Untitled Texas Attorney General Opinion

OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN QRILO c. UAWN ATramluv .‘“anLL Eon. Jack Borden, County Attorney parker County Ueatherford, Texas Dear Sir:. Opinion Ro. Q- Re: Does a pl eby a theatre of a cItLzen of the Constltu Pour. request tlon has been received The plan vhere uys the fingerprintof a citizen of the co d of operatlon Is sub- stantiallyas fol In'the front lobby graph cards are kept ngerprlnt Ink vhere rd, with their address, and the place provided for it. le with other cards already The people signing these to buy an admlsslon ticket nor order to sign and fingerprint.. gnated night set aside each veek by the GERPRINT NIGRT, the Pile with all:the erprinted cards are taken to the stage re vhere someone Is selected from the In case of some one being famlllar with fln- elng appointed to make a selectionof one fingerprinthe thinks is the best or has some particular characteristiche favors. The flngerprInt;beingon the back side of the card and the name on the front side shows that.thIs selection Is made from the fingerprint only and not the individualname. This card Is then handed to a second person on the sta$e vho turns the card over and calls the name of the autograph appearing thereon. If this person whose name Is called comes for- 5.54 Bon. Jack Borden, Page 2 ward to the stage within three minutes from the time the name 18 called and Identifieshis autograph and f'lngerprint,they are then paid the weekly amount posted by the theatre for the purchase of th&,finger- print snd.they are requested to sign a card giving the theatre the right to purchase this fingerprint and use It for their files only except In the case where it may be necessary to use for IdentlfIcatIoncaused by some accident or otherwise. If'thls person vhose‘n'+e vas called Is not there, within the designated time, to identify his autograph,fingerprintand sign the card to permit the theatre to make the purchase as stated, this veekly amount set aside by the theatre to purchase the fIngerprIntIs carried forward to the next week and then at that time It 1s added to the regular weekly amount set aside for each week and so on until a purchase Is actually made of a fingerprint. "The theatre has the right to hold all fingerprints given In their files at the theatre except as stated above In case of accidents, and the right to use those purchased for educationalpurposes only. "Uhll&en under 14 years of age do not participate. "Each person who sells the right to use their flnger- print under this method shall sign the card giving the theatre the right to purchase same and place It In the files vlth the others purchased and a purchase cennot be msde If this card Is not signed at the proper time." Article 654 of the Penal Code reads as follows: *If any person shall establish a lottery or dispose of aw estate, real or personal, by lottery, he shall be fined not less than one hundred nor more than one thousand dollars; or if any person shall sell, offer for sale or keep for sale any ticket or,part ticket In any lottery, hel;z;;lmbe fined not less than ten nor more than fifty . We quote from Tex. Jur., Vol. 28, p. 409, as follows; "The term lottery has no technical sIgnlfIcatIonIn the law, and since our statute does not provide a definl- tlon, Its meaning must be determined from popular usage. According to that test a lottery 1s a scheme for the dis- tribution of prizes by lot or chance among those who have paid or agreed to pay a considerationfor the right to participate therein, or the distributionItself. . . ." 555 Eon. Jack Borden, Page 3 See the oases of -- State vs. Randle, 41 Texas 292; Featherstonevs. IndependentService Station Association of Texas, 10 S.W. (26) 124; pulbrlght vs. State, 38 S.W. (2d) 87. finthe case of Featherstonevs. Independent Service Station Association, supra, the court defined a lottery as follovsr "A lottery for all practical purposes may be de- fined as any scheme for the distributionof prizes, by lot or chance, where one on pagig money or giving other thing of value to another obtains a token which entitled him to receive a larger or smaller value or nothIng, as some formula or chance may determIne." The Federal Circuit Coti of Appeals In the case of Peek v. United States, 61 F. (26) 973, has given the following deflnl- tlon of a lottery: "Acheme for the dIstrlbutIonof prizes or things of value by lot or chance among persons who have paid or agreed to pay a valuable considerationfor the chsncekto obtain a prize. And again, a soheme by which a result is reached by some action or means taken, in which result man's chdoe or design enable him to knov or determine . . . until the same has been accomplished." The case Boatwright vs. State, 38 S.W. (26) 87, defines a lottery ast "Any scheme for distributionof prizes by &an&." The case of Griffith Amusement Co. vs. Morgan, 98 S.W. (26) 844, holds the elements essential to consltute a lottery are us prize In money or other thing of value, its distributionby chance in payment, either directly or indirectly, of a valuable considerationfor the chance to win the prlse. The case of State vs. Randle, supra, holds that any scheme for the distributionof prizes by chance Is lottery and It matters not by what name such a scheme may be knovn. It comes within the prohibition of Article 654 of the Penal Code. Eon. Jack Borden, Page 4 J!nthe case of City of Wink vs. Griffith Amusement do,,. 100 SW (L'd)695, the court saXd that the necessary elements of mea "Offering of a prize, award or prize by chanae, and giving of considerationfor opportunitiesto win prize:" The above mentioned requirementthat the winner appear uu~cIaIm tha prize vlthln threc. (3), minutes from the time hl6 name la announced at the theatre, undoubtedly operat\esas a trea mondouspressure on any one desiring to paxticIpate,topay the prlc of admission. That Is undoubtedly the purpose, and It Is aquaf Iy obvious that the award is made out of funds accumulated. from-paidadmissions..In short,?the plan Is a violation of Art.14 ale 654 of the Penal Code. In view of the foregoing authoritiesyou are respectfully adifsed that it Is the opinion of this department that the above nentlonedscheme or plan whereby a sheatre buys the fingerprints of a.cItleen of the community as above outlined is a violation of Article,654 of the Penal Code. Trusting that we have satisfactorilyanswered your inquiry,ve remain Yours very tNly ATTORNRYGRNEiRAL OFmS BY /i/ A~rdellWIllIams Approved: Opinion CommIttee by BWB, Chairman