Texas Attorney General Opinion: O-3500 Page: 2 of 4
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Hon. Joe P. Hatchitt, page 2 (0-3500)
principle, established or existing in other States."
Pursuant thereto the Legislature enacted Article 654
of the Penal Code of Texas which reads as follows:
"If any person shall establish a lottery or dispose
of any.estate, real or personal, by lottery, he shall be
filed not less than one hundred nor more than one thousand
dollars; or if any person shall sell, offer for sale or
keep for sale any ticket in any lottery, he shall be fined
not less than ten nor more than fifty dollars."
In the concurring opinion of Judge Hawkins of the
Court of Criminal Appeals of Texas in Cole v. State, 112 S.W.
(2d) 725, there appears the following fine analysis of what
constitutes a lottery under the laws of Texas:
"There is not now, nor ever has been an attempt in
this state to define by statute what constitutesa lottery.
The term is defined by the statutes of only a few of the
states. Corpur Juris, vol. 38, p. 288, note 10, lists
only four, but says 'that such definitions seldom vary in
substance from those-established by the courts.' Having
no definition in our statute, we must resort to the mean-
ing given the term by popular usage as determined by the
various courts. When that is done, it is clear that
three things must concur to establish a thing as a lottery:
(a) A prize or prizes; (2) the award or distribution of
the prize or prizes by chance; (c) the payment either
directly or indirectly by the participants of a consid-
eration for the right or privilege of participating.
Texas Jur. vol. 26, p. 409, 12, deduces from our own
cases the rule stated, and it appears that in every case
from our own court where a scheme has denounced as a
lottery that the three elements mentioned are shown by
the facts to have been present. See Randle v. State,
42 Tex. 580; Grant v. State, 54 Tex.Cr.R. 403 112 S.W.
1068, 21 L.L.R.A., N.S., 876, 130 Am.St.Rep. 697, 16
Ann.Cas. 844; Prendergast vs. State, 41 Tex.Cr.R. 358,
57 S.W. 850; Holoman v. State, 2 Tex.App. 610, 28 Am.Rep.
439 and other Texas cases cited in Texas Jur., supra,
The'same rule demanding the presence of the three ele-
ments named will be found stated in 17 Ruling Case Law,
p. 1222, and 38 Corpus Juris, p. 286, with innumerable
supporting cases cited under the text in each of said
volumes."
In Boatwright v. State, 118 Tex.Crim.Rep. 381, 38
S.W.(2d) 87, it was said:
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-3500, text, April 30, 1941; (https://texashistory.unt.edu/ark:/67531/metapth260731/m1/2/: accessed July 10, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.