Honorable W. J, Townsend
County Attorney
Angclina County
Lufkln. Texas

Dear Sk:                             Opinion No. O-6007

                                     Re:    Does the scheme for the dls-
                                           positlon of an automobile by
                                            chance where tickets are aold
                                            for $1.00 each, constitute a
                                            lottery? Ia a lottery aLgame
                                           that the State 1s authorixed to
                                           suppress by. injunction under
                                           Article 4667, Revised Civil
                                           Statutes?

        Your reqwet for an opinion relative to conductlng a lottery haa
been received and car,efully considered by this department. We quote
portlona of your letter as followa:

         ‘I begleave to advise that a group of clttzena of this county.
  in an effort to raim rome money for a benevolent purpose, are
  seeking to dispose of an lutomobU8 by means of a lottery ln aelllng
  tickets for a drawlng. Thr lucky number is to receive the automo-
  bile. The tickete for the drawtng sell for approxtmately $1.00 each,
  which ticket so purchased entitles the holder thereof one chance at
  said drawing or lottery.   I have advised these promoters of this
  scheme that the ram. Ls unlawful, but apparently they do not agree
  with my conatructioa of the law. Hence, I am nubmltting the matter
  to you asking your oplnlon governlug the facta.

           “* * *

           ‘Please   give me your optnion on these questlona:
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Honorable   W. J. Townsend,      Page   2, O-6887




         ‘1. Is the scheme for the disposition  of an automobile   by
  chance, where tickets are sold for $1.00 a piece, entitling the
  holder thereof of a chance for the possession   of the automobile
  at a drawing to be held later a lottery?

         ‘2. Are    those conducting the lottery, as well as those
  selling tickets   therefor, criminally Hable for conducting a lot-
  kry 7

         ‘3. In addition to the criminal  prosecution  of those conduct-
  ing a~lottery. csn an injunction sutt be lawfully brought to enjoin
  the conducttng of said lottery, if any?

         ‘4. Can a suit be brought dtrect for the confiscation       of the
  automobtle as can be done for the confiscation       of fixtures used in
  a gambling hall?     In other words, can a confiscation      suit be brought
  for the confiscation  of the automobile    which is being used for an
  unlawful purpose, to-wit:    the dtspositlon   of the same by chance
  or lottery 7”

         Section 47 of Article    III of the Constitution    of Texas    reads    as fol-
lows:

          ‘The Legislature   shall pass laws prohibi.ting the eskblish-
  ment of lotteries   and gift enterprises    ln this State, as well as the
  sale of ttckets In lotkries,   gift enterprises    or other evasions ln-
  volvlng the lottery principle,    establlshed   or existing, in other,
  states.”

         Under the above mandate        the Legislature     passed   Article     654,
Penal   Code of the State of Texas,     providing   that:

         “If any person shall establish   a lottery or dispose of any
  estate, real or pers,onal, by lottery, he shall be fined not less
  than One Hundred ($100) Dollars      nor more than One Thousand
  ($1.000) Dollars;   or if any psrson shall sell, offer for sale or
  keep for sale any tickets or part tickets in any lottery, he shall
  be fined not less than Ten ($lO).Dollars      nor more than Fifty
  ($50) Dollars.”
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      Honorable      W. J. Townsend,     Page   3, O-6887




               The Court of Crlmlnal  Appeals   held in the case of Cole vs. State,
      112 S. W. 2d 725, that such a scheme as you describe      in your letter is in
      violattoa of the article quokd above.   In this case Judge Hawkins had this
      to say and we quote from his opinion as follows:

                   -There   is not now, nor ever has been, an attempt in this state
           to define by sktuk      what constitutes a lottery.       The term is defined
           by the statutes of only a few of the states.         Corpus Juris, vol. 38,
           p. 288, note 10, lists only four, but says ‘that such definitions seldom
           vary in substance from those established           by the courts.’   Having no
           definition in our sktuk.       we must resort to the meaning given the
           krm by popular usage as determined            by the vartoua courts.     When
           that is done, lt is clear that three things must concur to establish
           a thing as a lottery:      (a) A prize or prizes;      (b) the award or distribu-
           tion of the prise or prizes by chance;         (c) the payment etther directly
           or tndtrectly by the partktpants        of a consideration    for the right or
           privilege   of participating.    Texas Jur ., vol. 28, p. 409. § 2, deduces
           from pur own cases the rule stated, and Lt appears            that in every case
           from our own court where a scheme has been denounced as a lottery
           that the three elements mentIoned are shown by the facts to have been
           present.    See Randle v. Skte. 42 Tex. 580; Grant v. State, 54 Tax. Cr.
           R. 403, 112 S. W. 1068; 21 L.R.A.,         N. S.. 876, 130 Am. St. Rep. 897,
           16 Ann. Css. 844; Prendcrgsst         v. State, 41 Tex. Cr. R. 358, 57 S.W.
           850; Holeman v. Skte, 2 Tex. App. 610, 28 Am. Rep. 439, and other
           Texas cases cikd in Texas Jur.. suprs.            The same rule demanding
           the presence    of the three elements      named will be found stated Ln 17
           Ruling Case Law, p. 1222, and 38 Corpus Juris, p. 286, with Lnnumer-
           able supporting cases clkd under the text in each of said volumes.”

              Also see Smith vs. State, 127 S. W. 2d 297; City of Wink vs. Grifftth
      Amusement    Go., 1002 S.W. 2d 695; and Robb & Rowley United v. State, 127
      S. W. 2d 221.

               The scheme or plan, as described     in your latter, apparently  is in
      violation of Article 654, Penal Code of Texas, in that all three of the ele-
      ments necessary to constltuk     s lottery are present.    Each person psrtici-
      eating ln the schema is required    to purchase a ticket for the drawing.    The
      tickets are priced st one dollar ($1.00) each.     The purchase of a ticket 1s
      a consldsrstlon   for s person to participate  in the drawing.  All persons
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Honorable     W. J. Townsend,   Page   4, O-6887




holding tickets will not partictpak    I.n the prize since the prize will be
awarded to the holder of the ticket that corresponds      to the one that ts
drawn and this fact establishes    the element of chance.     The automobile
is the prize that is awarded the holder of the lucky ticket.

         As to whether or not those conductl.ng the lottery are equally
guilty tn the commission    of the offense as well as those selling the lot-
tery tickets, the following articles   of the Pen,al Code of Texas are quoted:

           “Article  65. All persons are principals   who are   guilty of
  acting    together in the commisston  of an offense.”

         ‘Artkle   66. When sn offense is actually committed by one or
  more persons,    but others are present.   and knowing the unlawful Ln-
  tent, aid by sets or encourage    by words or gestures,   those actually
  engaged In the commission     of the unltiwful act, or who. not being sc-
  tually present, keep watch so as to prevent the inkrruptton      of those
  engagCd in commlttlng the offense, such persons       so atding, encoursg-
  ing or.keeplag  watch are prtnctpal offenders.”

         ‘Article 67. All persons who shall engage in procurtng      aid,
  arms or means of sny kind to assist In the commission       of sn offense,
  while others are executing the u.nlawful act, and all persons who en-
  deavor at the time of the commissLon     of the offense to secure the
  safety or concealment   of the offenders  are principals.”

         ‘Article  69. Any person who advises or sprees to the com-
  mission of sn offense and who is present when the same is commlt-
  ted is a principal whether he aided or not In the tlle&l~act.”

         In view of the above statutes, there can be no doubt as to the guilt
of the persons conducting the lottery.   The persons    responsible   for the
scheme, purchsslng    the automobUe,   having the tickets printed, distrtbutlng
the tickets to other persons for sale and actually conducting the drawing are
princtpal offenders in the commlsslon    of the offense as well as persons
selling the tickets, and are amenable   to prosecutton   for the violation of
Article  654, Penal Code of Texas.    From Texas JurLsprudence,       Vol. 12,
page 334, we quota:

        .If parties have a common intent or previously  formed design
  to commit an offense and act together in the commission   of the same,
Honorable   W. J. Townsend,    Page   5. O-6887




  they are and must be principals,       and equally so whether the act of the
  coprincipal   brings him under one or the other of the various methods
  specified   in the code whereby one may become a principal.          A person
  who commits an offense while acting as agent for another, and with
  knowledge of the latter’s     cri,minal intent, or who is present when an
  offense is committed      and assists   in its commission,  is a principal.
  Also where*       or more persons combi.ne or conspire      to commit a
  crime, all who are acting together and doing their parts in the execu-
  tion of the common design at the time when the offense is committed
  are principals,    whether they are actually present at the time and place
  of its commission      or not; and all continue to be principals    as long as
  any portion of the object of the common design remains           incomplete,
  or, in other words, until the full purpose and object of the conspiracy
  is consummated       and accomplished.”

         We now pass to your third question which is, “Can an injunction suit
be lawfully brought to enjoin the conducting of said lottery, if any?”    This
identical question was brought before the court in the cases of State vs. Robb
& Rowley United, 118 S. W. 2d 917, and Robb & Rowley United, Inc., et al vs.
Skk,    127 S.~W. 2d 221. In both of these cases it was held that lotteries   are
a species of gaming and nuisances which the State is authorized to suppress
by injunction under Art. 4667, Revised Civil Statutes.

        In dealing with your fourth question,     we turn to Article   636, Penal
Code of Texas, which we quote:

         ‘It shall be the duty of every sheriff, or other peace officer by
  virtue of the warrant    authorized by this chapter to seize and take into
  his possession    all gaming tables, devices and other equipments    or
  paraphernalia    of gambling houses, the existence   of which has come to
  his knowledge and to immediately     file with the justice of the peace,
  county judge, or district judge, a wri.tten list of the property      seized
  designating  the place where same was seized, and the owner of same,
  or the person from whom p,ossession was taken.         Thereupon     said jus-
  tice of the peace, county or district judge shall note the same upon his
  docket and ksue, or cause the clerk of the court to issue a written
  notice to the owner or person in whose possession        the articles    seized
  were found, commandlng     him to appear at a designated      time, not earlier
  than five days from the service    of such notice, and show cake why such
  articles  should not be destroyed.    If personal service cannot be had upon
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Honorable   W. J. Townsend,     Page    6, O-61387




  the person to whom sams Is directed,     a copy of said notice shall be
  posted for not less than five days, either upon the court house door
  of the county where the proceedings    are begun or upon the building
  or premises   from which the property seized was taken.”

         We are of the opinion that the automobile,   which is the prize to be
awarded,   is not property subject to confiscation  under the provisions   of the
above article.   In support of our contention, you are referred   to Hightower
v. State, 156 S. W. 2d 327; Davis v. State, 165 S. W. 2d 757; and Collison
v. State, 146 S. W. 2d 460.

                                                                                       ,
         Trusting   the foregoing   answers   your inquiries.    we are


                                                     Yours   very   truly

                                                ATTORNEY         GENERAL    OF TEXAS




                                                         Louts    w. Woosley
                                                                  Assistant




ATTORNEY      GE‘NERAL

LWW:IJ                                          APPROVED
                                                 OPINION
