                     T.HEA~ORNEY                       GENERAL

                                     OF     TEXAS

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     Honorable Holvey Villlemn                  Opinion Bo. O-2309
     Criminal District Attorney                 Re: Whether or not prise scheme of
     Waco, Taxes                                     theetre constitutes a lottery.

     Deer Slrr

                 Thin will eckooa&dge receipt of$hnr       letter of April 30, 1940,
     requ&ting an opinion of-thir     department ee to whether or not a prize
     a&em ,of e loeal~heatre,     siriler   to the,"Pot  of Guld" radio program,
!.   conatltutar   e lottery mch,se ia mede un%wfulby         Article   654 of the
     penal CodB. The p~ia~dercr1bed~l.u        your letter.,86    eolJ.owe~

             ‘~ ‘The local showo'propoee to have a wheelahich     they rpln and
     it will etop -'a   certain number which all1 Indicate a certain page In
     our local city directorJI, and they will again spin the wheel aad it wtll
     stop et a certain lw     on said page, and the naae ep+earing on that line
     will receive e ,ceeh prim.    The theeter~aill   attempt to call the number
     and eleo will announce the name from a loud apeeker et their theater                  :
     here In Yaco, eeid annouqcement to be heard on the down town city streets,
     end If the party receZving the phone cell ie~at home or hear6 the announce-
     ment over the loud speaker, he Is entitled     to receive the prize.  It la
     not neceeeery for thcrecelver    of the prize to have purchaned a ticket
     at any of the theetere."

                 ~Sectiox~47 ef-Article   III   of the Conetitutlon   of Texan ,madsa

                 'Tha~Iag1nlatum~shal.l        paea Lava prohibiting   the eetebliahment
     of lotterle#'and     gift entsrprlres      in thlo State, as well ea the rale
     of tickets    In lotterier,~gift      enterprinee   or other evaalone Involving
     the lottery principle,       clltabliahed   or existing,   in other atetes.'

               Purnuent to much command, the Leglalsture          peeeed ATticle654
     of the~Pena1 Code,~whlch reada ae followaI
          ;,:g    ~:*If q-perron~ehall     eetablleh:a~ lotteryo~~dlspime      of any
     eetete;'real      M pcr&uml, bf lottery,       he,rhs&l be finad aot.lelle than
     One Hnndrad ($lOO)~Dollarm'no~nore          than One Thoumnd ($1,000)Dollare~
     or if iny pereon #hell Bell, offer for eale or;keep for sale any ticket8
     or pert tickets       in any lottery,  he shall be fined not lean thau Ten ($10)
     Dollere nor more then Fifty ($50) Dollars."

                In Cole vs. State (Ct. of Cr. App. 1937), 112 6. W. (26) 725,
     the concurring opinion of Judge Eawkina etatee that8
Honorable Holvey Williams,     page 2 (O-2309)



              “There is not now, nor ever has been, an attempt in this state
to define by statute what constitute0         e lottery.     The term is defined
by the statutes of only e few of the states.             Corpus Jurie, vol. 38,
p. 288, note 10, llatr only four, but reya ‘that ouch deflnitionr              zeldom
vary in rubatanco from tho.ee eatebllrhed        by the courta. 1 Ezving no defl-
nltlon In our Itatute,      we murt reaort to the meaning given the term by
popular usage an determined by the varlouz courtr.             When that lr done,
it lr cleer that three thlngr muat concur to errtablllh a thing 81 a lot-
teryr     (a)   A prize or prizes;    (2) the evard or diatrlbutlon      of the prize
or prizee by chance; (c) the payment either directly            or indirectly   by
the perticipantr      of e coneideretlon   for the right or privilege       of perti-
clpeting.      Texea Jur., vol. 28, p. 409, Q 2, deduces from our own ceaea
tQe rule eteted, end it appears that in every case from our own court
w&are a scheme has been denounced 88 a lottery that the three elements
mentioned are ahown by the fecte to have been present.              See Rendle v.
State, 42 Tex. 580; Grant v. State, 54 Tex. Cr. R. 403, ll2 S. W. 1068,
21 L. R. A., Iy. S., 876, 130 Am. St. Rep. 897, 16 Ann. Cee. 8441 Prender-
gest YE. State, 41Tex.       Cr. R. 358, 57 S. Y. 850; Holomau v. State, 2
Tex. App. 610, 28 A~I; Rep. 439, and other Texee ceeea cited in Texes
Jur., zupre . The 8ame r)lle demanding the presence of the three elemente
named will be found ateted in 17 Ruling Case Law, p. 1222, and 38 Corpue
Jurie, p. 286, with innmreble          supporting ceaea cited under the text
in each of maid rolumen."

          Az atated in City of Wink VII. Qriffith        Amueement Cornpang, (Tex.
sup. ct. lg36), loo s. w. (26) 695:

            “An analysis of this provision chows that the framers of the                \
Conatltution    condemned in emphatic terma the eetabllzhment and operation
in this state of (a) ‘lotteries,’       (b) ‘gift enterprises,’    and (c) ‘other
evasions involving the lottery principle.’         Lotteries   only have been
urohlbited br the Penal Code in accordance with the constitutional           man-
&e.      tGiftVenterprisesf    and ‘other evasions involving the lottery prin-
ciple* nevertheleaa remain and stand condemned by the Con&it&ion             of
the state 88 being against public policy.         It Is hardly neceesery to
argue that the ‘Bank Hight’ plan of the defendant in error, if not e
lottery,   16 et the very leant a ‘gift enterpriee       involving the lottery
principle,   1 axd obviously an evasion of the lottery       lawa of the state.
That ‘gift enterprleez’      ere a form of lottery eveeion ia 80 well known
that courte take judicial      knowledge of the plan.      38 C. J. p. 296, §
14~ Stete v. Bader, 24 Ohio H. P. (R.S.) 186~. Moreover, ‘gift enter-
prl6es’ were well known in this state when the Constitution          of the atete
was formulated in 1875 and adopted in 1876. State VI. Rankle, 41Tex.
292; Randle VII. Stete,     42 Tex. 580. In the argument in favor of the
appellant in Randle v. State, 42 Tex. 580, qupre, distinguished           counsel
for the appellant in that case argued that ‘gift enterprises’          were so
well known ‘en almost to be judicially        proven.‘”
Honorable Holvey Williams,    page 3 (O-2309)



            It le clear rrw ypur letter that et leant txo of'the element8
emsentlal to conntltute a lottery are prone&.       A prire lrr
the recipient   of tha prize 1s Gets-8       by chance.    letheE?:lZd
ment, "the paymenteither directly     or indirectlyby the part~clpantr       of
a conrideratlon   for the right or privilege   of partlclpeting,*     alro preb
entt We bcllere    that thir element lr minrlng.

            Ho payment aither directly   or indirectly Is deaan&ed of the
recipient   by the donor of the prize) nor, from the fact! etated,do we
mee any material lndueewnt to patronize the theetre.        Each mubrcrlber
l?z the telephone  directory  haa en equal opportunity to win the prlre,
either br re~lnlng     at him telephone,  frequenting thone placea on the
street6 of the city vbere he may hear the armouncement of~the &&ulng
telephone number, or, if he derlres,     attending the theatre.   The element
of caneideretlon   16 not prerent.

           Ye do not mean to be underrrtood aa holding that the rche~
dercrlbed ln your letter does not fall within the purview of Section
47 of Article   III of the Conetltutlon.     On the contrary, we believe that
the scheme ia literally    a "gift enterprlee"     or "evr+an lnvolrlng the
lottery principle"    of the type which is condemued by the Conetltutlon.
Being c-d          by the Conetltutlon,  it is egalnmt the public policy
of the State.    If carried out by e corporation,      its practical  operation
may be found to constitute    an abuse of the corporate franchine.       city
of Wink ve. Griffith    Amueement Company, supre.      In the Penal Code, how-
ever, the Iagialature    hen seen fit to carry out the conrtitutionalman-
date only to the extent of prohibiting      lotteries,    end we hold that this
schew doe8 not constitute     a lottery.

                                                      Verytruly     youris

AppRonm MY 23, 1940                             A!rroFinEY
                                                         GBNERAL
                                                               OF TEXAS

/a/   Gerald C. lknn
                                                By   /e/   Walter R. Koch
ATTORlIEYGEHERALOFTEXAS                                    Walter R. Koch
                                                                  Aaoi~tant


                                                By   /a/   S8mee.D. +&lea
JDS/O+l                                                    J-e   D. Suu.llen


                                        APPROVED
                                        OPINION
                                       CoMHITTE&
                                       BY /I/ BWB .
                                         CHAIRMAW
