideratlon. Ron. Thomas R. Chandler, Page 8 (O-1858) We quote from the opinion of judge Hawkins in Cole vs. State (Ct. Cr. App.), 112 S. W. (2d) 725, as follows : "The undisputed facts proven by the State show that no one present at the theatre on 'Rank Nite' was entitled to have their name or number participate In the drawing for the prize unless their name@::1 were registered in the 'Bank Nlte Rook,' for which registration no charge was made. Those absent from the theater on said night but whose names were likewise registered without charge also participated in the drawing. So It will be seen that no direct consideration passed from the participants to appellant. It occurs to the writer that the vice in the scheme--the things which make it a subterfuge--are the following: The party who is in the theater Is immediately present to identify himself If perchance the number corresponding to the party's name on the book be drawn. If a number be drawn which corresponda:&o the name of some one not .in the theater, It appears to be a remote pro- bability that such a one will be able to appear in the theater and identify himself within the short time allowed, and no possibility for such Identification If the holder ~of the number drawn is not in the immediate vicinity of the theater. Therefore, it appears plain that those who have paid admission to the theater are in a more favorable position to claim the prize than one on the outside, although the names of both have been registered in the book without charge. The practical working of the scheme is bound to be known to all patrons of the theater, If the prize would have gone to some one not present but remains unclaimed, it Is pyramided on the amount of the prize for the next 'Rank Nite' drawing. The conditions naturally exclts or increase a desire on the part of those eligible by reason of their names being registered to pay the admission price to the theater in order to be more favorable situated to claim the prize on a !Rank Nite' drawing, and in this way an indirect consideration does move from them to the operator of the scheme and furnishes the third indispensable . Hon. Thomas R. Chandler, Page q (O-1858) element of a lottery." We believe that the essential elements of a lottery are presented by the facts set forth Inyour letter. The theatre provides merchandise or money for those patrons fortunate enough to have their questions selected, and who answer them correctly. The prize element is present. Moreover, a drawing or selection of the names of patrons fortunate enough to partiolpate Is made and the chance element oocurs. The third element neaessary to constl- tute a lottery, namely, the furnishing of consideration directly or Indirectly by those participating, is also present. See Cole vs. The State, supra. Consequently, It is the opinion of this depart- ment, and you are respectfully advised, that a theatre operator conducting the scheme set forth In your letter would be guilty of operating a lottery as prohibited by Article 654 of the Penal Code of Texas, 1925. Yours very truly AT-J!CRNEYQENERALOFTEXAS Walter R. Koch Assistant By J'DS:LW James D. Smullen APPROVED FEB. 2, 1940 ATTORNEYQENERAL OFTEXAS