Honorable Thomas R. Chandler
County.Attorney
Robertson County
Franklin, Texas
                                           Opinion No. O-1058
                                           Re:   Whether or not
                                                 operation of
                                                 “Mo,ovy-Award”
                                                 plan by looal
                                                 theatre constitutes
Dear Sir:                                        a lottery
     We have for reply your letter of January 24, 1940, requesting
the opinion :of this department as to whether or not the opera-
tion of a “Moovy-Award’ scheme by a local theatre constitutes
a lottery and as such stands condemned by the Penal Code bf
this state. The plan is described In your opinion to Mr. George
Chatmos, owner of the Chatmos Theatre, Hearne, Texas, as follows:
          “Approximately two weeks ago, you re-
     quested me for an opinion on whether or not a
     copyrighted plan, known as ‘Moovy-,LwAP~,’ would
     come within the prohibition of our lot,tery
     Statutes. At that time you left me the pro-
     posed rules and regulations governing such
     plan or contest and a sample sealed envelope
     containing the question or problem to be
     solved by a person or persons who ‘mayhave had
     his name signed to same, if such person is
     present or whose presence can be obtained, when
     same has been drawn on some night to participate.
            “Said rules and reguktions are as follows:
          “(1) Each patron may sign only one sealed
     entry blank (envelope.)
          “(2) Each entry blank (envelope) must be
     signed In the presence of a theatre attendant and
     must not be opened. A broken seal will serve to
     disqualify the person whose name appears on this
     entry blank.
Hon. Thomas R. Chandler, Page 2   (0-1858)


          “(3)  Each entry blank contains a concealed
     question or problem.
          "(4) All signed entry blanks are kept In a
     locked container.
          “(5)  On the night designated by this theatre
     as 'MOOVY-AWARD NITE,!:the container holding the
     signed entry blank will be unlocked and opened
     and some designated person will select at random
     one or more of the entry blanks in accordance
     with the number of awards to be made on that
     nl.gi;
         I.
          “(6)  If the person whose entry blank is
     selected Is present, or at any other place so
     designated by the theatre and can correctly
     answer the question or problem contained in their
     signed entry blank within a ,reasonablelength of
     time they will receive the award that has been
     announced In advance by the theatre. All ques-
     tions must be answered to the satisfaction of the
     judge or judges whose decision shall be final.
          “(7)  Should the participant fall to answer
     t&e question or problem correctly to the satls-
     faction of the judge or judges they shall not
     receive the award. Awards are to be made solely
     upon skill and knowledge.

          “(8)  If the participant whose entry blank
     is selected falls to answer within a reasonable
     time when their name Is called then that entry
     blank is to be placed back unopened in the
     container.
                       cases where the entry blank
     has b~~~)op~e?   whether the question or problem
     was correctly a;swered or not, then this'blank
     shall be destroyed and in order that participant
     may enter again it will be necessary for him to
     sign another sealed entry blanL.
                :dition to the above printed rules and
     reg‘rlp      -'ou inform me that any and all persons
     m.-               In the contest, by only signing
                  _i ; address on the sealed envelope
          .i3-
             I;;>~-
                 z..ig,or being required, to pay any
     fee or cna-lderation therefor; and that when, and
Hon. Thomas R. Chandler, Page 3 (0-1.858)



     If, said name Is drawn that It would not be neo-
     essary for the person named to be a paid customer
     of said theatre on the night of the drawing or at
     any other time ln order to qualify to enter the
     oontest.~ Suoh person named on the envelope drawn3
     if present or on the outside of the theatre when
     his name la oalled, and answers by appearing within
     a reasonable time thereafter, may participate.
          "You also inform the writer that a   prize
     or prizes will be awarded the person or   persons
     solving said question or problem on the   night
     In question; said prize or prizes shall   be made
     in money or merchandise.'!
          Section 47 of Article III of the Constitution of
Texas,~i:reads':!
          '!TheLegislature shall pass laws prohibiting
     the establishment of lotteries and gift enter-
     prises ln this state, as well as the sale of
     tickets In lotteries, gift enterprises or other
     evasions Involving the lottery principal, estab-
     lished or existing, ln other states."
          Pursuant to such command the Legislature passed
Article 654 of the Penal Code, which reads as follows:
          "If any person shall?establlsh a lottery
     or dispose of any estate, real or personal, by
     lottery, he shall be fined not less than One
     Hundred ( 100) Dollars nor more than One
     Thousand f$1000) Dollars; or If any person 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 ($10) Dollars nor more than
     Fifty ($50) Dollars."
          In City of Wink vs. Griffith Amusement Company, 100
S. W. (2d) 695, (Tax. Sup. Ct.) the court said:
          "The State Penal Code does not define a
     lottery, but our courts have interpreted it In
     accordance with public usage, to mean a scheme
     or plan which provides for a distribution of
     prizes by change among those who have paid, or
     agreed to pay, a consideration ,for the right to
     participate therein. 28 Tex. SW. p. 409, Sec.
     2, and cases cited In the notes."
Hon. Thomas R. Chandler, Page 4 (O-1858)



    .
          This
             .
               department
                 ^ . ,    has. .on
                                , several
                                       - occasions
                                          .    .--.passed
                                                       .
on tne questlon or wnat constitutes a lottery, nolalng In
          (1) OpinlonO-428 to Honorab&Clint     A.
     Rarham, County Attorney, Erath.County, dated
     April 26, 1939, that a number system used by a
     theatre'whereeach seat In the theatre ls'ntun-
     bered and a ticket is seleoted or drawn from a
     number,of tickets containing all the numbers~
     on the seats and a,money award or other thing
     of value ls,given to the person sitting In the
     seat that.has a corresponding ~numberwith the
     number drawn Is a "lottery" and the operation
     thereof Is a violation of Article 654 of the
     Penal Code.
          (2) Opinion O-967 to Honorable Tom Sea
     County Attorney, Potter County;dated June 1f?,
     1939, that a scheme whereby, in substance, a
    'theatre owner gives a prize to some patron of
     the theat& present after a~~&%i@ngfrom which
     some patron's automobile llcense'number may be
     selected, under the facts presented, constl-
     tutes,a violation of,the lottery laws of this-
     state.
          (3)  Opinion 0-Lfv$,to Honorable Robert
     S. Cherry, County Attdrney;~Rosque County,.:      ',
     dated August 10, lgS$ ~that it is a violatlon~
     of the law for the merchants of a given town
     or community to give their'customers tickets.
     with each'purchase of merchandise from them,
     which tickets are good for chandes upon merr
     chandise or money given away at drawings, held
     periodically Inthe said town or tiommun!ty"
          (4) Opinion O-1200~to Honorable Robert,F.
     Peden, Jr., County Attorney, Matagorda County,
     dated August 12, ~1939, that the "Aces Quiz
     Night" scheme or plan (under the facts stated'
     to this office) is a "lottery" and in vio-
     lation of Article 654 of the Penal Code of this
     state.
          (5)~ Opinion 0-1329~to Honorable JacksBorden,
     County Attorney, Parker County, dated~,
                                           September 8,.
     1939, that a sch~emewhereby, in substance, a theatre
     buys the~fingerprlnts o'fa oltizenof the.community
Hon. Thomas R. Chandler, Page.' (o-1858)


     by selection of one fingerprint from the files
     of the theatre, Is a violation of the lottery
     laws of this state..?.
                          ".
          (6) Opinion 0-1336 to Honorable Paul T.
     Halt, Count Attorney, Travis bounty, dated
     September Iti,,,1939,that a soheme whereby, ln
     substance, a suit club" gives credits In
     trade to winning contestants for completing
     a sentence, etc., constitutes a violation of
     the lottery laws of.~thl‘rj%%t&el;
          (7) Opinion O-1789 to Honorable Andrew
     Patton, District AtCorney, Dallas County, dated
     December 22, L@s, that a theatre program
     featuring the "Doctor I. Q." radio broadcast
     over a network is not a violation of the lot-
     tery statutes of this state.
          In the case of Griffith .&@sem@nt~Company vs.
Morgan, 98 S. W. (2d) 844, it was held that the elements
essential to constitute a lottery are (1) a prize In money
or thing of value; (2) dlstrlbutlon by chance, and (3) pay-
ment, either directly or lndlreotly, of a valuable considera-
tion for the chance to win the prize. See also City of Wink
vs. Griffith Amusement Company, supre; Featherstone vs.
Independent Service Station Association, 10 S. W. (26) 124;
Peak vs. United States,::.$l~ %ed. (2d) 973; Grant vs. The
State, 112 S. W. 1068. Instate vs. Randall, 4:   ~.&Tex. 296,
                                                       that
and Holman vs. The State, 47 S. W. 850, It was
any scheme for the distribution of prizes by chance Is a
lottery. Accordingly, the "Bank Night" scheme (City of Wink
vs. Griffith Amusement Company, supra) the "Buck Night?
scheme (Robb and Rowley, et al vs. The State, 127 S. W. (2d)
221), and the "Noah's Ark" scheme (Smith vs. The State, 127
S. W. (2d) 297) have all been held to be lotteries.
          We take the liberty of quoting   again from your
opinion to Mr. Chatmos as follows:
          "As to the seoon&lement   In the crime
     of lottery, that Is, the.zward or dlstrlbu-
     tion or the prize or prizes by chanoe, will
     say that the act of drawing of the sealed
     envelope upon whloh 1s subsorlbed the name of
     the 'lucky' person, and his address, is In
     Itself a chance, unless the same Is offset by
     the 'chance' of the named pe$s,o,n,!s
                                        presence
     and solve the question or prdbiem contained
     in the sealed envelope bearing suoh persons name.
Hon. Thomas R. Chandler, Page 6 (o-1858)


         "As has been stated by your and accord-
    ing to the rules and regulations stipulated
    the second element of the crime of lottery
    is not present, In that the prize Is awarded
    and made solely upon the knowledge and skill
    of the person whose name appears on the
    sealed envelope In the solution of the ques-
    tion or problem therein contained, even
    though the person's name was 'selected,by
    chance, that is, by drawing suoh envelope
    from a container." (Citing Boatwright v.
    State, 38 S. W. (2d) 87.)
          We regret that we cannot concur with you In this
position, and this 'departmenthas under similar facts
ruled adversely to yourcontention.   In Opinion O-54 to
Hon. Renfro Speed, County Attorney, Freestone County,'~
Falrfleld, Texas, dated November 21, 1939, the theatre
selected a patron as "movie critic" by a drawing, and
his duty was to attend and crlticlze'pictures for which
he was paid a cash award. In that opinion it was held that
the plan constituted a lottery, and we quote,from that
opinion as follows:
          "It may be contended by some thatthe
    theatre operator has conceived an effective
    escape from the lottery laws by providing
    that the person designated 'movie crltlC!
    must actually attend the pictures and must
    actually  criticize, for which criticism he
    wlll~be paid the grand award In cash. We do
    n&believe    the Legislature intended to.
    enact a statute which might be evaded by such
    subterfuge, and this department has heretofore
    ruled adversely to similar contentions-~ In
    Opinion O-1329, dated September 7, 1939, the
    theatre operator sought to sid~estepthe lottery
    by 'purchasing' the fingerprin~tof the winning
    patron, yet under the particular facts the scheme
    was held to constitute a lottery. Likewise, in
    opinion 0-1336 of this department dated September 18,
    1939, in which a 'suit club' was held to constitute
    a lottery, the fact that contestant was c.ompElled
    to write a twenty-five word statement telling why
    he liked the brand of clothes in question availed
    the proprietor nothing in escaping the condemna-
    tion of Article 654 of the Penal Code."
Hon. Thomas R. Chandler, Page 7 (o-1858)


          Under the facts presented In opinion O-1200 of
this department to Honorable Robert F. Peden,.Jr., County
Attorney, Matagorda County, Ray City, Texas, dated August 12,
1939, the theatre oonduoted a 'quiz nlght" and patrons
reoeived prizes dependl?g"upon~thelr ability to answer
certain questions, the patrvns reoelvlng the questions
entitling them to awards if correct enswers were given, as a
result of ohanoe. This scheme was held to oonstltute a
lottery.
           The facts Involved inopinion O-1789 of this
department to Honorable Andrew Pa&on, District Attorney,
Dallas aountyZ~.~Te~as,dated Deoember 22, 1939, are dls-
tingulshable. There It was held that a theatre program
featuring the "Dr. I. Q." radio broadoast over a radio
network is not a violation of the lottery statutes of this
'State.. However, in that situation, all patrons of the
theatre were entitled to participate by answering ques-
tions If they desired, and no one was seleoted to par-
tloipate as a result of drawings by lot or chance. The
chance element was not present.
           Likewise, we believe that the case of Roat-
 wright vs. State, 118 Tex. Cr. R. 381, 38 S. W..(2d) 87,~
 olted In your opinion, Is dlstlngulshable from the soheme
 presented in your letter. In that oase the Court of’
 Criminal Appeals held that a punch board wherein were
 placed different oheoker problems, the same to be com-
p&eted by the participant after paying a fee for the
'privilege of playing, did not constitute a lottery, even
 though prizes were awarded those working out the best
 solutions. However, the court emphasized the fact that the
,only element of chanoe there lnvovled was the nature of
 the checker problem to be drawn. There any person might
 participate in the geme and every person who purchased a
 ohecker problem stood on an equal footing. We believe
 that the right to the opportunity of answering the ques-
 ti-ens-orsolving the problems under the faots involved-in
 gcur:.l.@tter
             Is a valuable right which aoorues to a.pat%n
only. aaa result of chance,--that is, by having his sealed
 eirtryblank drawn and selected. Thus, the dlstrlbutlQn of
 the prize to suoh Portunate.-QW%%~*ls a result of-$h"cice.

          We conour with you In the belief.pxpressed in
your opinion that the mere fact that a person may partlol-
pate although he Is not present In the theatre If his name
Is aalled, and he presents himself within a reasonable
time, is not sufficient to relieve the plan of the third
element of a lottery; namely, the furnishing of oonsideratlon.
Ron. Thomas R. Chandler, Page 8 (O-1858)


          We quote from the opinion of judge Hawkins in
Cole vs. State (Ct. Cr. App.), 112 S. W. (2d) 725, as
follows :
          "The undisputed facts proven by the
     State show that no one present at the
     theatre on 'Rank Nite' was entitled to
     have their name or number participate In
     the drawing for the prize unless their name@::1
     were registered in the 'Bank Nlte Rook,'
     for which registration no charge was made.
     Those absent from the theater on said night
     but whose names were likewise registered
     without charge also participated in the
     drawing. So It will be seen that no direct
     consideration passed from the participants
     to appellant. It occurs to the writer that
     the vice in the scheme--the things which make
     it a subterfuge--are the following: The party
     who is in the theater Is immediately present
     to identify himself If perchance the number
     corresponding to the party's name on the
     book be drawn. If a number be drawn which
     corresponda:&o the name of some one not .in
     the theater, It appears to be a remote pro-
     bability that such a one will be able to appear
     in the theater and identify himself within the
     short time allowed, and no possibility for such
     Identification If the holder ~of the number
     drawn is not in the immediate vicinity of the
     theater. Therefore, it appears plain that
     those who have paid admission to the theater are
     in a more favorable position to claim the
     prize than one on the outside, although the
     names of both have been registered in the book
     without charge. The practical working of the
     scheme is bound to be known to all patrons of
     the theater, If the prize would have gone to
     some one not present but remains unclaimed, it
     Is pyramided on the amount of the prize for the
     next 'Rank Nite' drawing. The conditions
     naturally exclts or increase a desire on the
     part of those eligible by reason of their
     names being registered to pay the admission
     price to the theater in order to be more
     favorable situated to claim the prize on a
      !Rank Nite' drawing, and in this way an indirect
     consideration does move from them to the operator
     of the scheme and furnishes the third indispensable
.




    Hon. Thomas R. Chandler, Page q (O-1858)


         element of a lottery."
              We believe that the essential elements of a
    lottery are presented by the facts set forth Inyour letter.
    The theatre provides merchandise or money for those patrons
    fortunate enough to have their questions selected, and who
    answer them correctly. The prize element is present.
    Moreover, a drawing or selection of the names of patrons
    fortunate enough to partiolpate Is made and the chance
    element oocurs. The third element neaessary to constl-
    tute a lottery, namely, the furnishing of consideration
    directly or Indirectly by those participating, is also
    present. See Cole vs. The State, supra.
              Consequently, It is the opinion of this depart-
    ment, and you are respectfully advised, that a theatre
    operator conducting the scheme set forth In your letter
    would be guilty of operating a lottery as prohibited by
    Article 654 of the Penal Code of Texas, 1925.
                                   Yours very truly
                              AT-J!CRNEYQENERALOFTEXAS


                                           Walter R. Koch
                                                Assistant


                              By
    J'DS:LW                                James D. Smullen

    APPROVED   FEB. 2, 1940


    ATTORNEYQENERAL OFTEXAS
