      OFFICE    OF THE ATTORNEY          GENERAL   OF TEXAS
                                AUSTIN




monorable   aDbert   0.   cherry
County Attorney,
&osqlle county,
meridian, Texas




                                              aUdresseU ie Attmmey




                          it a ~lolatioa of the law ior
                           ts of a &Tell WM or commm-
                          e to their custiere ticgets
                          pumhaseef~mhmadiee     from
                          ch ticlrots are gOOd for ahaaQBr3
                                  or money given asay et
                                 riodlcpa;tlyIn the saM
            wtns QF 4%6lmm%tyt"

           *It is the opin%on of the vriter that aZ1 ma&
      a&erfst&q    mhemee, +a tdxeone Ueocrlbed by fM8.
      qrxestlon, are ~lat&ens  of ~the lottsry lam ,9? bJ)e
      8ti&q. .%'heCounty Attorney*sbrfsf QB the q6e@b
      Is as fellorea
            *xtmuluw4m             tbatthepraperplaae   tieaeapI
Hon.   nubcrt         k’. Cherry        - page        2




       an analysis Of tbla question would be the Constltu-
       tlon of foxas, which in Art, 3, Sot. 47 states  as
       f0110*0:   rllhe Legislature shall paam lawm prohlblt-
       lng     the     ef+ablimkxnolt            of       lotteries       and   gfft    euter-
       prlses In thin State, as veil as the male or ti~okmts
       in lotterleg gist enterprises or other evamlonm                ln-
       mlriag the lot*             principle. establishedor      mxlet-
       lng In other 6tatea'            (Vornon'a Annotated    conetitu-
       tlon, ArLrt.       3, sea 47). In oonmtrulag       this article,
       th0 Supraae Court Or Texas has held in City of Wlnk
       7. Orlffltb bmusewtlt co., 3OC S. W. (ed) 666, that
       thl~pxvrla.lon         mamaotlntended    to condQmmerely
       Zotterlem, but was &tenUed           mlso to condtxmm the mep-
       arately        ltatmd  mahenem which mere wt lotteries but
       rhlch imolred          tbe lottery prlncrlple or chmnoe and
       rhlch         were   used        W   entiae         the   oredtilous       and   unwary.


             ~Artlche    654 and658    of the Peual Coderefer
       to *lottery* and *raffles* and were mpparently paes-
       ed by the Leglalature in obedlenoe to Art. 3, Sec.47
       of the Constitution as above referred to snd protides
       am follm~~      Art. 6~4. *If any person shall        establish
       a lottery or diepose of any estate, real or perm0naJ-
       by lottery, he shall be fined not lemm than One hw--
       dred nor wre     thau one th~uaand     dollars; or If fray
       permoa mhall mall,     offer for sale or keep for male
       any ticket or part ticket In any lottery, he ahall be
       fined not lees than ten nor nore than fll'ty dollars.
       lXfnnypereon       shall emtmbl1mharm#le         foror    dim-
       poet I3y raffle oi any metate, real or personal, mx-
       oeedlng five hundred dollarm In value, he mhall be
       tined not less thmn one hundred nor more than one
       thousand dollars; or If any person shall estahliah
       a raSSle Sor or shall dimpose by raffle of may mm-
       fate, real or personal, of the value ot five hcmdred
       dollars or less, he shall      be fined not lees thaa riva
       pornwre     thantvo hundred dollars. Whoever shall of-
       fer  fvr  male  or h-p for smle auy ohaaaq          ticket or
       part ticket, In any raffle      of   amy estate,    rmml  or   per-
       sonal OS muy *us       vboterer    shall be tied wt lemm
       then ten nor wre      than tiPty dollars.*

             lIII ooamtmlng  theme articles of the Penal Code
        and the Conetltutlonol pr0rimlon above referrod to,
        the courts have variaualy defined *lotteries0 and
        *r~fflos* as follover
lion. Iiobcrt F. Cherry - page 3




          *AIRY mcheaue for the cllstribntion of prlaea by
     chanoe is a lottery, and it matters not by what nme
     muc ha laheaue may be born,   It mea   within the pro-
     hibition of this   article. State v'. Randle, 41 T.202
     and Rde     v- State, 42 1. ti80. It la 110 lema a lot-
     tery because the aehena includea no blanka If the
     prices are of unequal value. Randle t. State 42 f.
     -5   Iloloaan v. State, 2 Cr. R. alO. bay 8Uhwe for
     the distribution of prizes is a lottery, though thore
     WUWPDblW.         We's guilt of eatabllahlng a lottery
     does not depend on advise recclved am to the innocent
     characterofthe     dtxlae, nOr~nhlaombellef       that
     It 1pa not a riolatlon Of the lam. Qeen v. State,
     s48 8. v. 3sc

           *The CQWtB  have diBtiq@ahed   lott8rlea and
     raffles by defYal.ng lottery am a gane ln which there
     is a keeper or exhlblfor,‘and agalnat ahorn the bet-
     ter mtmkea him money, while a raffle d.8 said to be a
     gwe of perfect ahawe ln ahlch every participant Is
     OWJUd With '?V8rJ Other in the pl.OpOrtiOn Of hi8 risk
     azaiprospect of gsin, the raffle having no elea8nt
     of km8perordealer    andnotbelng   abanklng   gazae.
     Sttanem   v* State, 21 T. 69% Rlmein ~0 State, 71 S-V.
     976

           aThe 1-g      same, relating directly t0 a gxvup
     Of I!I~GhantB UBhg   a plan which appprentiy iUWlve8
     a 'lott8ry prLnolple' a. an advertialng 8Ch5.3,      88CmB
     to be Feat&u-stone v* Indepaadent Serrloe Station Amso-
     clatlonoSTexa4      lnrhich  the o~ortheld    that where
     mm amamcimtion of dealers   aold tlcketi   t0 its neabmrm,
     mhlch ticketa were then @maa by the dealers       to cam-
     tOWr8    andothera  for thepurpomeof     attracfingpat-
     ronag8, the tickets entitling the holders to a chanoe
     W rln sn aatamobile    ptrrchrued by the ameoclation with
     the prooeeda of the males of the tloketa, much a
     mehma was held to be a lottery wlthin the meaning of
     the Bt.tUt8.    &d It was further held that much lof-
     tery wa slubjwf    W be enjoined by a 05petifor      U&OBe
     -8.       warn Injured   thereby,   under   the rule   that
     equity mill enjoin an act which awunta      to a orime
     where property right.    are Injured thereby=   Feather-
     aWne T. Independent Sal-rice Station Aaaoclatlon of
     Texas, (Clr. 4p.)     IO 6. U. (2d) l24. 28 lox. Jur.
     414.
&Ion. liobort F'. Cherry - pogc 4




          lThC plan UBOd ilY IiOsqUC ~UI’Ity does Ilot re-
     quire any paraon to pay dlrootly any consldcratlon
     in order to obtain a chance at the drauln& but It
     does do 80 indireotly in that mOrChrudi8e awst be
     purchased ln order to ontitle the purchaser to the
     U&et   vr chwoe, and it aeaPa to this writer are
     baaed upon the *lottery prinoiple' rcifXV?d to in
     the conatltution and under any reaeonable conatruct-
     Ion or the statutes and the opinion or the courts,
     are unlawfuLm

           Xou hare tborOUf@y  beefed   the question BUbZIitted,
for ahlch ae espf?ma our apprOCiatiOn* After oarefully eon-
miwlerlng it, we hare concluded there la no neoemalty for any
further ~~BCUBB~OII of the subject.   It iB Our O'piniGn that
you hare correotl7 mnmwermd the question In the affirmative.


                                      Verytrulypura

                                    ATTCRRlUllrP
                                             GRRERAL OF TEXAS




                                               Bruce W. Bryant




                                        0
                                                     Aaalatant
                                          APPROVED
                                            OPINION
BUB=XR                                    cOMMlY-TEE

                                         BY c**I"Y*
                                             .d%w

APPROVEI‘AUO   10, 1939
