      OFFICE OF THE AlTORNEY        GENERAL    OF TEXAS
                           AUSTIN

                                     ._
                                          .r
Ronorable X.0. Flowers                    i
Secretary of State
Austin, Texne

Dear Sir:            Attention of Mr. Will ~e&Rfchardaon
                     +plnion flo,0&3f3.--~   is% ',
                     Re: CorporatlonLy~~Furg&e blause -
                     Innocent aprmte. .~'  .'.      ',~
          Your roquest for
c~i'ullg consideredw this,
request a0 L"ollova:




                he members mag from time to time deter-
            tie.'
         "We vould ap:,?reclate
                              an opfnlon from you as to
    vhether such purpose clause ia authorized In Texas,
    and whether it comes within the innocent sporta aub-
    dtvlsion of Article 1302."
            The purposes for whloh private aorporationfi
                                                       ma? be
formed in the State of Texa6 are enmmrated in Article 1302,
Vernon's Annotat&d Civil Statutes. Se&ion 9 of said artltle
                                                                     306




Honorable M.O. Plovers,       Page 2


reads am follows:
             “9. To support and maintain bicycle clubs,
        mad other Innocent mport.8."
          Webmter'm IievInternationalDlotlonary,2nd Edition,
defines the terms "bridge", "8hlmt" and "mport", am followm$
             “EPldgO   - A card gam    derived from vhimt, etc.
             "Whist - A card mm        for faur player8 played
        withapaakof5    ?--i&k
                          G
             "sport - 3ome partleularplay, gmmI8,or mode
        of mxmamementjamt (1) a d.tvsrmionof the field,
        am fowling, hunting, fishing, raelng, -8,    emp.
        ath%otle g-em, and the like1 also any of various
        chl1m.rgaPem OF dlvormion6 umually played un$er
        aover, am bovling, rackets, bmmkmtbm~,  ho.

             The came of 3mlth vs. Worthmm,157 3W 741, held that
under    Rev. Stat. 1911, Article 1121, mubd. 36, permitting the
fomtlon of bicycle clubs mnd “other inuoaent sports," a aor-
porate charter naming In its purpose olaumo an automobllocrlub,
the purpose and objeat of which shall be to promote innooent
sports by mean8 OS automobtlee, vam inmuSSlc%ent, 8Inee a
definite lnnoaent sport must be named, vhlah the charter did
nat do. The earn8 also held that,the rule of "ejumdemgenerlm*
dld not apply, mince the.tena "@oyolo elubm" vam used ln the
8enme of a distinct and lndivldtiltnnooent sport, complete
within itself and separate in ills ldentltp. The oame almo held
that the aubdiolmlonof the ltmtute was not invalid beaaume
delegating by the quoted clause "other Snnooent mport8" legis-
lative power to the Setretary of State to determinewhat aor-
poratfonm mmg be formed. We vimh to paint out however that
mince the renditionof maid same, the Legislature In 1929 pasm-
ed Seatlon 91 of Article 1302, V.A.T.C.B., which authorlmem
the creation of corporations Soor the purpore of forinbg auto-
mobile clubs.
             Article   615,   Vernon's Annotated Texam Penal Code,
readitam Sollovat
             Whoever shall      , or bet or wager mny aor4r~r
        or othzxisg    of        at mny-gmmm of awls at
        any place not a private mxnoe     ooaupied by a
Bonorable M.O. Floverm, ?mge 3


     Samllx, shall be fined not exceeding fif%y dol-
     lars. (Undermaorlngours)
          It la an offense to play cards even without betting
mt any place, except at a private rmmldenae occupied by a
sma11y. See the following oam4mr
          Elliottvs. State, 127 SW 5473
         Borders vs. State, 6 SW 532%
         Oallegam vs. State, 95 3W 124;
         Lamar vs. State, 95 SW 511.
          Article   617, Vernongm Annotated Texas Yens1 Code,
reads as Sollovm~
          "The provlrlonmof the two preoeding articles
     which permit gsmfng at a private residence oaeupied
     by a family shall n&t apply in came much residence
     im one oomunonlgr&orted to for the purpose of gmm-
     ing, nor vhere the gmme played la m banking gmme."
          This departmentheld in an exhaustive conferentre
opinion vritten by Eon. C.M. Cureton, First Ammimtant Attorney
General, (later Ohle? Sumtiae of the Su reuseCourt of Texas)
dated February 20, 1915, printed in 191B-1916, Reports of the
Attorney Oenmral, pmgem 454-470, in&, that pool mnd billiard
alubm could not be ahartermd under the purpose clause which
authorizedthe formation of aorporatlonm   "to support and main-
tain blcgole clubs, and other innocent mportml beoaume maid
amusements of pool mnd billiards WON) Agamwmn mnd not "nportm.*
We quote frormmaid opinion am follovmt

          %%e games of pool and bllllaldm am eomnly
     understood are not sports in thm usual and ordln-
     ary sense of that vord, but are guaem and there-
     fore are not eabraoed vlth5.nthm terse,mnd pmvl-
     &ions of subdivision56 of Artlele 1121.

          "The use of words and phrmmem and the meaning
     attached to thmm~may be detsrm&nedby their mtatu-
     tory use, their judlaial, 001Zoquialand teehnlaal
     uue and by their literary and historical emfployiment
     ....
          “The courts of othei; state4 have likevlme ton-
     mtantly and continuoumlyreferred to the axsuaoxmsntm
     known as pool and bflliardm as gmmem arsdalmam8d
Ranorable #.O. Flowerm, Pm,ge 4


     theme mmnxmemmntm,aa does our statute. along with
     cards, checkers, e~c....~Undermaorlngours]
            "The City of Clearwaterva. Bovmsn, 82 Pac.,
     546.
            "Squlsr vs. State, 66 Ind., 3171
            "Sykes vs. State of Alabama, 67 Ala., 77.
            "United State vs. McKennm, 149 Fed., 252.
            "Ellison vs. Lmvin, 66 L.R.A., 604.
          "The word 'sport' la usually confined to field
                                     have other memnlagm,
     sports, though of aourse it lllay
     but its usual slgnifleatlonIs that auggemt4d.
            "White vs. Western   Aasurmnue   Compaixy of Toronto,
     54 liw 193.
            "WIrth vm. Calhoun, 89 IIW,785.
          "In the first stated mmme thm court refers to
     a mportmman,quoting the Cent&y Dictionary am follow&t
                 "'One who sports, a man who praatioes
            flold sports, 4mpeoIallyhunting or flsh-
            lng, usually for pleasure and in a legltl-
            mmte manner.'
          "In the last nmm#d came ths question vam whoth-
     er or not a theatricmlperformmnae,aon4lmtIngof
     muslc and dmnoln& and ieate of aontortlon,was sport
     or sporting. The statute under examlnatlonr4ad, so
     Sar am It 1s nec488mry to refer to the case, am fol-
     lows:
                 "*If w   person of the age of fourteen
            years or upvard shell be found on the first
            dmy of the veek, commmonlyaalled Sunday, mport-
            lng, rioting, quar~ellng,hunting, fishing or
            shooting h4 or she mhall be fined, etc.'
          "The statute vent momevhmt further than the quo-
     tation does in also mmking It an off4nma,to labor at
     comon labor on Sunday. The murt, after dimposlng
     of the question and in holding that the theatrlcml
     performancevem not embwoed within the tdnns of cam-
     man labor, th4n took up the immue am to whether or
     not It fell within the vord 'mpo&ing', as used in
gonorableM.0. Floweca, Page 5


    this atLtute, and quoted vith approval the definni-
    tion of ‘sport’as defined fn Webster, among other
    thlnga saying
               ” ‘?3gort” ia defined by Webater aa
         followa: To divert; to make aierry;to
         represent by any kind of play; to exhibit
         or bring out in public, as to sport a new
         equipagej to play; to frollo~ to vanton;
         to praatioe the dfveraiona of the ffaldl
         to trifle.” According to the aama lexioo-
         grapher, "sporting"means "lndulglngin
         aportr practlolng the dlveralona of the
         f:eld.” If we uae the definition of
         “mart,” inateed of:the to? itself, in
         EZ%%l~h~e       “Zf 0EE~l        j EeiZ~~-
         in dlvertlngJ   (2) to indulge   in axwry-
         aakingj (3) to lndul 0 In rspreaentlngby
         any kind of play1 (47 to indulge In being
         out in publlo,,aa to indulge in sporting
         a new hat or carrlagej (5) to indulge ln
         play or frolic3 (6) to indulge in vanton-
         neaaj (7) to indulge in trifling) (8) prro-
         tiolng the diveralone of the field. It la
         obvious, we think, that the Lw@alature did
         not eplploythe teflnIn the aenae of the
         firat, aeomd, fourth, fifth or alxth de-
         finition above given. They are too buoad.
         They Include too muah.   If adopted in the
         oonatrmotlonof the atatute, our Sunday
         lav would rival the moat atrlngent of the
         blue lava. The third ia a aenae in whloh
         the teffais rerely used, and ia illustrated
         in the Century Diotlonaryby e line from
         Dryden~ “Row epor%ing on the lyre the ‘Lovea
         of youth.” Aa thua llluataated,It, alao,
         is too broad, aa it lnaludea awiy oonuaonand
         lnnooent dlveraiona. The seventh has no
                     to thla case. Thla leaves tha
         ap~:~licatlon
         eighth8 !practlclngthe dlveraiona of the
         field,  as the definition the lawaakerapro-
         bably had in mind when the law vaa enaoted.
         Thin appears still store probably on the OX-
         a&nation of other defini’tiona.In the (Ien-
         tury mati.onary*e general meanlng of “sport-
BonorsbleW.O. F1overa, Page 6


              lng” la aald to be "engaging or concerned
              in sport or dIversIon" the specific mean-
              ing, "interestedIn or raaticlng field
              aportarnt   (89   11.W.,   .,87P

            "From the foregoing It la seen that the court
       took up each of the aeveral definitionsof sporting
       as given In Webster and ooncluded that the Code under
       whIah the proaeoutlonvae brought could not refer to
       eny of the definitiona there given except the eighth
       one vhIoh vaa tpracticlngtiediversions of the field,'
       and It is thla definitionwhich It seems to us the
       Legislaturehad in mind In providing that oorpora-
       tions might be chartered for the purpose of proamtIng
       bieyycleclubs and other innocent sports.
            “The Supreme Court of this State  has already
       held that in drefting  the purpose olauae of a charter
       under this aubdlviaiona definite sport mrt be dea-
       oribed or set forth.
              %a&th VI).Worthara,157 S.W. 741.
            'The court In en opinion rendered In tha Sa&th
       oaae referred to baseball as a vell reoogaixedand
       definite lnnoaent sport. It seem to us that this
       aaae Is persuasive of the lnalatenaewhich ve make
       that the vord 'nporta,'as used In this statute, does
       not refer to @mm,   but refers to those classes of
       amusementswhich have been reaogniaed from time
       Iaaaemrialas aporta, not to that olasa auoh aa
       oarda, dice, pool and billiards, vhioh h")rebeen
       from time lmmaorlal ~seifled as games.
          This departmentheld In an opInIon written by Hon.
A.R. Stout, Assistant Attorney Oensml,  dated Januall~12, 1934,
recorded In Vol. 353, pages 302-307, lnoluslve,that the
Hetropolitm Bridge Club of Rouaton, Texas, vas not entitled
to receive a ahartsr f'romthe Seoretary of State under aubdi-
Vision 9 of Article 1302 of the Revised Civil Skatutea. This
Opinion referred to Judge Curetonta holding In the opinion
above quoted. We quote from Judge Stout's opinion as follovar
            "It has long been a deputmental ou6tom and
       praatloe to refufteto gent eharter8 similar to
       the one in question. TM.6 praatloe and euatom
       Is due soam weight, eapeoially if there ahould be
mnmable   l6.r).
               Plovers, ?age 7


    any doubt about   the matter. Hoorman v. Terroll,
    202 8.U. 727, 109 Tex. 1733 Sdwmrds v. Jams,
    7 Tex.   372~ Flm Aark.  v. Love, 108 8.W. 810
    101 Tex. 376~ Walker v. Meyers, 266 S.V. 499 [T.x.
    sup.). In the juagwmt of the vrlter, there 18
    no doubt, for one mason, on aoaouat of the most
    stringent laws that ve have always had against
    eatis and gutag.    Horeover, if the point in que8-
    tlan should be doubtful, the opinion of the then
    Attorney   bneral, nov~&$'dqtice     of our Supems
    Court, Is, or xhould be                HerPir county
    v. Balamld, 205 S.W. 445 fZE%L4d).
         "Hany years have passed since the&j Many
    Legislatures frmh from the people hwkooars and
    IT-* Ourrt&ukshavebeenreaodifiedand         thin
    rulI.ngof ove~elghteenyeara agoha not been de-
    parted from, yet dmlng all of this tins, subdlvi-
    slon 9 has not been ahanged one vhft.
           "'phi6is not all. While mury mportsmlghtbe
    gaaum and many &user might be sporta,      bridge or
    card plnyliq    la one plea-     or ps8tWe   th8t hrs
    alvaya~ been eoxuldwed     and dealgnatedas a         1’
    The vrltor   haa failed to find   where it ha8
    desl.epyrted othwvlre.     It la a card &are that is
    en *offshoot*oi the old l&gll& game of uhiot
    and that is all there ir to it. About It, tha
    lexioographen says
               “‘Aeard       r8Bembllngvhhirt.'
          Webster*6 Eev r ternationalDlatiomwy.



         "Bridge ir just as muoh a &me u 18 poker
    and they are both universally spoken of as ga?6es.
    As  onevhohas MISS knowledge of bothliole sn4
    Bf~.Culbertson no imtanae 0aabe *oalXed&
    where either oi them ever applied amythins other
    th83lthOVOl’d 'gm't0    thI8 mat mtim.
         'At the time subdIvlaioz~9 was r&rat purred,
    bridge vaa not played muah, if even beeud of.
    Poker, however, then as mu, Was Still SxteU& u
                                                             3%2



Eonorable X.0. Plovers, Page 8


    faot, we had then, as now, stringer&lava mgalnat
    it, and as lrte as 1911, we flnd Judge Dmvidmon
    aaytngr
              "'Thmt the prmctloe of gambling la
         demoralltlng,lnlrioal to aoalety. and
         destructiveto the rorala of the youth
         a6 well as Iwn of uturer years.* Purvla
         v. State, 137 S.W. 701.
        '%e vriter does not believe that any good lav-
    yer would seriously oontend for long thet A poker
    club oould be orgmnleed under aubdlvlsion9, yet in
    so far as the lava of our Legislature provide, bridge
    and poker hew the acme legal standing or occupy the
    amme station, legallY.
         "Article615 of WI- Penml Code ot 1925 provides:
               "'Whoever ahmll plaY, or bet or
         wager any mosey or othearthing of value,
         at a.nygame of oarda at mny place not a
         private maldemse oacupled bY a frnily,
         shmll be fined not exoeedlng fifty dol-
         lrra.'
        "In other vordm, whoever ahmll plug . . . mt ray
    game of cards . . . ahmll be fined not exceeding
    fift dollati, and the only exception la a private
    realb co, vhich one amp play umrds tr game vlth oarda
    in, ao long as he does not oommo~y resort to It for
    thatplppose. If he commonly reaorta to such prlvmte
    residence for the purpose of gmmlng, then his cornhot
    Is illegal just as it would be In any place save a
    private realdenoe,whether he plrced monay or value
    on the cards or not. ArtSoles 615 and 617 of 1925
    Penal Code3 20 Texas Jurisprudence,p. 619, pmrm. 14~
    Osllegaa v. State, 95 S.W. 1233 harvim v. State, 137
    s.7. $01. The above cited authoritlem serve to illurn&
    trate the prino'lple,although the books are full of
    analogous ones. Our Legislaturehas no doubt alvaya
    prooeeded upon the theory that:
              "'Cerda are as mumh a qsm;~qa~lce
         ma ang device yet Invented.
         State, 5 X0. 451. This mtatemmnt from ihe
         suprewe Court of Missouri, is in keeping
         with generml experlenoeand would oertmwY
~tmwable 11.0.Fhvo~,    "a&a 9


         be admitted by all men.,without proof,
         argument OF diecourse.
          "Since it 1s agalwt the law to play cards,
    VhOther  vlth 6~ VithOUt 8hkO8, in any plae0,
     8aVe a private rerldenae that 18 not G-rhlJ
    re8orted to for the purpO80 Of gaming, it 18,
    therefore,both alsar and elementary th&t the
    aorporatloncould not be chartered for a purpore
    that va8 not lavful. 146 C.J., p. 126, para.
    119.
         "It 18 contemplatedby the lav that th8 uor-
    poratlon, if a aharter vere granted, rhould have
    a plaoe of bU8inO88. Artiole 1304. Ordlnarlly,
    thi8 plaoe vould be the headquarter8of the 'olub.'
    It would be here that the wmber8  would usually
    wet and play bridge, yet thf8 vould be unlavful,
    and in 8trlot legality, the lav could not and
    vould not countenanceit, Should it be argued that
    bridge vould only be played ln private home8,
    ooauplud by a family, then there vould~be no nued
    vhst8oeVer fOF a OOFpOZ'atiOXLA8 ha8 bOOn 8talad,
    It hae long been a departnentalmale to not grant
    dl6l't&8 8Uoh a8,the One IllQlle8tlOiLUO kWv Of
    no exoeption to the male and have bum unable to
    find any oa8e that vould 8aaation the granting of
    a ahar$er, 8uah a8 the one applied for, under Tern8
    lav.'
           The pwO8e  ohl8e  Of th8 pX’OpO8Ud~O~O~atiOll    8tate8
that t&i wetlngm of the olub vi11 bo held at 703 Rluhmond Road,
8ou8ton, Texa8, or at the XW8ldenoe8 of other member8 of said
alub a8 the member8 my frondties to time determine and that
aards will be played at 8aid plaoe8. Said JNl’pO88    daU8e  do08
not dleeloae whether or not 703 Riahmnd Road 18 a prfVatS re8i-
dews oacupled by a family nor da08 it di80108e vhether or not
the other re8idenceaare private %W8idenue8 occupied by fuilie8.
The playing of eard8 by 8aid propo8ed club member8 may or Day
not.be illegal, dependentupon all the fast8 and Oireum8tWe8
Lnrolved,under the rule8 of law laid davn above in thi8 opinion.
H6vever, this departmentvi11 not make artya88WEPtlOna8 t0
vhether or not 8aid alub vi11 or will not violate the 1aV vith
reibrenO8 t0 playing oard8 or gsaLing. !ht PWardl888 Of wh&h-
or or not the game8 played are played In ~1 illegal manner they
                                                               ” -- 314



&nwrable LO. nover8,    Page   10


o@tafly CawOt be ala88ed a8 "fMOOent 8pOrt8" Vithh       the
aantemplatlonof rubd. 9 of A&ials 1302, v.A.T.c.S.,     rupra.
           In Vim Of the foregOing authOrltie8,it 18 the
@nlon    of thlr departmentthat "bridge", "vhl8t" and other
card g8WS   are "g8WS" and aF0 Wt "ilUlOOWt  8pOFt8" Within
th8 oontemplatlonof rubdlvl8ion9 of Article 1302, V.A.T.C.S.,
8upra, and that said proposed charter &mild  be  ref'u8edby
tlm Seoretary of State.

                                    Your8 very truly
                                ATTORHBY ORRHFUL   OF l'EXAS




             QPROVEDNOV 15, 1940

              u/7%-M&
              ATTORNEYGENERAL OF TEXAS
