Honorable Fred T. Porter
County Attorney
Kaufman County
Kaufman, Texas
Dear Sir:                   Opinion Ro. O-1819
                            Re: Whether "Qu1z.sNight"
                               ~,,~.~,of'
                                    Kaufman Theatre
                                 constitutesa lottery.
          We have'forreply your letter of January 20,
1940, requestingthe opinion of this department as to
whether or not the following scheme constitutesa lot-
;zr;%as 1s made unlawful by the Penal Code of this
     . We quote from your letter:
          "A party here in this County Is contem-
     plating the operation of a !Qulzz Night', as
     will be described here; and I have given the
     opinion that it Is a lottery. I would appre-
     ciate an opinion from your office as to
     whether same is a violation of the lottery
     laws of Texas. It will be operated as follows:
          "Personswho attend will be charged $.25
     for admlsslonand will be privilegedto submit
     a question to be answered on the program.
     Each person will be given a ticket on which
     there till be a stub, with number correspond-
     ing on the stub and the ticket. The stub will
     be dropped Into a box,'and the ticket retained
     by the person. The questions submitted by the
     customers will be signed by the customer and
     dropped Into a box. The one In charge of the
     program ~111 reach Into the box where the ,ques--
     tions':havebeen placed and draw therefrom a:~.
     question; and then draw a stub from the box
     Into which such stubs have been placed, and
     the person who has the number that corresponds
     with the stub wFl1 then be given an opportun-
     ity to answer the question. If he succeeds In
Hon. Fred T. Porter, page 2   (o-1819)


     answering the question correctly,then he
     will be given a prize donated by one of
     the merchants who Is lnterested In the
     matter as an advertising scheme. To the
     person whose question is used, there wlll
     be paid $1.00."
          Section 47 of Article III of the Constitution
of Texas reads:
          "The Legislature shall pass laws pro-
     hibiting the establishmentof lotteriesand
     gift enterprises In this state, as well as
     the sale of tickets in lotteries,gift en-
     terprlses or other evasions Involvingthe
     lottery principal,established or existing,
     In other states."
          Pursuant to such command the Legislaturepassed
Article 654 of the Penal Code, which reads as follows:
          "If any person shall establish a lot-
     tery cr dlspose of any estate, real or per-
     sonal, by lottery he shall be fined not less
     than One Hundred ($100) Dollars normore than
     One Thousand ($1000) Dollars; or If any per-
     son shall sell.,offer for sale or keep for
     sale any tickets or part tickets In any lot-
     tery, 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 9. W. (2d) 695, (Tex. Sup. Ct.,), the court said:
          "The State Penal Code does not define a
     lottery, but our courts have Interpretedit
     ln accordance with public usage, to mean a
     scheme or plan which provides for a distrlb-
     tlon of plzes by chance among those who have
     paid, or agreed to pay, a considerationfor
     the right to participatetherein. 28 Tex.
     Jur. p. 409, Sec. 2, and cases clted In the
     notes."
          This department has on several occasions passed
on the question of what constitutesa lottery, holding In
Hon. Fred T. Porter, page 3   (O-1819)


         (1) Opinion O-428 to Honorable Clint A.
    Barham, County Attorney, Erath County,.dated
    April 26, 1939, that a number system used by
    a theatre where each seat In the theatre Is
    numbered and a ticket Is selected or drawn
    from a number of tickets containingall the
    numbers on the seats and a money award or
    other thing of value is given to the person
    sitting in the seat that has a corresponding
    number with ths number drawn Is a "lottery"
    and the operationthereof Is a violation of
    Article 654 of the Penal Code.
          (2) Opinion O-967 to Honorable Tom Sea
     County Attorney, Potter County, dated June 11',
     1939, that a scheme whereby, In substance,a
     theatre owner gives a prize to some patron of
     the theatre present after a drawing from which
     some patron's automoblle license number may be
     selected, under the facts presented, consti-
     tutes a violation of the lottery laws of this
     state.
         (3) Opinion O-1174 to Honorable Robert S.
    Cherry,.CountyAttorney, Basque County, dated
    August 10, 1939, that It is a violation of the
    law for the merchants of a given town or com-
    munlty to give their customers tickets with
    each purchase of merchandise from them, which
    tickets are good for chances upon merchandise
    or money given away at drawings, held periodl-
    callg In the said town or community.
          (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 violation of Ar-
     ticle 654 of the Penal Code of this state.
          (5) Opinion O-1329 to Honorable Jack Borden,
     County Attorney, Parker County, dated September
     8, 1939, that a scheme whereby, In substance, a
     theatre buys the fingerprintsof a citizen of
     the community by selectlon of one fingerprint
     from the flies of the theatre, Is a violation
     of the lottery laws of this state.
Hon. Fred T. Porter, page 4   (O-1819)


          (6) OplnFon O-1336 to Honorable Paul T.
     Bolt, Count Attorney, Travis County, dated
     September 15 , 1939, that a scheme whereby,
     In substance,a "suit club" gives credits In
     trade to winning contestantsfor completing
     a sentence, etc., constitutesa violation of
     the lottery laws of this state.
          (7) Opinion O-1789 to Honorable Andrew
     Patton, District Attorney, Dallas County,
     dated December 22, 1939, that a theatre pro-
     gram featuring the "DoctorI. Q." radio
     broadcast over a network Is not a violation
     of the lottery statutes of thls state.
          In the case of Griffith Amusement Company vs.
Morgan, 90 9. W. (2d) 844, It was held that the elements
essential to constitutea lottery are (1) a prize In
money or thing of value, (2) distributionby chance and
(3) payment, either directly or Indirectly,of as;;l;;;;
considerationfor the chance to win the prize.
City of Wink vs. Griffith Amusement Company, supra; Feath-
erstone vs. IndependentService Station Assoclatlon 10
S. W. (2d) 124; Peak vs. Unlted States, 61 Fed. (2dj 973;
Grant vs. The State, 112 S. W. 1068. In State vs. Randall,
41Tex. 296, and Holman vs. The State, 47 S. W. 850, It
was held that any scheme for the dlstrlbutlonof 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
lotterles.
          Xe believe that the essential elements of a lot-
tery are presented by the facts set forth In your letter.
The theatre provides a fund or prize of $1.00 for those
patrons fortunate enough to have thelx questlons selected,
and llkewlse,a prize is provided by the merchants for
those patrons of the theatre correctly answerlng questlons.
The prize element Is present. Moreover, a drawing Is made
and the chance element occurs. Only the patrons whose
stubs have been drawn,and only patrons whose questions
have been drawn, are eligible to receive prlses. Moreover,
patrons must be present In the theatre when their names
are drawn or must have purchased tickets In order to partl-
clpate In the prizes by having their questions selected or
by being called upon to answer a questlon that has been
selected;and so, lndlrectlg,furnishes considerationfor
Ron. Fred T. Porter, page 5   (O-1819)


the chance. See City of Wink vs. Griffith Amusement Com-
paw, supra.
          The theatre scheme set out In your letter Is
similar to the scheme set forth In Oplnlon o-1200, dated
August 12, 1939, which was held to constitutea lottery
and for the reasons set forth In that opinion and under
the authorltles set out in thls opinion, you are respect-
fully advised that It is the oplnlon of this department
that a theatre operator oonductlngthe scheme described
In your letter would be uilty of operating a lottery as
prohibitedby Article 65$ of the Penal Code of Texas, 1925.
                                    Yours very truly
                               ATTORNEYGENERALOFTEXAS

                               By    /s/Walter R. Koch
                                        Walter R. Koch
                                             Assistant


                               By    /s/James D. Smullen
                                        James D. Smullen
JDS:jm:mjs
APPROVED JAN 27, 1940
/s/ Gerald C. Mann
ATTORNRYGFJVERALOF TEXAS
