Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY’GENERAL OF TEXAS AUSTIN Honorable Zcnfro speed county P.ttoriley Freestons County Fairfield, Texas Dear Sir: Thank you for letter of Novenber 14, partwnt as to,whethor stitutes a lottery and Fenal Codo of this vi&5 a fund names on a book or is designntwl as s :r;ovieoritiot is t,hen it is his duty to attonil Texas reads: The Legislators shall ~~lsslnws prohib- ltinx the ootnblisho.ontof lottccias and gift cntorprisos in this state, as ~011 as tho sale of tiokets in lot”,erios,elft ontoryriscs or Honorable Renfro Speed, Page 2 other evasions,Involving the lottery principal, astablished or existing, in other statesaw Pursuant to such Oomand the Legislature passed Article 654 of the Tenal Code, which reads as follovrs: *It any person shall establish a lottery or dispose of any estate, real or.personal, by lottery, he shall be fined not less than Cne Hundred ($100) Dollars nor olore than One Thou- sand ($1000) Dollars; or if any person shall sell, offer for sale or keep for sale any tick- ets or part tickets in any lottery, h8 shall be fined not less than Ten (ala) I)ollarsnor mre than Fifty ($50) Dollars." In City of Wink vs. Griffith Amusenient.Company, 100 9. w. (26) 695, (Tex. sup. Ct.), the OoUrt said: "The,State Penal Code does not define a lottery, but our courts have interpreted it in aooordanoe with publio usage, to mean a sohen;a ox plan which provides for a distribution of . prizes by ohance among those !vho have paid, or agreed to pay, a consideration for the right to participate therein, 28 Tex. Jur, p. 409, Sea. 2, and cases oltod in the notes,” This departffient has on several oocasions passed on the question of what constitutes a lottery, holding in (1) Opinion .O-428 to Honorablo Clint A. Earha& County Attorney, Rmth County, dated April 26, 1939, that a number system used by a theatre where each scat in the theatre is numbered and a ticket is seleotea or drawn from a number of tickets containins all the nuaiberson the seats and a money'award or other thing of value is given to the person sitting in the seat that has a cor- responding nuruberwith the number drawn is a "lot- tory" end the operation thereof is a violstion of Article 654 of the Fens1 Code. (2) Opinion Q-967 to Honorable T0i'mSeay, County Attorney, Totter County, dated June 14, 1939, that a scheme vihereby, in Gubstnnce, a theatre owner gives a prize to soI;;patron of ‘.* Honorable Renfro Speed, Page 3 .x?oz the thsatre present after a drawing fron which .soffie patron’s automobile license number may be selected, under the Saats presented, constitutes a violation of the lottery laws of this state. (3) Opinion O-1174 to Ronorable Robert S. Cherr/i County .ittorney,Rosque County, dated August 10, 1939, that it is a violation of the law for the prchants of a given town or com- munity to give their customers tickets with each purchsse of merchandise from them, vrhich tickets are good for chances upon merchandise or money given away at drawings, held.periodiaally in the said town or ~cormunity. (4) Opinion O-1200 to Ronorable Pobert a. Peden, Jr., County Attorney, hatagorda County, dated August 12, 1939, that the “Aces quiz Right” OS1 scheme or plan (under the facts stated to ‘this offioe) is a “lottery” and in violation of hr- tiClo 634 of the Penal Code of this state, (5) Opinion O-1329 to Honorable Jack Borden, County Attorney, Parker County, dated ileptomber . 8, 1939, that a scheme whereby, in substanae, a theatre buys the fingerprints of a GitiZ8n of the community by selection of one fingerprint from the files of the theatrs, is a violation of the lottery laws of this s’tate. : li3 (6) Opin.ionO-1336 to Honorable Taul TV. Halt, County Attorney, Travis County, dated Sep- tember 18, 1939, that a scheme whereby, in sub- statice,a "suit club” gives credits in trade to winning contestants for completing a sentence,, etc., constitutes a violation of the lottery laws of this state. In the case of Griffith Amusement Company 98, RorCan, 98 2. iYe (2d) 844, it was held that the ele-. ments esGentia1 to oonstitutc a lottary are (1) a prize in money or thing of value, (2) distribution by chance and (3) payment, eitker directly or indirectly, of a valuable consideration for the chance to win the prize, See also City of Wink vs. Griffith Amusement Company, oupra; Feathar- stone vs. Independent Service Station Association, 10 :. ?i. (26) 124; ?eak vs. United States, 61 Pod. (2d) 973; Grant vs. . Honorable RenSro Spaed, Pa&e 4 The State, 112 S. W. 1068. In State vs. Randall;41 Tex. 296, and Holman vs. The State, 47 3.,X’.850, It was held that any acheme for the distribution of prizes by chance is a lottery. Aocordiogly, the “Rank Night*Vscheme (City of Wink VS. Griffith Amusement Company, oupra), the “Buck Night *Isohe.me (Robb and Rowley, et al vs. The State, 127 S. W. (26) 221), and the “koah’s Ark” soheme (Smith vs. The state, 127 9. IV. (2d) 297) have all been held to be lotteries. ?{a believe that the essential elements of a lot- tery are presented by the facto set forth in your letter. The theatre provides a fund or &; a drawin is made and the chanc,eelement occurs. Eoreover, the patron must be presm the theatre When his neme is drawn in order to be.designated “movie oritio*’ (and so indireotly furnishes oonslderation for the chance. See City of wink vs. Griffith Amusement Company, supra), and, thereby becomes eligible for the “Golden l;“leece’* # namely,~passes to the movies and a cash a?vard. , It may be contended by some that the theatre op- erator has conceived an effective escape from the ,lottery laws by providing that the person designated “movie critic*? must aotucillp attend the pictures and must actually criti- Giz:o,for %hich criticism he will be paid the grand a-:;ard in oa8h. ‘&.‘a db not believe ,tho Legislature intended to en- act a statute which might be evaded by such subterfuge, and this department has heretofore ruled adversely to similar GOntSntiOnS. In Opinion 0-132~9,dated September 7, 1939, the theatre operator sought to sidestep the lottery principal by npurchasing” the Singorprinc OS the winning patron, yet under the part.icularfaots the scheme,was held to constitute a lottery, .,Likeu;lse, in opinion O-1336 of this department, dated Bptember 10, 1939, in which a “suit club” was held to constitute a lottery, the fact that contestant was corn-. pelled to write a twenty-five word statement telling why he liked the brand of clothes in question availed the proprie- tor nothing in escaping the condeainationof Article 654 of the Penal Code. Consequently, it is the’dpinion of this depart- ment, and you are respaotfully advised, that a thoatre opera- ., tar conduoting the scheme set forth in your letter would be Eonorable lW.Cro Speed, fjage5 guilty of operating a lottery a8 prohibited by Article 654 of the Penal coae of Texas,,1925, Very truly yours ATTORNSY GEXGAL OF .T%IAS * APPROVEDNOV 21, 1939 xLf-LA4.M ATTORNEY GXNERAL OB'TEXAS .’ .