Untitled Texas Attorney General Opinion ( 1961 )

E Y GENE
November 14, 1961
Honorable Bill Pemberton Opinion No. WW-1192
County Attorney
Hunt County Courthouse Re: Whether a proposed
Greenville, Texas advertising plan
would constitute a
violation of the
lottery laws, Article
654, Vernon's Penal
Dear Sir: Code?
You have requested an opinion as to whether a proposed
advertising scheme would be a violation of Article 654,
Vernon's Texas Penal Code. We quote from your description of
the game as follows:
"The proposed advertising scheme provides for
an advertising agency working through our local
Chamber of Commerce to contact various merchants in
our city and to collect from each merchant a set
fee whereby each merchant paying shall be eligible
to participate in the advertising scheme. After
each merchant has paid his fee he is given a book
of registration tickets that are numbered, all
tickets having different numbers.
Through advertising media the general public
is invited to come to the places of business of the
various participating merchants to register one time
only, free and without charge. There is no charge
whatever to register and the right to register is
not restricted in any manner, anyone being able to
register.
Periodically, the promoters of the scheme
visit the participating merchants and pick up all
registration cards and take the numbers from the
cards and stamp the numbers upon small individual
balls which balls are then placed in a cage type
container. Then the promoter draws from the cage
Hon. Bill Pemberton, Page 2 (WW-1192)
container 800 balls with numbers thereon and then
from a list prepared by use of the registration
cards obtains the names of the registrants corre-
sponding to the numbers. Then, these 800 names
are typed upon post cards in the form of invitations
and mailed to the 800 individuals inviting them to
appear free of charge, at a theatre on a designated
date at a specified time.
At the designated time and date the 800 balls
with numbers thereon theretofore drawn will be
placed in another cage container and three numbered
balls will be drawn from the wire cage. These three
numbers are checked against the list theretofore
prepared and the three names are to be called to the
audience of 800. If the parties whose names are called
are present they are allowed to participate in a
quiz type program whereby they are given an
opportunity to choose a category they might be
familiar with in order to answer questions pro-
pounded to them in such category. If he or she
correctly answers the questions the participant
receives a prize, such as a free trip or cash money.
If the participant whose name is called is
absent then, in that event, the promoters award to
him a consolation prize in a lesser amount than the
prize he would have won had he been there and correctly
answered a question.
It might be added that the cost of the entire
operation
--. is derived from the fees paid to
promoters by the participating merchant%-?--@mphasis
ZdFd.)
It is further pointed out in your request that "abso-
lutely no prerequisite requirement of purchase from any
merchant in order to participate or register is required."
Article 654, Vernon's Penal Code, prohibits the establish-
ment and operation of a lottery, and the disposition of
property by lottery, but does not define a lottery. The courts
have, therefore, adopted a definition based upon the general
understanding of the term "lottery" and it is well established
that three things must occur to constitute an advertising
Hon. Bill Pemberton, Page 3 (WW-1192)
scheme a lottery and these are: (a) a prize or prizes;
(b) the award or distribution of the prize or prizes bjj
chance; (c) the payment,either directly or indirectly,
by the participant of a consideration for the right or
privilege of participating. Cole v. State,112 S.W. 2d
Crim. 1937), Brice v. State, 242 S.W.2d 433,
ex. Crim. 1951), Smith v. State, 12'1S.W. 2d 297, (Tex.
Crim. 1939).
It is obvious that the proposed plan that you have
placed before us has the first two elements, to-wit:
(a) a prize or prizes, and (b) the element of chance,
because prizes are awarded and the persons who are allowed
to participate in the "quiz contest" are chosen purely by
chance.
The only question is whether or not under (c) there is
a consideration present which would constitute the plan a
lottery. Please note that the consideration must 'bepaid
by the participant.
Does the requirement that the participant go to the
store and register constitute the payment of a consideration?
The Court of Criminal Appeals in Brice v. State, holds that
it does not; In fact the Brice case is decisive of the
question before us.
Quoting with approval from an Alabama case the Brice
opinion states:
"The fact that the holder of the drawing
expects thereby to receive, or in fact does
receive, some benefit in the way of patron-
age or otherwise, as a result of the draw-
ing, does not supply the element of con-
sideration paid by the chance holder for
the chance...."
...if it be entirely unsupported by any
valuable consideration moving from the taker,--
there is nothing In this mode of conferring
it which is violative of the policy of our
statutes condemning lotteries, or gaming....'"
As to whether going to the store and registering constitutes
a consideration the opinion further says:
Hon. Bill Pemberton, Page 4 (WW-1192)
'"Underthe authorities mentioned, we must
conclude that in the absence of any character
of favoritism shown to customers, the lottery
statute, Art. 654, P. C., is not violated under
a plan whereby a merchant awards a prize or
prizes by chance to a registrant without
requiring any registrant to be a customer or to
purchase merchandise or to do other than to
register without charge at the store, though
the donor may receive a benefit from the drawing
in the way of advertising."
The opinion is made definite and positive by Judge
Beauchamp in overruling the motion for rehearing wherein he
says :
"The crux of the opinion lies in the third
section, or section "c", reading as fOllOWS:
"the payment either directly or indirectly by
the participants of a consideration for the
right or privilege of participaing."
The "consideration" in this case which moves
from the parties participating in thendrawing
for the prize, or prizes, to appellant is
entirely fanciful. It is not sufficiently
substantial to be classed as a reality."
Our opinion is in accord with Attorney General's Opinion
NO. m-652. Our holding herein is limited to the stated
fact situtation.
SUMFIARY
The proposed advertising plan which you describe
is not a lottery because the third element essential
to a lottery, viz., the payment of a consideration by
the participant is absent. Prior Attorney General's
Opinion No. ~-652.
Yours very truly,
WILL WILSON
WRS:lp
Hon Bill Pemberton, page 5 (WbJ-1192)
APPROVED:
OPINION COMMITTEE
W V. Geppert, Chairman
J C Davis
J, T. Walker
T. B, Wright
REXUEWED FOR THE ATTORNEY GENERAL
BY; Howard W. Mays