   OFFICE   OF THE A’ITORNEY       GENERAL     OF TEXAS
                          AUSTIN




Xonorablr Andrew Patton
Dlrtriot  Attorney
Dallar County
Dallas,  Tex.rr




                                              ottary   rtatutrr


                                             pt o? your raquert
                                             ctor I. Q.” rrdlo
                                             work oaoh work I#


                                     our appreolatlon     r0r
                                    ml your brief    which ooaply
                                     6399, Ravirod Clril       Stat-
                                    09 th8 brhr     rubalttrdr
                             eraa 18 prsasntrd
                          weak ror a half hour
                    mmroial  rponror.  Thr pro-
                    mm a motion plcturr

                   an intsrd8alon        bstaaaa    plo-


     phono hr mlvlner tho red10 and pioture
     rhori sudienor that ho ha8 rav8ral asmlr-
     tant8,  raoh with a portable microphoar,
     aaong thr aaabarm of ths audionor.    Thr
Honorobls    Andrrw Patton,   pagr 2


     announoar reqursts    ona of his aseIstants
     to ohoose a momber of the and irnor who
     is wIllIng to answar a question sbout to
     br propounded.    Thr announoar than pro-
     pounds the q ues    tioln,
                              :vIsI~     the Farson
     ohosw that If he oan answsr thr question
     hs will br paid a stated      stim of nonry.   In
     the OVOBt tho correct OB8W.r ir &iV@B, ths
     monry Is tbsrr paid to tha mombrr.or tha
     audlrnoa who thus assisted       In the vmrk,
     and thr asslrrtant announcaT8 peas on
     through the audlrnor ohooslng othar got:;
     with whom tha proaass Is rrpeatrtl.
     emnt that ths parson chosen oannot andwar
     thr question,   or glvrs the wrong answar, thr
     asslstant   announoIr, nrvarthalrss,      ooopan-
     satre him for his efforts      by presenting
     him with 6 box of acrohandlsa       on behalf
     or the sponsor of tho program,
            “As an Illustration oi the questions
     aotuslly   propounds&, soaa that have brsn
     used arm:
          nlzbo won thr 1939 National       League
     pennant?’
           WgIs It poealbla     to make fresh   wator
      out of salt water?’
             “‘In 19lf,, In what nation   was thr
      olty   OS Wsrsaw?*
             wFor the oorreot   answer to thr first
      quastion,   $9.00 ms p&Id: for the sroond
       uastlon $5.00; an4 for ths third quertlon
      %8.00.    In tha avant th:t any on8 of ths
      questiona was not answerrd correctly,       tha
      sponeorr gsta the person who bad voluntrcrrd
      to trr to answrr the question      a box of mer-
      ohandls a. Therr ir BO Oontrst b&wean the
      various menbars of the SUdIsBO6, 8imr if
      tha first   person chosen do68 not prO94rly
      answsr the quartion,     ths annoUnoar on thr
      eta&o advises    all of t&r ludianor what tha
      oorrsot amwcr Is, and an rntiralf       blrrer-
      ent qutstion    IS presantrd   to the nart par-
Honorable   Andrew Patton,      poet      3


     son who volunteers.     The mnbera of the
     audIen    who volunteer   to try to answer
     tho qurstlons   propounded, rcaeln at their
     plaoes In tho thsatre    and &peak through a
     portable mlorophone.
            “?I0 maaber of the audlanoo 18 oom-
     pellet5 or ureed to pertloipata,   but an7
     member of the audlenoe who wishes to do so
     mar havs an opportunity    to try to answer a
     QUeZItiOB.
            *In afldltlon    to that portion of the
     program hereinabove        outlined,     awards are
     m&e by those who present the show to For-
     sells who rend In questIons          that ara ohvam
     for propoutilng i      and  other    awards  ara nade
     to those mezibers of the audionot who can
     oorrectlf      answer a list     of questIons whioh
     the announcer stater.          Eaah member Of the
     audionor has a tally        oar6 upon Hhloh ha MI
     cheek as right or wrong each rtate~ont
     included In this list.          Usually,    th6re are
     niar or tan such statomante,            such as: ‘A
     latohet    Is a shoostrIng.      * Zvarjr member
     of the azlenoe        has an equal opportunity        to
     answer th e puostlona,        an6 laoh of those who
     oorreotly      answer 811 of the puestlons         Is
     peld an equal srmunt for his contribution
     Of his talmt        to the cvenl~e'e      entertaln-
     aent.     There Is no drawing, no ‘luoky BUa-
     born, nor price,       to be droI4ed by lot,
     luok or chance.        Instaad,    each person who
     p3rtlcipetes       Is paid for tls partlolpatlon
      In Qlreot proportion        to the value 0s his
     servlors.    -
          t3ootion    17   0s   Artlole       III   or the Constitution
or Texas reads:
             “The Legislature    shall pass laws
      prohibiting   the rstablishment      Of lot-
      teries   and girt anterprIses      In thls
      state,   es well as the sale of tickets
      In lotteries,    gift enterprises     or othsr
      ava6Iona Involving      the lottery    prinol-
      pal, establlehed     or exIstlng,    in other
      etatos.m
Honorable     Andrew Patton, pa(3e 4


               FUrWant to 6uOh command the LsgIslature
pasasd     Artlols 634 of the Fens1 Code, whioh reads
48 r0iim8r

             *If any parson shall estsblIah      a
     lottart    or dIsposa 0s any estate,     real
     or personal,    by lottery,   ha shall be
     flnad not lese than One Hundred ($100)
     Doll4r8 nor more than One ThouBand
      ($1,000) Dollars;    or If sny parson
     shall mall, offer for sale or keep
     for sala snr tIokets      or part tIoketr
     in sky lottery     he shell be fined not
     less than TOB t 10) Dollars nor more
     than Fifty (850 ! Dollare.”
              in   City   or   Kink v6. crirrith A!nunure~eBt
                                                            coin-
pan7, 100 9. K. (26)           695, (Ter. Sup. Ct.), the oourt
said:

               "The State Penal Code does not da-
         fin0 8 lottsrr, but our oourts have
         interpreted  it in aocordanoe with pub-
         110 usage,
                 to mean 8 schsme or plan
     xhioh pro~Iaes   for a dIstrlbutlon of
     crItes bf or&not among those who have
     paid, Or agreed to pay, a oOn1idaratioB
     for the right  to pertlolpate   theraon. 28
     Tax. Jur. p. 409, 880. 2, and oases olted
     in the Betas.*
          Tha Federal Ciroult Court of Ap eala in the
oase of Paek vs. United States,  61 F. (2d 7 973. ha8
given the r0ii0wi~   dafInItIon 0s a lottery:

               *A schema for tha dIatrIbutIon   0s
         prizes or thInp,s of value by lot or
         ohanoe among persons who hsve paid or
         agree to pay a valuable   oonsIder~tion for
         the ohanca to obtain a prize.     And again:
         A sohwne by ?&Ioh I raeult Is reaohsd by
         some aotlon or means takan, iB whloh re-
         sult man’s oholce or till   har no pert,
         nor can human reason,   . . . sagacity   or
         design ensble him to know or detsrmIne
         . . . until the same has barn aoacrnplished.W
Eonorabla   Andrew bttOB   , ps~a 5


             Vndtr your statamant Of the fact8 48 quoted
by us, two of the elements of a lottery       are clearly
dlsaernlbla,    1. a., a prlra In money or thing or
vslua, end papsat      0s a ooBr.ideration for tb ohanoa
to partlolpats    In the pro&yam through attendance     et
the theatra,    paying SB admIssIoB price therefor.
?:hether the llament of chance Is 8uffIoItntly      est4b-
lIshed Is a more perplexing     problem ,
            In the 0080 0s Boatwright v. state,      ii8
Tex. Cr. R. 381, 3e 8. w. (24) 87, the Court or
Criminal Appeals held that a punoh board wherein were
pleoad different    checker problems, the earns to be oom-
pleted by the. pertlclpent efter paying a Set for the
prIvIlege   of playlw,    did not constitute  a lottery,
even though prlzes were awarded those working out the
best solution.     We quota from the oplnlorrr
            *An;7 sohame for the di8trIbUtIOB
     ~of prizes by ohanoa, under our etatuta,
      Is a 1otterJ.     paaen v. State,  93 Tex.
      Cr. R. 173,    246 5. F. pl,; Stawer   v.
     State,   107 Tex. Cr. R. 574, 298 S. K. 906.
     The phrase ‘earns of oh4Bca’ Is defInad In
     27 Corpus Jurls at page 968, as SollOws:
     *It Is a earns detrrmInad entirely or In
     psrt   by lot or mere luck, and In which
     judgment, praotlce,    skill  or adroitness
     have honestly   no orrioe et all,   or are
     thwertad by ohanoe; a gas8 In ahloh
     haaard entirely   predomInatss. @
             %Ithout approving In Its entirety
     the foregoing     dafInItIon    when oonsIdared
     In oonneotlon with our statute         denounolng
     lotteries,     It Is observed that the success
     of the player In the earna under considera-
     tion dapends upon praotlca,        lr p er Ia n0e,
     or skill,      Other than the ordinary ohenoa
     or oontInC.cnor which is Involved iB prac-
     tically    every humen endeavor, the element
     or chance Is not prdent,          Tha prize Is
     drawn ae a rerrard for the skill        of the
     91 awl     and  not br  ohrnoe.    The  prsdomlnant
     llaaent In the game Is one of skill.          . .I
                                                                              .

                                                                        iwo

Eonorablr        Androw Patton,    psgr 6


                 SOI also   MoFsr i.   Statr,     46 Tax. Cr. R.
489, 81 9. 1. 741; Roit v,. Dally               Craphlo, 230 H. Y.
s. 360, 103 A. L. R. 870.
          Fros a oarrful  study 0r tbr 6rolrlonr   aa
lqlied      to
           thr faOt8 prsaantrd by you, we oorxludr
that the m6lo program doer not rlolatr   thr lottery
law oi thlr Stat@.
            Trutatlng that        we ham aetlsfaOtOrl1~       anewerd
your lquiry,      we are,
                                            Yours v6ry    truly
                                       A




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