Untitled Texas Attorney General Opinion ( 1985 )

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:
p. 1555
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.
p. 1556
‘. ’
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
p. 1557
HonorableStan Schlueter- Page 6 (JM-341)
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin,Chairman
Colin Carl
Susan Garrison
Tony Guilloty
Jim Hoellinger
JenniferRiggs
Nancy Sutton
Sarah Woelk
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