           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
