Honorable Fred T. Porter
CciuntyAttorney
Kaufman~Countg
Kaufman, Texas
Dear Sir:             Opinion NO. 0-2063
                      RE: Whether or not "Box Office Insur-
                           ance" constitutes a lottery.
        We have carefully considered the question presented
in your letter of March 7, 1940, wherein you request the
opinion of this Department as to whether or not the "BOX Qf-
flee Insurance Plan" of a local theatre constitutes a lottery
in violation of Article 654 of the Penal Code. Your letter
reads In part as follows:
        "I would illceto have   an opinion from your
    department on whether the   following plan of
    stimulating attendance at   theatres is a lottery
     under the authorities in   this state. The plan
    is as follows:
        "It is called 'Box Office Insurance' and
    a printed policy is issued to each and every
    person contacted by the management of the show
    whether a patron or not. This policy is worth
    the face value of $25.00 under certain conai-
    tions. Once a week, on a certain night select-
    ed, the managment calls for numbers to be given
    by persona in the audience. Four numbers are
    asked for, each being below 10, and these four
    numbers when arranged together form the number
    of the policy. Before the issuance of any pol-
    icy the person receiving such signs an applica-
    tion card which is numbered and put In a file.
    If the person whose application card has the
     number called out by the audience Is present
    in the theatre,he or she receives the cash
    value of the policy; but if the person is not
    in the theatre a'tthe time of the calling out
    of the number aiidname, then the name of the
    one whose application card was so numbered shall
    be prominently posted in the lobby of the theatre
    for a period of one month, and any time during
Honorable Fred T. Porter, page 2          O-2063


    the month the holder of that policy can call and
    the management will pay the amount of the policy
    to such holder. If at the end of the one month
    period, no one has called and presented such pol-
    icy, then the amount of such policy is donated by
    the theatre management to the Parent-Teachers As-
    sociation of the town or if there is no Parents
    Teachers Association then to some other like
    organization. There 'isattached'hereto a copy
    of the Policy, application card and envelope for
    further Information in regard to the plan.
         Section 47 of Article III, of the Constitution of Texas,
reads:
        "The Legislature shall pass laws prohlbit-
    ing the establishment of lotteries and gift en-
    terurisea in this state, as well as the sale of
    tickets in lotteries, gift enterprises or other
    evasions involving the lottery principal, estab-
    lished or existing, in other states."
         Article 654 of the Penal Code, reads as follows:
        "If any person shall establish a lot~tergor
    dispose of any estate, real or personal; by lot-
    tery, he shall be fined not leas than One Hundred
    ($100) Dollars nor more than One Thousand ($1,000)
    Dollars; or if any person shall sell, offer for
    sale or keep for sale any t.lcketsor part tickets
    in an lottery, he shall be fined not less than
    Ten ($10) Dollars nor more than Fifty ($50) Dollars."
        AS stated ta you in opinion No. O-1819, dated January
27 1940, the elements essential to constitute a lottery are
(1s a prize. (2) chance; (3) a consideration. City of Wink vs.
Griffith Am&ement Company (Texas~Supreme Court), 100 S. W.
tit) 695; Griffith Amusement Company vs. Morgan, 98 3. W. (26)
   . It is clear that the first two elements are present --
a prize of $25.00 is offered once a week; llkewiae, the chance
element occurs when the prize is distributed to the fortunate
"insured", if he is lucky enough to have his "policy" number
called. Our problem concerns whether or not the necessary
element of consideration is present.
        In this connection you point out that the money of-
fered may be received by two classes of prize-winners: first,
those within the.theatre who have an opportunity to witness
and participate in the proceedings; and secondly, all other
people who are not in attendance at the theatrd who have made
Honorable Fred T. Porter, page 3          0 -2063



application for a "Box Office Insurance" policy. In the event
one of the latter class of person's policy number is called,
his name will be posted in a prominent place in the lobby for
a period of one month, during which time he may call, Indenti-
fy himself and receive the prize.
          Insofar as the first class is concerned, that is, pa-
trons actually present in the theatre, there can be no doubt
that the scheme constitutes a lottery. We quote from the
language of Chief Justice Cureton, City of Wink vs. Griffith
Amusement Company, supra:
          " .. . In the instant case, there were two
    different classes of possible prize winners,
    namely, the holders of free registration num-
    bers,   who chose to remain outside of the theater,
    where neither the show nor the paraphenalia of
    and actual operation of the drawing could be
     seen, and those who, at least on 'Bank Night',
    paid the consideration required at the door, en-
    tered the theater, and saw the show, including
    the paraphernalia to be used in the drawing, and
    the actual drawing itself while comfortably seat-
    ed close at hand so that they might hear without
     fail the announcement of the winner and be pres-
    ent to claim the prize, each privilege a concomi-
    tant part of the entire scheme. It is idle to
    B,     as to whose who entered the theater and en-
    joyed    the Drivilenea named, that the admissiog
    Charge
    and advantages stated above and the Drize emolu-
    ment of the arawlniz. This admission charne is in-
    PeDareble ftiomthe Drivilenes enumerated, which
    were materlallv different from the Drlvilenes of
    those who remained outside of the theater hold-
    ins the so-called 'free' renistration numbers.
    It la ialeto say that the Dasment made for see-
    1
    -,                      in Dart at leaa;Leat;~r6!e
    for the arawi M and the chance Riven.          IUZQ
    to be seen and done in the theatre and the ~ri-
    vilenes above enumerated which accomDanied them,
    are all a Dart of one and the same show, meaning
    the entire Droceedirxs inside the theater. The
    fact that vart of the things to be enioyed br
     those who Daid at the door were classed as 'free'
    by the defendant in error does not chance the
    legal effect of the transaction, or what was ac-
    tually done by the defendant in error, namely,
    for the Drice of admission to Rrant the natron
    not only the ODDortunitr to see end hear the DiC-2
                                                                i




Honorable Fred T. Porter, page 4         0-2063



    m,    but to see and hear and enios the habill-
    ments of the 'Bsnk NiRht I, drawing, etc., detail-
    ed above. We are unable to see in what msnner
    the giving of free renlS.ration numbers to those
    outside of the theater would chanue the lenal
    effect of what was clone'inaidethe theater,*.
    which a charge was made; . . ." (Underscoring ours)
        But what of those persons who may participate "free"
by merely making a plication for a policy and whose name (if
they are fcrtunateP will.be ,losedin a prominent position in
the lobby? Does this device constitute an atteupted evasion
of the lottery laws, or is the scheme outside their purview?
1% hap been sa'Ldthat had those who conducted the famous
Louisi~anaLotterv In the early days made good their promise
to give s free ttcket to the president of each bank in the
state, still the scheme wnuld not have escaped the condemna-
tion of the laws against lotteries.
        The countless schemes of man to capitalize upon the
natural cupidity of his fellowman are legion; yet our Texas
courts have in all cases pierced the veil of subterfuge and
refused to countenance artifice. This Is the position we be-
lieve our courts will take should a case like the present
come before them. We believe that a consideration does move
to the donor of the prize in the present instant sufficient
t3 coiidemnthe plan even though participation is allowed by
non.patrona who have a month tc claim their prize. As in the
first pa.ragraphof your letter, the purpose of the plan la to
stimulate attendance, and, we suppose in aaait:on serves as
an advertising scheme. Is this not at least an indirect con-
sideration moving to the owner of the theatre? 'Webelieve so.
        As stated by Judge Graves in Cole v. State, 112 S. W.
(2d) 725, on motion for rehearing:
        I,
         . . . A consideration may consist of a
    benefit movin& to the donor of the prize renerd-
    less from whom the benefit may borne. See Corpus
    Jurls, vol. 13, p. 311. Appellant testified
    thEt he thought since eatablishiriga bank night
    that it is possible on Tuesday night it (the
    attendance) had increased some, and that the
    advertisement for his theater, he thought, was
    benefited by bank night, and, in the light of
    c'~rknowledge of human nature, we feel,sure that,
    unless such henefits had accrued?,he would not
    ha,vecontinued such bank ntghta. (Unaerscorlng
    curs)
Honorable    Fred   T. Yorter,   page 5           O-2063


        Likewise,~as stated by Chief Justice Gallagher in Robb
hnd Rowle united, Inc., ‘et al v. State (C. C. A. 1939), 127
s. w. (2af 221;
           “Appellants apparently concede .that ‘Buok’
     nights ab operaMa by them involved tile distri-
     bution of cash awards by chance, but they con-
     tend that nb conaidercition       iias received by them
     for such distribution.       Substantially      the same
     contention was made in the case of State v. Robb
     & Rowley.Uiiited,    Ihc. ;Tex.     Ciir. App., 118 9. W.
     (2d) 917, and the court,        in its opinion in that
     case, held that while no direct charge was made
     for registration,     nevertheleaa      the inoreaaed
     patronage expected by reason of the operation
     of such scheme, though only an indirect            benefit,
     was a sufficient     consideration      to warrant its
     being classified     as a lotter         See also:    Cole
     v. State, 133’Tex. Cr. R. 54r , 112 5. W; 2d.725,
             2 and j.*.City of Wink v. Griffith,         100 9.
     grq&)      695, 699, par. 12, and authorities         therie
     cl.tea i, State v: U&wan, MO. Sup., 120 S. W. (26)
     1098.
                                                           .~
          In Featherstone v. Independent Serviaii Station Associa-
ti6n, ,(C.C.A.  1928) 10 S. W. (26) 124, defendants distributed
tickets   to patrons of their service station good for a chadce
on an,automobile    to be given away. .Defendants likewise gavel
away ‘&me ticket free to those who had not purchased merchan-
dise, and the oourt said!,,
           “This testimony falls     to show any material
     ohange in the eoheme as originally          operated, but
     reveals a change simply in the plan o? its opera-
     tion.    While dealers,     under the nti plan, d&s-
     tributed     tickets  to noncustomers as well as to
     customers, .it *eems that the scheme was to dia-               ‘.
     tribute    tickets,     in the me”in to customers; as
     the evidenoe discloses       that only 8 few negligi-
     ble in number, were given to persons oiher than
     oustomers.       That the giving of tickets,      at-d the
     drawings and distribution        of prices,   were in-
     ducem6nts.to patronage and unquestionably            lured
     customers,      is shown from the very satisfactory
     business results      that followed.     Patronage thus
      induced was the consideration       that paseed from ,,
     the ticket hdlder for the chanoe received , . . . . .
         In Smith v. ‘State, (Ct. Cr. App. 1939) 127 S. W. (26)
297, defendant received a license fee from,,retail  m&chants
for the privilege  of joining a ‘%oah’a_ Ark orga?icatlon.
Honorable Fred T. Porter, page 6         Q-2063


The merchants in turn distributed cards and stamps to the
public, upon the completion of which cards a person was en-
titled to participate in a chdnce to receive a substantial
prize. The court tieldthat payment of these license fees to
defendants by the merchants operated'aa~~an~indirecttionairler-
ation for all persons who can@ to such merchants' place of
business and requested a stamp-.orcard for the purpose of
entering into this contest. '~Thecourt held this scheme to
constitute a lottery and said:
        "We think'it clearly appears herein that
    appellant received a fee from the 145 misrchanta
    and dealers who paid hitia license fee and join-
    ed his 'Noah's Ark' organization, and that the
    payment of such fee operated as a consideration
    for the entering Into the drawing contest of all
    persons who'came to such dealers' place of buai-
    netisand requested a'card or a stamp for the pur-
    pose of entering this contest. That this license
    fee was the.uasment of a consideration movinu in-
    directly from the contestant and directly to the
    auuervisor or owner of this scheme. Moving indi-
    rectly, it may be for the benefit of the contestant
    through his merchant or dealer who also received
    a benefit therefore presumably at least, in the
    advertising that he was obtaining &a well as play-
    ing upon the natural cupidity of mankind to obtaln~
    something for nothing, and this moving it completes
    the trinity of a prize arrived at by chance, and
    based upon a consideration, not only given by the
    conteatant.but received by the donor. (UM erscor-
    ing ours)
        In view of the authorities cited and for the reasons
stated, you are respectfully advised that it is the opinion
of this Department that the "Box Office Inauratice"plan under
the facts stat&3 constitutes a lottery in violation of Article
654 of the Penal Code of this State.
                                   Very truly yours
JDS :LM:wc                     ATTORNBY GENERAL OF TKXAS
APPROVED MAR 18, 1940              By s/Walter R. Kbch
s/Gerald C. Mann                             Assistant
ATTORNEY GENERAL OF TEXAS
                                   By a/J&me%.D. Stillen
Approved OpIniofiCommittee              James D. Smullen
By s/BWB Chairman
