              THE      ATNDRNEY               GENERAL
                            OP~XAS
  JOAN IL.BILL          AYJWFYN. TEXAS       78711
A-~PIIOY .*m?sma‘%..

                            May   10. 1976



    The Honorable John Lawhon                Opinion No. H-820
    Dirtriat & County Attorney
    P. a. Box 44                             Re: Whether certain pro-
    Denton, Texas 76201                      cedures for selling
                                             chances to win prizes in
                                             a drawing   oonstitute   a
                                             lottery.
    Dear Mr. Lawhon:

         You have asked our opinion on the legality of several
    proposed lottery schemes designed to benefit a community
    charity. You indicate that one hundred percent of the
    proceeds will go to the charity.
         Article 3, section 47     of   the Texas Constitution provides:
              The Legislature shall pass laws prohibiting
              the establishmsnt of lotteries and gift
              enterprises in this State, as well as the
              sale of tickets in lotteries, gift enter-
              prises er other evasions involving the
              lottery princdple, established or existing
              in other states.
         The Texas Penal Code provides in part:
              Sec. 47.01.    In this chapter:
                 (1) 'Bet' means an agreement~that,:
              dependent on chance even though      .,
              accompanied by some skill, one stands
              to win or lose something of value.
               . . .




                                  p. 3461
The Honorable John Lawhon - page 2 (H-820)


            (5) 'Gambling paraphernalia' means
         any book, instrument, or apparatus by
         means of which bets have been or may
         be recorded or registered; any record,
         ticket, certificate, bill, slip, token,
         writing, scratch sheet, or other means
         of carrying on bookmaking, wagering
         pools, lotteries, numbers, policy, or
         similar games.

            (6) 'Lottery' means any scheme or pro-
         cedure whereby one or more prizes are
         distributed by chance among persons who
         have paid or promised consideration for
         a chance to win anything of value,
         whether such scheme or procedure is
         called a pool, lottery, raffle, gift,
         gift enterprise, sale, policy game, or
         some other name.

          . . . ,

         Sec.         47.02.
          (a) A person commits an offense   if   he:
            (1) makes a bet on the partial or
         final result of a game or contest or on
         the performance of a participant in a
         game or contest:
          .   .   .    .

         Sec.         47.03.
         (a) A person commits an offense if he
         intentionally or knowingly does any of
         the following acts:
          . . .
            (2) receives, records, or forwards
         a bet or offer to bet;
          .   .   .    .




                               p. 3462
The Honorable John Lawhon - page 3 (H-820)


         Sec. 47.07.
         (a) A person commits an offense if, with
         the intent to further gambling, he
         knowingly owns, manufactures, transfers
         commercially, or possesses gambling
         paraphernalia.
     A lottery has been held to consist of three elements,
      (1) a prize in money or some other thing of value
$%he    distribution of which is determined by chance a;d (3)
valuable consideration has been given by contestants
for a chance to win. City of Wink 3 Griffith Amusement Co.,
100 S.W.2d 695 (Tex. Sup. ln6);enal    Code 9 47.01(6). -
From the excerpts of the Penal Code reproduced above it is
evident that a person who participates in a lottery would
be likely to violate section 47.02 of the Penal,Code, and a
person who conducts a lottery would be likely to violate
sections 47.03 and 47.07 of the Penal Code.
     You have provided us with six separate proposals, and
it is necessary to determine whether they constitute
lotteries and are thus illegal.
     Your first proposal is to "[slell tickets to a drawing
at which some $10,000 worth of prizes will be given away."
This scheme is a classic lottery and is clearly illegal.
     The remaining proposals are to:
          2. Give tickets to a drawing, at which some
          $10,000 worth of prizes will be given away,
          to persons who make a specified donation
          to a fund to benefit the [charity].
         3. Sell admission tickets to a carnival.
         Each person who buys a carnival admission
         ticket is eligible to win a door prize.
         Winners will be determined at a drawing at
         the carnival, with some $10,000 worth of
         prizes to be given away.




                          p. 3463
The IionorableJohn Lawhon - page 4 (H-820)


         4. Sell tickets to game booths at a carnival
         at which admission is free.  Each ticket
         purchased gives the purchaser a chance to
         win a door prize. Winners will be deter-
         mined at a drawing at the carnival, with
         some $10,000 worth of prizes to be given
         away.
         5. Sell a commodity (example: box of
         candy or bumper stickers).  Each person
         who purchases the commodity is entitled
         to free admission to a carnival to benefit
         the [charity]. Each person who buys the
         commodity is also entitled to a chance to
         win a door prize at a drawing at the
         carnival, with zome $10,000 worth of
         prizes to be given away.
          6. Sell memberships to a [club organized
          on behalf of the charity]. The club will
          conduct a free drawing from its membership
          roll of prizes valued at a total of some
          $10,000.
     All proposals are identical with regard to the first
two elements of a lottery. They involve a prize which is
awarded by chance. The question is whether the five proposals
listed immediately above involve consideration given by
contestants for a chance to win. A common element in each
proposal is the payment of money for some benefit which
includes a chance in the drawing. Texas court cases and
Attorney General opinions have addressed proposals which are
virtually identical to the ones you suggest and have held
that they constitute lotteries. ,We believe proposal number
two, which distributes tickets to persons who make a "donation"
of a designated sum, is indistinguishable from the first
proposal, which involved direct sale of the tickets. With
regard to proposal three, see Attorney General Opinions
O-3031 (1941), O-2218 (194aT; O-428 (1939), all of which
involved chances for prizes available to theatre patrons.
Cf. Cit of Wink v. Griffith Amusement Co., sLy$
-+!--                                              SW;t;d
regar to proposarfour, see Hoffman Lxate,
539 (Tex. Civ. App. -- Dams   1949, no wm     which involved
patrons of a game of skill who played Bingo during inter-




                          p. 3464
The Honorable John Lawhon - page 5 (H-820)


missions with "free" Bingo cards. With regard to proposal
five, see Holoman v. State, 2 Tex. Ct. App. 610 (18771, which
involvrtm         'dfboxes of candy which contained prizes
of varying value. See also Attorney General Opinion O-1174
 (1939). With regar~oproposal    six, see Grant v. State,
112 S.W. 1068 (Tex. Grim. App. 19681, ijmchoEeauit
club whose members were eligible for weekly drawings for
tailor-made suits. In short, all six proposals constitute
lotteries and are prohibited by statute.
     We recognize that the proposals about which you inquire
are designed to raise funds for a worthy cause; however,
there is no exception to the gambling prohibitions found in
the Penal Code which would permit lotteries if conducted for
charitable purposes. The Legislature enacted such an exemption
in 1971, but it was declared to be unconstitutional in light
of article 3, section 47 of the Constitution. Tussey L
State, 494 S.W.2d 866 (Tex. Crim. App. -- 1973); Attorney
=a1     Opinion M-964 (1971).
                     SUMMARY
          The Texas Constitution and the Texas
          Penal Code ~prohibit lotteries even
          though they may be conducted for a
          charitable purpose.
                               very truly yours,



                               Attorney General of Tex&s




Opinion Committee

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