Case Information
*1 T.HEA~ORNEY GENERAL OF TEXAS
CaRAm c. wan
ie
P”“““” GIPIN=-=
Honorable Holvey Villlemn Opinion Bo. O-2309
Criminal District Attorney Re: Whether or not prise scheme of Waco, Taxes theetre constitutes Deer Slrr
Thin will eckooa&dge receipt of$hnr letter of April 30, 1940, requ&ting an opinion of-thir department ee to whether not a prize a&em ,of e loeal~heatre, siriler to the,"Pot of Guld" radio program, conatltutar e lottery mch,se ia mede un%wfulby Article 654 of the !. penal CodB. The p~ia~dercr1bed~l.u your letter.,86 eolJ.owe~
‘~ ‘The local showo'propoee to have a wheelahich they rpln and it will etop -'a certain number which all1 Indicate a certain page In our local city directorJI, and they will again spin the wheel aad it wtll stop et a certain lw on said page, and the naae ep+earing on that line will receive e ,ceeh prim. The theeter~aill attempt to call the number and eleo will announce the name from a loud apeeker et their theater : here In Yaco, eeid annouqcement to be heard on the down town city streets, end If the party receZving the phone cell ie~at home or hear6 the announce- ment over the loud speaker, he Is entitled to receive the prize. It la not neceeeery for thcrecelver of the prize to have purchaned a ticket at any of the theetere."
~Sectiox~47 ef-Article III of the Conetitutlon of Texan ,madsa 'Tha~Iag1nlatum~shal.l paea Lava prohibiting the eetebliahment of lotterle#'and gift entsrprlres in thlo State, as well ea the rale of tickets In lotterier,~gift enterprinee or other evaalone Involving the lottery principle, clltabliahed or existing, in other atetes.'
Purnuent to much command, the Leglalsture peeeed ATticle of the~Pena1 Code,~whlch reada ae followaI
;,:g ~:*If q-perron~ehall eetablleh:a~ lotteryo~~dlspime of any eetete;'real M pcr¨, bf he,rhs&l be finad aot.lelle than One Hnndrad ($lOO)~Dollarm'no~nore than One Thoumnd ($1,000) Dollare~ or if iny pereon #hell Bell, offer for eale or;keep for sale any ticket8 or pert tickets in any lottery, he shall be fined not lean thau Ten ($10) Dollere nor more then Fifty ($50) Dollars." (Ct. Cr. App. 1937), 112 6. W. (26) 725,
In Cole vs. State
the concurring opinion of Judge Eawkina etatee that8
Honorable Holvey Williams, page 2 (O-2309)
“There is not now, nor ever has been, an attempt in this state to define by statute what constitute0 e lottery. The term is defined Corpus Jurie, vol. 38, by the statutes of only e few of the states. p. 288, note 10, llatr only four, but reya ‘that ouch deflnitionr zeldom vary in rubatanco from tho.ee eatebllrhed by the courta. 1 Ezving no defl- nltlon In our Itatute, we murt reaort to the meaning given the term by popular usage an determined by the varlouz courtr. When that lr done, it lr cleer that three thlngr muat concur to errtablllh a thing 81 a lot- teryr (a) A prize or prizes; (2) the evard or diatrlbutlon of the prize or prizee by chance; (c) the payment either directly by the perticipantr of e coneideretlon of perti- clpeting. Texea Jur., vol. 28, p. 409, Q 2, deduces from our own ceaea tQe rule eteted, end it appears that in every case from our own court w&are a scheme has been denounced 88 a lottery that the three elements mentioned are ahown by the fecte to have been present. See Rendle v.
State, 42 Tex. 580; Grant v. State, 54 Tex. Cr. R. 403, ll2 S. W. 1068, 21 L. R. A., Iy. S., 876, 130 Am. St. Rep. 897, 16 Ann. Cee. 8441 Prender- gest YE. State, 41Tex. Cr. R. 358, 57 S. Y. 850; Holomau v. State, 2 Tex. App. 610, 28 A~I; Rep. 439, and other Texee ceeea cited in Texes Jur., zupre . The 8ame r)lle demanding the presence of the three elemente in 17 Ruling Case Law, p. 1222, and 38 Corpue named will be found ateted Jurie, p. 286, with innmreble supporting ceaea cited under the text in each of maid rolumen."
Az atated in City of Wink VII. Qriffith Amueement Cornpang, (Tex.
sup. ct. lg36), loo s. w. (26) 695: \
“An analysis of this provision chows that the framers of the Conatltution condemned in emphatic terma the eetabllzhment and operation in this state of (a) ‘lotteries,’ (b) ‘gift enterprises,’ and (c) ‘other evasions involving the lottery principle.’ Lotteries only have been urohlbited br the Penal Code in accordance with the constitutional man- &e. tGiftVenterprisesf and ‘other evasions involving the lottery prin- ciple* nevertheleaa remain and stand condemned by the Con&it&ion It Is hardly neceesery to the state 88 being against public policy.
argue that the ‘Bank Hight’ plan of the defendant in error, if not e 16 et the very leant a ‘gift enterpriee involving the lottery principle, 1 axd obviously an evasion of the lottery lawa of the state.
That ‘gift enterprleez’ ere a form of lottery eveeion ia 80 well known that courte take judicial knowledge of the plan. 38 C. J. p. 296, § 14~ Stete v. Bader, 2 4 Ohio H. P. (R.S.) 186~. Moreover, ‘gift enter- prl6es’ were well known in this state when the Constitution of the atete in 1875 and adopted in 1876. State VI. Rankle, 41Tex. was formulated 292; Randle VII. Stete, 42 Tex. 580. In the argument in favor of the in Randle v. State, 42 Tex. 580, q upre, distinguished appellant counsel for the appellant in that case argued that ‘gift enterprises’ were so well known ‘en almost to be judicially proven.‘”
Honorable Holvey Williams, page 3 (O-2309)
It le clear rrw ypur letter that et leant txo of'the element8 emsentlal to conntltute a lottery are prone&. A prire lrr the recipient of tha prize 1s Gets-8 by chance. letheE?:lZd ment, "the payment either directly indirectly by the part~clpantr a conrideratlon of partlclpeting,* alro preb entt We bcllere that thir element lr minrlng.
Ho payment aither directly Is deaan&ed of the recipient by the donor of the prize) nor, from the fact! etated, do we mee any material lndueewnt to patronize the theetre. Each mubrcrlber l?z the telephone directory haa en equal opportunity to win the prlre, either br re~lnlng at him telephone, frequenting thone placea on the street6 of the city vbere he may hear the armouncement of~the &&ulng telephone number, or, if he derlres, attending the theatre. The element 16 not prerent. of caneideretlon
Ye do not mean to be underrrtood aa holding that the rche~
dercrlbed ln your letter does not fall within the purview of Section III the Conetltutlon. 47 of Article On the contrary, we believe that the scheme ia literally a "gift enterprlee" or "evr+an lnvolrlng the lottery principle" of the type which is condemued by the Conetltutlon.
Being c-d by the Conetltutlon, it is egalnmt the public policy of the State. If carried out by e corporation, its practical operation may be found to constitute an abuse of the corporate franchine. city of Wink ve. Griffith Amueement Company, supre. In the Penal Code, how- ever, the Iagialature hen seen fit to carry out the conrtitutionalman- date only to the extent of prohibiting lotteries, end we hold that this schew doe8 not constitute
Verytruly youris AppRonm MY 23, A!rroFinEY GBNERAL OF TEXAS /a/ Gerald C. lknn
By /e/ Walter R. Koch Walter R. Koch ATTORlIEY GEHERALOFTEXAS Aaoi~tant By /a/ S8mee.D. +&lea J-e D. Suu.llen JDS/O+l APPROVED OPINION CoMHITTE& BY /I/ BWB .
CHAIRMAW