Untitled Texas Attorney General Opinion ( 1968 )

January 4, 1968
Hon. Henry Wade Opinion No. M-176
District Attorney, Dallas County
Dallas County Government Center Re: Whether the driving
Dallas, Texas 75202 into a service station
by a person, who may or
may not make a purchase
and who is given a free
card which is distributed
by the station entitling
the holder to win a
prize, if by chance he
thereby becomes a
recipient of a similar
card, constitutes a
consideration for the
prize, so as to .be in vio-
lation of the lottery
statute, Article 654,
Vernon's Penal Code.
Dear Sir:
Your opinion request on the above captioned subject,
refers to the memorandum brief attached thereto for a de-
tailed description of the questioned "give away" plans used
by various oil companies. It is stated in such brief that
the plans used by the various companies are substantially
the same and the "dino dollars" plan is presented as an
example of the other plans used in Texas. This example is
as follows:
"When a customer comes into a Sinclair
station, he is furnished a "Dino Dollars" card.
The bottom half of the card has to be rubbed
gently with a coin in order to be read. Each
card will give a dollar amount along with the
statement, "Drive With Care". Any customer
or person who gets two cards which contain
the same dollar amount and which complete
the other half of the slogan, "And Buy Sinclair",
is paid the face amount shown on the cards.
The cards are not distributed at any location
other than at Sinclair stations. It is not
necessary for the customer to make a purchase
to get a card."
-au-
Honorable Henry Wade, page 2, (M-176)
It is settled in this state that three elements are
essential to constitute a lottery within the purview of
Article 654, Vernon's Penal Code, viz:
(1) A prize or prizes.
(2) An award or distribution c.'.a prize or prizes
by chance, and
(3) Payment, either directly or indirectly, by
participants of a consideration for the right
or privilege of participating.
The authorities have heretofore been cited and reviewed
by this office in Attorney General's Opinion C-619 (1966) and
it is not necessary to repeat them here. In most schemes or
programs of the type here presented, the first two elements
of a lottery, are normally present, and the paramount question
usually presented is the determination of the third element,
i.e., whether there is payment by the participants of consideration,
either directly or indirectly, for the right or privilege of
participating. In view of the language of the opinion in
Brice v. State, 242 S.W.Zd 433 (Tex.Crim. 19511, and Attorney
General's Opinion M-67, it seems clear that any such program
providing that anyone may participate without the necessity
of a purchase, and given reasonable opportunity to register
or otherwise become eligible, does not constitute a lottery
as that term is defined in Article 654.
Since these cards are available at each of the participating
stations without charge, it is our opinion that the reasoning
in Brice v. State, supra, applies and that the plans as sub-
mitted are not lotteries.
SUMMARY
The "give away" plans used by oil companies
in distributing free cards from their service
stations entitling the holder to win a prize,
conducted in accordance with the facts stated,
do not constitute lotteries within the purview
of Article 654, Vernon's Penal Code.
Y,&s very truly,
General of Texas
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’
1
Honorable Henry Wade, page 3, (M-176)
Prepared by R. L. (Bob) Lattimore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Cokhairman
W. V. GeDPert
Robert O%n
Malcolm Quick
Larry Craddock
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
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