Attorney General Opinion JM-0341

The Attorney General of Texas JIM MATTOX Attorney General August 14. 1985 Supreme Court BuildinQ P. 0. BOX 12546 Austin, TX. 76711-2546 5121475-2501 Telex 9101674.1387 Telecopier 512/475-0266 714 Jackson, Suite 709 Dallas, TX. 75202.4506 214l742-6944 Eouorable Stan Schlueter chairman Ways and Means Coamittee Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769 Dear Representative Schlueter: opinion No. JR-341 Re: Legality of foreign lottery under Texas law You have aubaitted two advertisements for lotteries held in foreign countries, me in West Germany and 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 advertisements violate 915/533-3464 any law. 1001 Texas, Suite 700 Each advertisement directs the participant to send his money and Houston, TX. 77002-3111 order form ~to the i'oreigu address stated therein. The lottery sends 713/223-5886 tickets, a drawing schedule, or other informatiqn to the participant. The drawing takes p:.ace in the lottery's home country and notification is sent to winners. 806 Broadway, Suite 312 Federal prohibitions against transporting or Lubbock, TX. 79401-3479 mailing lottery tlcketa, advertisements of lotteries and other 606/747-5238 materials related to lotteries do not apply to transporting or mailing 4309 N. Tenth. Suite B McAHen, TX. 76501-1665 5121662-4547 200 Mai” Plaza. suite 400 (2) to ai addressee within a foreign country of equipment tickets, or material designed to be used within that foreign country in a lottery which is authorized by the law of that foreign country. ;;;g;;;;vTX. 76z052797 18 U.S.C. 11307(b)(:!). The German lottery is described in the advertisement as a state A” Equal OpportUnityI lottery with prizes guaranteed by the German government. We assume Alflrmative Action E~Wovn* for purposes of tt.is opinion that both lotteries are legal where conducted. The Texas Constitution provides that "[tlhe Legislature shall pass laws prohibiting lotteries and gift enterprises in this State." Tex. Const. art. III:, 047a. The statutes prohibiting lotteries are found in chapter 47 of the Penal Code. The relevant provisions include the following: p. 1553 , Donorable Stan Schlueter - Page 2 (JM-341) Section 47.01. Definitions In this chapter: (1) 'Bet' means an agreement that, dependent on chance even though accompanied by some skill, one stands to kin or lose something of value. . . . (2) 'Gambling place' means any real estate, building, room, ter.t, vehicle, boat, or other property whatsoever, 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 conducting of a lottery or -- the playing of gambling devices. . . . . (5) 'Gambling paraphernalia' means any book, instrument. or app.%ratua by means of which bets have been or may be recorded or registered; any record, ticket, certificate, bill, slip, token, writing, scratch sheLet, or other means of carrying on bookmaking, wagering pools, lotteries, numbers, policy, or similar games. (6) 'Lottery' ueans any scheme or procedure whereby one or more prieea are distributed by chance among perscns who have paid or promised consideration for EL chance to win anything of value, whether such scheme or procedure is called a pool, lottery, xffle. gift, gift enterprise, sale, policy game, or some other name. 147.02. Gambling (a) A person ccmmita an offense if 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. Gambling I'romotion (a) A person c-its an offense if he intentionally or 'knowingly does any of the following acts: p. 1554 , Honorable Stan Schlueter - Paf;e 3 (JM-341) (1) operater; or participates in the earnings of a gar~bling place; (2) receivers,, records, or forwards a bet or offer to bet; (3) for gain, becomes a custodian of anything of value: bet or offered to be bet; (4) sells chances on the partial or final result of or on ,the margin of victory in any game or contest Ior on the performance of any participant in zany game or contest or on the result of any apolitical nomination, appoint- ment, or electicn or on the degree of success of any nominee, .ippointee, or candidate; or (5) for g&u, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery. 147.04. Keeping a :ambling Place (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 property whatsoever owned by him or alder his control, or rents or lets any such proprxty with a view or expectation that it be so used. 147.07. Possession of Gambling Paraphernalia (a) A person commits an offense if. with the intent to further gambling, he knowingly owns, manufactures, tranrifers commercially or possesses gambling paraphernalia. (Emphasis added). The chapter 47 provisions on lotteries must be read together with section 1.04 of the Penal sode, which establishes the territorial jurisdiction of Texas over criminal offenses: (a) This atatc! has jurisdiction over an offense that a perst?n commits by his own conduct the conduct of another for which he is Zninelly responsible if: p. 1555 Honorable Stan Schlueter - Page 4 (JM- 34.1) (1) either the conduct or a result that is an element of the. offense occurs inside this state; (2) the con&uct outside this state consti- tutes an attempt to commit an offense inside this state; (3) the coninct outside this state consti- tutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurli inside this state. . . . The Texas Supreme Court h,ss stated that a lottery conducted in a foreign country did not viol,lte the gambling statutes of Texas. In Caatilleja v. Camero, 414 S.V.2d 424 (Tex. 1967). the Texas Supreme Court considered an agreement made in Texas to share any proceeds that might be won in the Mexican National Lottery. The jointly owned ticket was purchased in Mexico. In considering whether 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!r violated nor aided in the violation of any Isming statute of Texas. The only other jurisdic:tion involved was Mexico. In Mexico the purpose XE the contract had the express approval of the MIzxican government in that the Mexican Eovernment has a revenue interest in the lottery.- Thus the agreement was to do a lawful thing -- participa,;? in the National Lottery of Mexico, in a lawful-manner -- by going to Mexico. (Emphasis added). 414 S.W.2d at 426. See also ,Crutchfield v. Rambo, 86 S.W. 950 (Tex. Civ. App. 1905, writ- Caatilleja v. Camero was decided prior to the 1973 revision of the Penal Code, which made sullstantive changes in the criminal law of Texas. See Sharpe, Introduction to 1973 Revision Texas Penal Code, 1 Penal CodeVII; Attorney General Opinion H-204 (1974). Moreover, it did not involve advertising of the foreign lottery in Texas. Finally, the participant in the lottery traveled to Mexico to purchase the lottery tickets. We will therefore consider whether the territorial jurisdiction of this state extends to any activities of the foreign lotteries that would violate Penal Code provisions against gambling. See Penal Code 01.04. - The foreign lotteries 11~1 not possess gambling paraphernalia In Texas or keep a gambling place in Texas. See Penal Code 447.04. - p. 1556 ‘. ’ Ronorable Stan Schlueter - Paj;e 5 (JM-341) 47.07. Nor do they commit %n Texas any of the acts of gambling promotion described in subsect:lons (1) through (4) of section 47.03(a) of the Penal Code. Subsection (5) of section 47.03(a) makes it an offense to promote any lottery or offer to sell a lottery ticket. It is possible that the advertisements you have submitted to us could be evidence of lottery promotion in Texas or offering lottery tickets in Texas. However, the mere presence of the advertisements in Texas does not prove a violation of secf:i.on 47.03(a)(S). We have no information on the foreign lotteries' role, if any, in transmitting the advertise- ments to Texas. Moreover, this matter raises issues of free speech rights and federal power over commerce with foreign countries. See, a, Martin v. United States, 389 F.2d 895 (5th Cir. 1968) (18 U.S.C. 11084, which prohibits trrn~smission of wagering information in interstate commerce, does not. violate First Amendment). We cannot attempt to resolve these important issues on the meager facts before US. Whether a lottery held in a foreign country can violate Texas Penal Code section 47.03(a)(5) by advertising and ofl'ering lottery tickets in Texas involves fact questions. Very truly yo s J-l& . JIM MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICRARDS Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Cosunittee Prepared by Susan L. Garrison Assistant Attorney General p. 1557 Honorable Stan Schlueter - Page 6 (JM-341) APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guilloty Jim Hoellinger Jennifer Riggs Nancy Sutton Sarah Woelk p. 1558