                                   The Attorney       General of Texas
                                                  August   14.    1985
JIM MATTOX
Attorney General



Supreme Court BuildinQ         EouorableStan Schlueter                     opinionNo. JR-341
P. 0. BOX 12546                chairman
Austin, TX. 76711-2546         Ways and Means Coamittee                    Re: Legalityof foreignlottery
5121475-2501                   Texas House of Representatives              under Texas law
Telex 9101674.1387
                               P. 0. Box 2910
Telecopier   512/475-0266
                               Austin,Texas 78769
714 Jackson, Suite 709         Dear Representative
                                                 Schlueter:
Dallas, TX. 75202.4506
214l742-6944
                                    You have aubaitted two advertisementsfor lotteries held in
                               foreigncountries,me in West Germanyand one in Canada. You inquire
4624 Alberta Ave.. Suite 160   about the legality of such lotteries. You do not inquire whether
El Paso. TX. 793052793         persona located in Texas who respond to such advertisementsviolate
915/533-3464                   any law.

1001 Texas, Suite 700
                                    Each advertisementdirects the participantto send his money and
Houston,  TX. 77002-3111       order form ~tothe i'oreiguaddress stated therein. The lottery sends
713/223-5886                   tickets,a drawing schedule,or other informatiqnto the participant.
                               The drawingtakes p:.acein the lottery'shome countryand notification
                               is sent to winners. Federal prohibitionsagainst transportingor
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
                               mailing lottery tlcketa, advertisements of lotteries and other
606/747-5238                   materialsrelatedto lotteriesdo not apply to transportingor mailing

                                          (2) to ai addresseewithin a foreign country of
4309 N. Tenth. Suite B
McAHen, TX. 76501-1665
                                          equipment tickets, or material designed to be
5121662-4547
                                          used within that foreign country in a lottery
                                          which is authorizedby the law of that foreign
                                          country.
200 Mai” Plaza. suite 400

;;;g;;;;vTX.
          76z05279718 U.S.C. 11307(b)(:!).

                                   The German lottery is describedin the advertisementas a state
A” Equal OpportUnityI          lottery with prizes guaranteedby the German government. We assume
Alflrmative Action E~Wovn*     for purposes of tt.isopinion that both lotteries are legal where
                               conducted.

                                    The Texas Constitutionprovides that "[tlhe Legislature shall
                               pass laws prohibitinglotteriesand gift enterprisesin this State."
                               Tex. Const. art. III:,047a.

                                   The statutesprohibitinglotteriesare found in chapter47 of the
                               Penal Code. The relevantprovisionsincludethe following:



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    DonorableStan Schlueter- Page 2    (JM-341)




             Section47.01. Definitions

                In this chapter:

                (1) 'Bet' means an agreement that, dependent
             on chance even though accompaniedby some skill,
             one stands to kin or lose something of
             value. . . .

                (2)  'Gamblingplace' means any real estate,
             building, room, ter.t,vehicle, boat, or other
             propertywhatsoever,one of the usea of which is
             the making or setl:Mng of bets, the receiving,
             holding, recording, or forwarding of bets or
             offers to bet, --
                            or zhe conductingof a lottery or
             the playingof gamblingdevices.

                .     .   .   .

                (5) 'Gamblingparaphernalia'means any book,
             instrument.or app.%ratuaby means of which bets
             have been or may be recorded or registered;any
             record, ticket, certificate,bill, slip, token,
             writing,scratchsheLet,or other means of carrying
             on bookmaking,wageringpools, lotteries,numbers,
             policy,or similargames.

                (6) 'Lottery'ueans any scheme or procedure
             whereby one or more prieea are distributedby
             chance among perscns who have paid or promised
             considerationfor EL chance to win anything of
             value, whether such scheme or procedureis called
             a pool, lottery, xffle. gift, gift enterprise,
             sale, policy game, or some other name.

             147.02. Gambling

                (a) A person ccmmitaan offenseif he:

                    (1) makes i#bet on the partial or final
                result of a gems or contest or on the
                performance of s participant in a game or
                contest.. . .

             047.03. GamblingI'romotion

                (a) A person c-its     an offense if he
             intentionally or 'knowinglydoes any of the
             followingacts:




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    HonorableStan Schlueter- Paf;e3   (JM-341)




                    (1) operater; or participates in     the
                earningsof a gar~bling
                                     place;

                    (2)  receivers,,
                                  records, or forwards a bet
                or offer to bet;

                    (3) for gain, becomes a custodian of
                anythingof value:bet or offeredto be bet;

                    (4) sells chanceson the partial or final
                result of or on ,themargin of victory in any
                game or contest Ioron the performanceof any
                participantin zanygame or contest or on the
                result of any apoliticalnomination,appoint-
                ment, or electicnor on the degree of success
                of any nominee,.ippointee,
                                         or candidate;or

                    (5) for g&u, sets up or promotes any
                lotteryor sells or offers to sell or knowingly
                possessesfor transfer,or transfersany card,
                stub, ticket, check, or other device designed
                to serve as evidence of participationin any
                lottery.

             147.04. Keeping a :amblingPlace

                (a) A person G:ommits an offense if he
             knowingly uses or permits another to use as a
             gambling place any real estate, building, room,
             tent, vehicle,boat, or other propertywhatsoever
             owned by him or alder his control, or rents or
             lets any such proprxtywith a view or expectation
             that it be so used.

              147.07. Possessionof GamblingParaphernalia

                (a) A person commits an offense if. with the
             intent to further gambling, he knowingly owns,
             manufactures,tranrifers
                                   commerciallyor possesses
             gamblingparaphernalia. (Emphasisadded).

        The chapter47 provisionson lotteriesmust be read togetherwith
    section 1.04 of the Penal sode, which establishesthe territorial
    jurisdictionof Texas over criminaloffenses:

                 (a) This atatc! has jurisdiction over an
              offense that a perst?ncommitsby his own conduct
                  the conduct of another for which he is
              Zninelly responsibleif:



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HonorableStan Schlueter- Page 4   (JM-34.1)




                (1) either the conductor a result that is
            an element of the.offense occurs inside this
            state;

                (2) the con&uctoutsidethis state consti-
            tutes an attempt to commit an offense inside
            this state;

                (3) the coninctoutsidethis state consti-
            tutes a conspiracyto commit an offense inside
            this state, and an act in furtheranceof the
            conspiracyoccurliinside this state. . . .

     The Texas SupremeCourt h,ssstated that a lotteryconductedin a
foreign country did not viol,ltethe gambling statutesof Texas. In
Caatillejav. Camero, 414 S.V.2d 424 (Tex. 1967). the Texas Supreme
Court consideredan agreementmade in Texas to share any proceedsthat
might be won in the Mexican National Lottery. The jointly owned
ticketwas purchasedin Mexico. In consideringwhether the agreement
was enforceable,the court stilted:

            The agreement. . . to jointly purchase a
         ticket in the National Lottery of Mexico and to
         divide the proceedf:, if any, was not an illegal
         contract. it neitlE!rviolated nor aided in the
         violation of any Isming statute of Texas. The
         only other jurisdic:tion involvedwas Mexico. In
         Mexico the purpose XE the contracthad the express
         approval of the MIzxicangovernment in that the
         Mexican Eovernmenthas a revenue interest in the
         lottery.-Thus the agreementwas to do a lawful
         thing -- participa,;? in the National Lottery of
         Mexico, in a lawful-manner-- by going to Mexico.
         (Emphasisadded).

414 S.W.2d at 426. See also ,Crutchfield
                                       v. Rambo, 86 S.W. 950 (Tex.
Civ. App. 1905,writ-

      Caatillejav. Camero was decided prior to the 1973 revision of
 the Penal Code, which made sullstantive
                                       changesin the criminallaw of
Texas. See Sharpe,Introductionto 1973 RevisionTexas Penal Code, 1
Penal CodeVII; AttorneyGeneral Opinion H-204 (1974). Moreover,it
 did not involveadvertisingof the foreignlotteryin Texas. Finally,
 the participantin the lottery traveled to Mexico to purchase the
 lottery tickets. We will thereforeconsiderwhether the territorial
 jurisdictionof this state extends to any activitiesof the foreign
 lotteriesthat would violate Penal Code provisionsagainst gambling.
-See Penal Code 01.04.
    The foreign lotteries11~1
                            not possess gambling paraphernaliaIn
Texas or keep a gambling place in Texas. -See Penal Code 447.04.


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         RonorableStan Schlueter- Paj;e5   (JM-341)




         47.07. Nor do they commit %n Texas any of the acts of gambling
         promotiondescribedin subsect:lons (1) through (4) of section47.03(a)
         of the Penal Code. Subsection(5) of section 47.03(a) makes it an
         offenseto promote any lotteryor offer to sell a lotteryticket. It
         is possiblethat the advertisements you have submittedto us could be
         evidenceof lotterypromotionin Texas or offeringlotteryticketsin
         Texas. However,the mere presenceof the advertisements   in Texas does
         not prove a violationof secf:i.on
                                         47.03(a)(S). We have no information
         on the foreignlotteries'role, if any, in transmittingthe advertise-
         ments to Texas. Moreover, this matter raises issues of free speech
         rights and federalpower over commercewith foreign countries. See,
         a,    Martin v. United States,389 F.2d 895 (5th Cir. 1968) (18 U.S.C.
         11084, which prohibits trrn~smissionof wagering information in
         interstatecommerce, does not.violate First Amendment). We cannot
         attempt to resolve these importantissues on the meager facts before
         US.




                     Whether a lotteryheld in a foreigncountrycan
                  violate Texas Penal Code section 47.03(a)(5)by
                  advertisingand ofl'eringlottery tickets in Texas
                  involvesfact questions.




                                             J-l&
                                              Very truly yo s
                                                    .


                                              JIM    MATTOX
                                              AttorneyGeneralof Texas

         TOM GREEN
         First AssistantAttorneyGeneral

         DAVID R. RICRARDS
         ExecutiveAssistantAttorneyGeneral

         ROBERT GRAY
         SpecialAssistantAttorneyGeneral

         RICK GILPIN
         Chairman,OpinionCosunittee

         Preparedby Susan L. Garrison
         AssistantAttorneyGeneral




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APPROVED:
OPINIONCOMMITTEE

Rick Gilpin,Chairman
Colin Carl
Susan Garrison
Tony Guilloty
Jim Hoellinger
JenniferRiggs
Nancy Sutton
Sarah Woelk




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