Texas Constitution:Article III, Section 47 and Texas Constitution:Article III, Section 44: Difference between pages

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{{DISPLAYTITLE:Article III, Section 47 of the Texas Constitution (''<small>"General Prohibition on Lotteries and Gift Enterprises; Exceptions"</small>'')}}{{Texas Constitution|text=As amended November 2, 2021:
{{DISPLAYTITLE:Article III, Section 44 of the Texas Constitution (''<small>"Extra Compensation; Unauthorized Claims; Unauthorized Employment"</small>'')}}{{Texas Constitution|text=Adopted February 15, 1876:


'''(a) The Legislature shall pass laws prohibiting lotteries and gift enterprises in this State other than those authorized by Subsections (b), (d), (d-1), and (e) of this section.'''
'''The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of the same; nor grant, by appropriation or otherwise, any amount of money out of the treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the State, unless authorized by pre-existing law.'''
 
'''(b) The Legislature by law may authorize and regulate bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs. A law enacted under this subsection must permit the qualified voters of any county, justice precinct, or incorporated city or town to determine from time to time by a majority vote of the qualified voters voting on the question at an election whether bingo games may be held in the county, justice precinct, or city or town. The law must also require that: (1) all proceeds from the games are spent in Texas for charitable purposes of the organizations; (2) the games are limited to one location as defined by law on property owned or leased by the church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs; and (3) the games are conducted, promoted, and administered by members of the church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs.'''
 
'''(c) The law enacted by the Legislature authorizing bingo games must include: (1) a requirement that the entities conducting the games report quarterly to the Comptroller of Public Accounts about the amount of proceeds that the entities collect from the games and the purposes for which the proceeds are spent; and (2) criminal or civil penalties to enforce the reporting requirement.'''
 
'''(d) The Legislature by general law may permit charitable raffles conducted by a qualified religious society, qualified volunteer fire department, qualified volunteer emergency medical service, or qualified nonprofit organizations under the terms and conditions imposed by general law. The law must also require that: (1) all proceeds from the sale of tickets for the raffle must be spent for the charitable purposes of the organizations; and (2) the charitable raffle is conducted, promoted, and administered exclusively by members of the qualified religious society, qualified volunteer fire department, qualified volunteer emergency medical service, or qualified nonprofit organization.'''
 
'''(d-1) The Legislature by general law may permit a professional sports team charitable foundation to conduct charitable raffles under the terms and conditions imposed by general law. The law may authorize the charitable foundation to pay with the raffle proceeds reasonable advertising, promotional, and administrative expenses. A law enacted under this subsection applies only to an entity defined as a professional sports team charitable foundation under that law and may only allow charitable raffles to be conducted at games or rodeo events hosted at the home venue of the professional sports team associated with a professional sports team charitable foundation. In this subsection, "professional sports team" means: (1) a team organized in this state that is a member of Major League Baseball, the National Basketball Association, the National Hockey League, the National Football League, Major League Soccer, the American Hockey League, the East Coast Hockey League, the American Association of Independent Professional Baseball, the Atlantic League of Professional Baseball, Minor League Baseball, the National Basketball Association Development League, the National Women's Soccer League, the Major Arena Soccer League, the United Soccer League, or the Women's National Basketball Association; (2) a person hosting a motorsports racing team event sanctioned by the National Association for Stock Car Auto Racing (NASCAR), INDYCar, or another nationally recognized motorsports racing association at a venue in this state with a permanent seating capacity of not less than 75,000; (3) an organization hosting a Professional Golf Association event; (4) an organization sanctioned by the Professional Rodeo Cowboys Association or the Women's Professional Rodeo Association; or (5) any other professional sports team defined by law.'''
 
'''(d-2) Subsection (a) of this section does not prohibit the Legislature from authorizing credit unions and other financial institutions to conduct, under the terms and conditions imposed by general law, promotional activities to promote savings in which prizes are awarded to one or more of the credit union's or financial institution's depositors selected by lot.'''
 
'''(e) The Legislature by general law may authorize the State to operate lotteries and may authorize the State to enter into a contract with one or more legal entities that will operate lotteries on behalf of the State.'''


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As adopted in 1876, this section read: "The Legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this State, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving the lottery principle, established or existing in other States." It has been amended seven times. Amendments were approved in 1980, 1989, 1991, 2015, 2017 (two), and 2021.
None.
 
The Texas Attorney General, in Tex. Att'y Gen. Op. [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2003/ga0103.pdf#page=8 GA-103] (2003), opined that: "To summarize, in approving the addition of subsection (e) to article III, section 47 of the Texas Constitution, Texas voters in 1991 did not intend to authorize the state to operate, or to contract for the operation of, 'lotteries' in the broad sense that it has been construed by the courts since the adoption of the 1876 constitution."


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* ''City of Fort Worth v. Rylie'', 602 S.W.3d 459, [https://scholar.google.com/scholar_case?case=2362665170562240558#p460 460-61] (Tex. 2020) (footnotes & citations omitted) ("For as long as the State of Texas has been the State of Texas, its citizens have elected to constitutionally outlaw most types of 'lotteries.' Contrary to the term's popular understanding, a 'lottery' includes not just contests involving scratch-off tickets and numbered ping-pong balls, but a wide array of activities that involve, at a minimum, (1) the payment of 'consideration' (2) for a 'chance' (3) to win a 'prize.' Since its ratification in 1876, our current constitution has affirmatively required the legislature to 'pass laws prohibiting' lotteries.")
* ''State ex rel. Dep't of Criminal Justice v. VitaPro Foods, Inc.'', 8 S.W.3d 316, [https://scholar.google.com/scholar_case?case=5023202089189260912#p322 322] (Tex. 1999) (citations omitted) ("In general, only persons authorized by the Constitution or a statute can make a contract binding on the State. All state officers' powers are fixed by law, and all persons dealing with them are charged with notice of the limitations on those powers. Only persons having actual authority to act on behalf of the State can bind the State in contract. The primary issue in this case is whether TDCJ, an agency of the State, had actual authority to bind the State by directly issuing purchase orders to VitaPro Foods.")


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* ''Tussey v. State'', 494 S.W.2d 866, [https://scholar.google.com/scholar_case?case=1098962787720458050#p869 869] (Tex.Crim.App. 1973) ("It is clear that these provisions of the Constitution were designed to require the passage of laws against the establishment of lotteries in various forms. . . . [T]he Legislature is likewise prohibited from indirectly doing so by way of exemption from criminal prosecution. See City of Wink v. Griffith Amusement Co., [] 100 S.W.2d 695, 700-702 (1936). It is clear that the Legislature was not authorized to exempt from the laws relating to lotteries the sale or drawing of a prize at a fair for the benefit of a church, religious society, veteran's organization, etc.")
* ''State v. Ragland Clinic-Hospital'', 159 S.W.2d 105, [https://texaslegalguide.com/images/159_SW2_105.pdf#page=3 107] (Tex. 1942) ("The plaintiff's contention that it had a right to contract with the employee of the Board because he had the apparent authority to make the contract on behalf of the State is unsound. Since the powers of all State officers are fixed by law, all persons dealing with them are charged with notice of the limits of their authority and are bound at their peril to ascertain whether the contemplated contract is within the power conferred. There is no occasion or excuse in such a case for indulging in presumptions or in relying on appearances.")
 
* ''City of Wink v. Griffith Amusement Co.'', 100 S.W.2d 695, [https://texaslegalguide.com/images/100_SW2_695.pdf#page=7 701] (Tex. 1936) ("If it be granted that the plan of defendant in error's 'Bank Night' was not a lottery because a charge was not made for the registration entitling one to participate in the drawing (and this is the only distinction which is here or could be made), then it clearly comes within the condemnatory terms of the Constitution, because it is a 'gift enterprise' involving the lottery principle, which the authorities hold is that principle by which something is to be given by chance. . . . Being condemned by the Constitution, it is against the 'public policy of the State.'")
 
* ''Panas v. Texas Breeders & Racing Ass'n'', 80 S.W.2d 1020, [https://texaslegalguide.com/images/080_SW2_1020.pdf#page=5 1024] (Tex.Civ.App.–Galveston 1935, dism'd) ("We do not think the certificate system of betting on horse races can be called a lottery, as that term is used in section 47, article 3, of our Constitution, which prohibits 'the establishment of lotteries * * * or other evasions involving the lottery principle, established or existing in other States.' The Legislature in enacting the certificate system of conducting horse racing did not consider such legislation a violation of our constitutional prohibition against conducting lotteries.")


* ''Prendergast v. State'', 57 S.W. 850, [https://texaslegalguide.com/images/057_SW_850.pdf#page=2 851] (Tex.Crim.App. 1899) ("The machine retained the major part of the common fund, else it could not be self-sustaining. Nor was this a game of perfect chance. The machine was automatically constructed in favor of the keeper, and a man might play (that is, put his nickel into the slot), and not win anything. Consequently there would be no prize distributed to him when he played it. Evidently there was some effort here in the proof to show a similarity between this and a raffle, but in our view the evidence showed a distinct difference.")
* ''Austin Nat'l Bank v. Sheppard'', 71 S.W.2d 242, [https://texaslegalguide.com/images/071_SW2_242.pdf#page=4 245] (Tex. 1934) ("By its express words the constitutional provision under consideration in no uncertain terms prohibits . . . . We interpret this to mean that the Legislature cannot appropriate state money to 'any individual' unless, at the very time the appropriation is made, there is already in force some valid law constituting the claim the appropriation is made to pay a legal and valid obligation of the state. By legal obligation is meant such an obligation as would form the basis of a judgment against the state in a court of competent jurisdiction in the event it should permit itself to be sued.")


* ''Barry v. State'', 45 S.W. 571, [https://texaslegalguide.com/images/045_SW_571.pdf 571] (Tex.Crim.App. 1898) (citations omitted) ("One of the witnesses testified that he had heard it called a 'Cheap John Board,' and also a 'Cheap John Wheel.' He said he would call it a 'Wheel of Fortune.' We are of opinion that these facts would constitute this a lottery, within the purview of article 373 of the Penal Code of 1895. If the section of article 5049, above quoted, was intended to license lotteries, then it is clearly unconstitutional and void. The legislature has no authority to license lotteries in Texas, and any attempt on its part to do so would be nugatory.")
* ''Rhoads Drilling Co. v. Allred'', 70 S.W.2d 576, [https://texaslegalguide.com/images/070_SW2_576.pdf#page=8 583] (Tex. 1934) ("Since none of the sections of the Constitution which have been cited forbids, either in terms or by necessary or reasonable implication, the changing or modifying of contracts with the state so as to reduce for a consideration executory obligations to the state, and since the decisions which have been discussed construe these sections of the Constitution as forbidding gifts, gratuities, or bounties, or the gratuitous releasing or extinguishing of obligations, [] chapter 120 in its necessary effect and operation as determined from its terms, is not unconstitutional.")


* ''Randle v. State'', 42 Tex. 580, [https://texaslegalguide.com/images/042_Tex_580.pdf#page=9 588-89] (1875) ("Mr. Bishop, in his Treatise on Statutory Crimes, shows, from his reference to numerous decisions of the various courts, that in nearly all the States of the Union, lotteries are prohibited, and those establishing them, or connected with their operations, are punished accordingly; and that the subterfuges by change of name, or plan of operations, have not availed the persons so concerned, as a defense to a prosecution; that the courts have seen through these evasions, and the law has been vindicated and fully enforced against the offenders.")
* ''State v. Wilson'', 9 S.W. 155, [https://texaslegalguide.com/images/009_SW_155.pdf#page=3 157] (Tex. 1888) ("The contractors, in this case, have suffered a misfortune in common with numerous other creditors of the state, who, during the years of a depleted treasury, were forced to place their warrants upon the market, and sell them at the best price that could be obtained. . . . Its warrants having been paid, [the state's] legal liability no longer exists. There is testimony to the effect that the governor of the state at the time of the transactions in question told the contractors to look to the state for the difference; but, it is too clear for argument that he had no power to bind the state in such a manner.")


* ''State v. Randle'', 41 Tex. 292, [https://texaslegalguide.com/images/41_Tex._292.pdf#page=7 298] (1874) ("In many States of the Union there is, as in our State Constitution, a prohibition against lotteries. The statutes of many of the States are in the like general terms as our statute against lotteries; and looking to the character of the act charged; it being simply a game of chance, and taking it in connection with the articles in the code against gaming, we are satisfied the law is not open to the objections presented. It is as descriptive of the offense as are the articles of the code prohibiting other kinds of gaming, and quite as descriptive of the of the offense as are the laws . . . .")
* ''State v. Moore'', 57 Tex. 307, [https://texaslegalguide.com/images/057_Tex_307.pdf#page=15 321] (1882) ("[I]f there be nothing in the laws evidencing a contrary intention, it would probably have to be held that an officer was not entitled to any compensation for such services as it is made his duty to perform, but for which no compensation is provided by law; but as we have already said, art. 257, R. S., does recognize the right of a county attorney to commissions on money collected by him for the state; it, however, fails to fix the rate of such commission, and until the legislature does so, neither the courts nor the interested party, nor any officer of the government, can fix it.")


|seo_title=Article III, Section 47 of the Texas Constitution ("General Prohibition on Lotteries and Gift Enterprises; Exceptions")
|seo_title=Article III, Section 44 of the Texas Constitution ("Extra Compensation; Unauthorized Claims; Unauthorized Employment")
|seo_keywords=Article 3 Section 47, state lottery, illegal gambling
|seo_keywords=Article 3 Section 44, Texas Legislature, ...
|seo_description=The Legislature is required to pass laws prohibiting lotteries and "gift enterprises" other than those authorized by this section.
|seo_description=The legislative power of Texas is vested in a Senate and House of Representatives.
|seo_image=Texas_Constitution_of_1876_Article_3.jpg
|seo_image=Texas_Constitution_of_1876_Article_3.jpg
|seo_image_alt=Article III: Legislative Department
|seo_image_alt=Article III: Legislative Department

Revision as of 14:58, July 25, 2023

Adopted February 15, 1876:

The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of the same; nor grant, by appropriation or otherwise, any amount of money out of the treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the State, unless authorized by pre-existing law.

Editor Comments

None.

—Attorney Steve Smith

Recent Decisions

  • State ex rel. Dep't of Criminal Justice v. VitaPro Foods, Inc., 8 S.W.3d 316, 322 (Tex. 1999) (citations omitted) ("In general, only persons authorized by the Constitution or a statute can make a contract binding on the State. All state officers' powers are fixed by law, and all persons dealing with them are charged with notice of the limitations on those powers. Only persons having actual authority to act on behalf of the State can bind the State in contract. The primary issue in this case is whether TDCJ, an agency of the State, had actual authority to bind the State by directly issuing purchase orders to VitaPro Foods.")

Historic Decisions

  • State v. Ragland Clinic-Hospital, 159 S.W.2d 105, 107 (Tex. 1942) ("The plaintiff's contention that it had a right to contract with the employee of the Board because he had the apparent authority to make the contract on behalf of the State is unsound. Since the powers of all State officers are fixed by law, all persons dealing with them are charged with notice of the limits of their authority and are bound at their peril to ascertain whether the contemplated contract is within the power conferred. There is no occasion or excuse in such a case for indulging in presumptions or in relying on appearances.")
  • Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242, 245 (Tex. 1934) ("By its express words the constitutional provision under consideration in no uncertain terms prohibits . . . . We interpret this to mean that the Legislature cannot appropriate state money to 'any individual' unless, at the very time the appropriation is made, there is already in force some valid law constituting the claim the appropriation is made to pay a legal and valid obligation of the state. By legal obligation is meant such an obligation as would form the basis of a judgment against the state in a court of competent jurisdiction in the event it should permit itself to be sued.")
  • Rhoads Drilling Co. v. Allred, 70 S.W.2d 576, 583 (Tex. 1934) ("Since none of the sections of the Constitution which have been cited forbids, either in terms or by necessary or reasonable implication, the changing or modifying of contracts with the state so as to reduce for a consideration executory obligations to the state, and since the decisions which have been discussed construe these sections of the Constitution as forbidding gifts, gratuities, or bounties, or the gratuitous releasing or extinguishing of obligations, [] chapter 120 in its necessary effect and operation as determined from its terms, is not unconstitutional.")
  • State v. Wilson, 9 S.W. 155, 157 (Tex. 1888) ("The contractors, in this case, have suffered a misfortune in common with numerous other creditors of the state, who, during the years of a depleted treasury, were forced to place their warrants upon the market, and sell them at the best price that could be obtained. . . . Its warrants having been paid, [the state's] legal liability no longer exists. There is testimony to the effect that the governor of the state at the time of the transactions in question told the contractors to look to the state for the difference; but, it is too clear for argument that he had no power to bind the state in such a manner.")
  • State v. Moore, 57 Tex. 307, 321 (1882) ("[I]f there be nothing in the laws evidencing a contrary intention, it would probably have to be held that an officer was not entitled to any compensation for such services as it is made his duty to perform, but for which no compensation is provided by law; but as we have already said, art. 257, R. S., does recognize the right of a county attorney to commissions on money collected by him for the state; it, however, fails to fix the rate of such commission, and until the legislature does so, neither the courts nor the interested party, nor any officer of the government, can fix it.")

Library Resources

Online Resources

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