OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
monorable aDbert 0. cherry
County Attorney,
&osqlle county,
meridian, Texas
aUdresseU ie Attmmey
it a ~lolatioa of the law ior
ts of a &Tell WM or commm-
e to their custiere ticgets
pumhaseef~mhmadiee from
ch ticlrots are gOOd for ahaaQBr3
or money given asay et
riodlcpa;tlyIn the saM
wtns QF 4%6lmm%tyt"
*It is the opin%on of the vriter that aZ1 ma&
a&erfst&q mhemee, +a tdxeone Ueocrlbed by fM8.
qrxestlon, are ~lat&ens of ~the lottsry lam ,9? bJ)e
8ti&q. .%'heCounty Attorney*sbrfsf QB the q6e@b
Is as fellorea
*xtmuluw4m tbatthepraperplaae tieaeapI
Hon. nubcrt k’. Cherry - page 2
an analysis Of tbla question would be the Constltu-
tlon of foxas, which in Art, 3, Sot. 47 states as
f0110*0: rllhe Legislature shall paam lawm prohlblt-
lng the ef+ablimkxnolt of lotteries and gfft euter-
prlses In thin State, as veil as the male or ti~okmts
in lotterleg gist enterprises or other evamlonm ln-
mlriag the lot* principle. establishedor mxlet-
lng In other 6tatea' (Vornon'a Annotated conetitu-
tlon, ArLrt. 3, sea 47). In oonmtrulag this article,
th0 Supraae Court Or Texas has held in City of Wlnk
7. Orlffltb bmusewtlt co., 3OC S. W. (ed) 666, that
thl~pxvrla.lon mamaotlntended to condQmmerely
Zotterlem, but was &tenUed mlso to condtxmm the mep-
arately ltatmd mahenem which mere wt lotteries but
rhlch imolred tbe lottery prlncrlple or chmnoe and
rhlch were used W entiae the oredtilous and unwary.
~Artlche 654 and658 of the Peual Coderefer
to *lottery* and *raffles* and were mpparently paes-
ed by the Leglalature in obedlenoe to Art. 3, Sec.47
of the Constitution as above referred to snd protides
am follm~~ Art. 6~4. *If any person shall establish
a lottery or diepose of any estate, real or perm0naJ-
by lottery, he shall be fined not lemm than One hw--
dred nor wre thau one th~uaand dollars; or If fray
permoa mhall mall, offer for sale or keep for male
any ticket or part ticket In any lottery, he ahall be
fined not lees than ten nor nore than fll'ty dollars.
lXfnnypereon shall emtmbl1mharm#le foror dim-
poet I3y raffle oi any metate, real or personal, mx-
oeedlng five hundred dollarm In value, he mhall be
tined not less thmn one hundred nor more than one
thousand dollars; or If any person shall estahliah
a raSSle Sor or shall dimpose by raffle of may mm-
fate, real or personal, of the value ot five hcmdred
dollars or less, he shall be fined not lees thaa riva
pornwre thantvo hundred dollars. Whoever shall of-
fer fvr male or h-p for smle auy ohaaaq ticket or
part ticket, In any raffle of amy estate, rmml or per-
sonal OS muy *us vboterer shall be tied wt lemm
then ten nor wre than tiPty dollars.*
lIII ooamtmlng theme articles of the Penal Code
and the Conetltutlonol pr0rimlon above referrod to,
the courts have variaualy defined *lotteries0 and
*r~fflos* as follover
lion. Iiobcrt F. Cherry - page 3
*AIRY mcheaue for the cllstribntion of prlaea by
chanoe is a lottery, and it matters not by what nme
muc ha laheaue may be born, It mea within the pro-
hibition of this article. State v'. Randle, 41 T.202
and Rde v- State, 42 1. ti80. It la 110 lema a lot-
tery because the aehena includea no blanka If the
prices are of unequal value. Randle t. State 42 f.
-5 Iloloaan v. State, 2 Cr. R. alO. bay 8Uhwe for
the distribution of prizes is a lottery, though thore
WUWPDblW. We's guilt of eatabllahlng a lottery
does not depend on advise recclved am to the innocent
characterofthe dtxlae, nOr~nhlaombellef that
It 1pa not a riolatlon Of the lam. Qeen v. State,
s48 8. v. 3sc
*The CQWtB have diBtiq@ahed lott8rlea and
raffles by defYal.ng lottery am a gane ln which there
is a keeper or exhlblfor,‘and agalnat ahorn the bet-
ter mtmkea him money, while a raffle d.8 said to be a
gwe of perfect ahawe ln ahlch every participant Is
OWJUd With '?V8rJ Other in the pl.OpOrtiOn Of hi8 risk
azaiprospect of gsin, the raffle having no elea8nt
of km8perordealer andnotbelng abanklng gazae.
Sttanem v* State, 21 T. 69% Rlmein ~0 State, 71 S-V.
976
aThe 1-g same, relating directly t0 a gxvup
Of I!I~GhantB UBhg a plan which appprentiy iUWlve8
a 'lott8ry prLnolple' a. an advertialng 8Ch5.3, 88CmB
to be Feat&u-stone v* Indepaadent Serrloe Station Amso-
clatlonoSTexa4 lnrhich the o~ortheld that where
mm amamcimtion of dealers aold tlcketi t0 its neabmrm,
mhlch ticketa were then @maa by the dealers to cam-
tOWr8 andothera for thepurpomeof attracfingpat-
ronag8, the tickets entitling the holders to a chanoe
W rln sn aatamobile ptrrchrued by the ameoclation with
the prooeeda of the males of the tloketa, much a
mehma was held to be a lottery wlthin the meaning of
the Bt.tUt8. &d It was further held that much lof-
tery wa slubjwf W be enjoined by a 05petifor U&OBe
-8. warn Injured thereby, under the rule that
equity mill enjoin an act which awunta to a orime
where property right. are Injured thereby= Feather-
aWne T. Independent Sal-rice Station Aaaoclatlon of
Texas, (Clr. 4p.) IO 6. U. (2d) l24. 28 lox. Jur.
414.
&Ion. liobort F'. Cherry - pogc 4
lThC plan UBOd ilY IiOsqUC ~UI’Ity does Ilot re-
quire any paraon to pay dlrootly any consldcratlon
in order to obtain a chance at the drauln& but It
does do 80 indireotly in that mOrChrudi8e awst be
purchased ln order to ontitle the purchaser to the
U&et vr chwoe, and it aeaPa to this writer are
baaed upon the *lottery prinoiple' rcifXV?d to in
the conatltution and under any reaeonable conatruct-
Ion or the statutes and the opinion or the courts,
are unlawfuLm
Xou hare tborOUf@y beefed the question BUbZIitted,
for ahlch ae espf?ma our apprOCiatiOn* After oarefully eon-
miwlerlng it, we hare concluded there la no neoemalty for any
further ~~BCUBB~OII of the subject. It iB Our O'piniGn that
you hare correotl7 mnmwermd the question In the affirmative.
Verytrulypura
ATTCRRlUllrP
GRRERAL OF TEXAS
Bruce W. Bryant
0
Aaalatant
APPROVED
OPINION
BUB=XR cOMMlY-TEE
BY c**I"Y*
.d%w
APPROVEI‘AUO 10, 1939