Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 13,2004
Mr. C. Tom Clowe Jr. Opinion No. GA-0248
Chair, Texas Lottery Commission
Post Office Box 16630 Re: Whether the Bingo TVNet Corporation may
Austin, Texas 78761-6630 legally conduct BingoTV within the State of Texas
(RQ-0198-GA)
Dear Mr. Clowe:
You ask whether Occupations Code chapter 2001, which provides for regulating bingo,
authorizes or prohibits the operation in Texas of BingoTV’ as described by the Bingo TVNet
Corporation in the letter attached to your request? You also ask whether the activity described by
the Bingo TVNet Corporation is a legal “sweepstakes” under Texas law. See Request Letter, supra
note 1.
The Bingo TVNet Corporation writes that “BingoTV is a broadcast promotion sponsored by
the Bingo TVNet Corporation, and presently delivered via Dish Network channel 104,” available
free of charge to all Dish Network subscribers. Bahr Letter, supva note 2, at 1. Persons not
subscribing to Dish Network may play online simultaneously with persons receiving the broadcast.
Id. at 2. “There is no purchase necessary to play BingoTV. Members ofthe public can obtain game
cards without charge by sending a stamped self addressed envelope to a designated post office
box.” Id. at 1. “Viewers mark their cards with pennies or other household items.” Id. The letter
from the Bingo TVNet Corporation further states:
BingoTV will conduct the [g]ame using 99 numbered balls, which are
selected randomly from an approved bingo device. Viewers who
successfully complete the designated pattern call a toll free number ”
within two minutes after having achieved “bingo”. The bingo is
validated by computer using aunique serial number which appears on
the cards’ face. . Multiple winners will each win the same prize.
‘Letter from Mr. C. Tom Clowe Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Texas
Attorney General (Mar. 17, 2004) (on tile with Opinion Committee, also availableaf http:liwww.oag.state.tx.us)
[hereinafter Request Letter].
‘Letter from Mr. Ira Bahr, President, Bingo TVNet Corporation, to Mr. William Adkins, Director, Bingo
Division, Texas Lottery Commission (Feb. 3, 2004) (attached to Request Letter) [hereinafter Bahr Letter].
Mr. C. Tom Clowe Jr. - Page 2 (GA-0248)
Once the first bingo is validated, no further numbers will be called.
Various cash and merchandise prizes will be offered from game to
game and the prizes will vary in nature and value over time.
Online winners will also call the toll free number to register their
claims of bingo.
Id. at l-2.
Information from BingoTV’s intemet site explains the promotional aspect of the bingo
broadcast as follows:
Each of our Bingo Games is title sponsored by one key advertiser.
. In each case, the game revolves around the advertised product.
First, the bingo pattern which viewers need to achieve shall be
connected with the product. “We’re playing for a new [vehicle], and
our bingo pattern is the letter [‘VI.” The advertised product will
appear on the BingoTV stage. Our hosts will physically
demonstrate key features, while spokespeople and advertiser
executives are given the opportunity to appear on camera with the
BingoTV hosts to discuss the product.
BINGO TV, About BingoTV, available at http://www.bingotv.com/about.html (last visited Sept. 7,
2004). BingoTV, designed to address the problem ofaudience loss during commercials, is a vehicle
“in which products are the program.” Id.
Article III, section 47 of the Texas Constitution provides that “[tlhe Legislature shall pass
laws prohibiting lotteries and gift enterprises in this State,” subject to limited exceptions for
charitable bingo, charitable raffles, and the state lottery. TEX. CONST. art. III, § 47. See Tex. Att’y
Gen. Op. Nos. GA-01 03 (2003) at 1, JC-0482 (2002) at 5. Section 47(b) provides that the legislature
may “authorize and regulate bingo games conducted” by various religious, fraternal, and charitable
organizations. TEX. CONST. art. III, 3 47(b); see also id. 5 47(c) (legislation authorizing bingo must
include certain reporting requirements and civil and criminal penalties). The legislature has adopted
the Bingo Enabling Act (the “Act”) and charged the Texas Lottery Commission (the “Commission”)
with administering it. See TEX. OCC. CODE ANN. $5 2001.001, ,051 (Vernon 2004). The Act
provides for licensing persons to conduct bingo for charitable purposes and for penalizing persons
who unlawfully conduct, promote, or administer bingo. See id. §§ 2001.102(9), ,454, ,551.
You state that the first question should focus on section 2001.55 1 of the Occupations Code,
which defines the offense of conducting, promoting, or administering unlawful bingo and provides
that it is a third degree felony. “Bingo” is defined for purposes of section 2001.551 as
a specific game of chance, commonly known as bingo or lotto, in
which prizes are awarded on the basis of designated numbers or
symbols on a card conforming to numbers or symbols selected at
Mr. C. Tom Clowe Jr. - Page 3 (GA-0248)
random, whether or not a person who participates as a player
furnishes something of valuefor the opportunity to participate.
Id. 5 2001.551(a) (emphasis added). BingoTV, as described by the Bingo TVNet Corporation, is
“bingo” within the quoted definition.
Section 2001.551(b) addresses bingo offenses and provides that:
(b) A person conducting, promoting, or administering bingo
commits an offense if the person conducts, promotes, or administers
bingo other than:
(1) under a license issued under this chapter;
(2) within the confines of a home for purposes of amusement
or recreation when:
(C) the prizes awarded or to be awarded are
nominal;
(3) on behalf of an organization of individuals 60 years of age
or over, a senior citizens’ association [and other specific groups listed
in the statute] when:
(A) no player or other person furnishes
anything of more than nominal value for the
opportunity to participate; and
(B) the prizes awarded or to be awarded are
nominal: or
(4) on behalf of a business conducting the game for
promotional or advertising purposes if:
(A) the game is conducted by or through a
newspaper or a radio or television station;
(B) participation in the game is open to the
general public and is not limited to customers of the
business;
(C) playing materials are furnished without
charge to a person on request; and
Mr. C. Tom Clowe Jr. - Page 4 (GA-0248)
(D) no player is required to furnish anything of
value for the opportunity to participate.
Id. § 2001.551(b). See also id. 2001.551(f) (game exempted under subsection (b)(4) is subject to
additional provisions relating to the involvement of persons licensed under chapter 2001, the
purchase and sale of bingo equipment or supplies, and information to be provided to the
Commission).
The Bingo TVNet Corporation is not licensed to conduct bingo in Texas, see Request Letter,
supra note 1, and is therefore not within section 2001.551(b)(l). A game exempted by the other
provisions of section 2001.551(b) need not be licensed under chapter 2001. See TEX. OCC. CODE
ANN. 5 2001.551(c) (Vernon 2004). Subsections (b)(2) and (3) do not apply to BingoTV. Because
BingoTV is conducted “for promotional or advertising purposes . . by or through a . . television
station,” see id. 5 2001,551(b)(4)(A), we will consider whether it qualities for exemption under
subsection (b)(4).
This question raises novel issues. The court in State v. Socony Mobil Oil Co., 386 S.W.2d
169 (Tex. Civ. App.-San Antonio, 1964, writ ref d n.r.e.) and several attorney general opinions,
see Tex. Att’y Gen. Op. Nos. M-481 (1969); C-108 (1963); WW-1421 (1962); WW-652 (1959),
concluded that various forms of televised promotional bingo were not lotteries within article
III, section 47, but BingoTV has complexities not addressed by these rulings. We have found no
judicial decision or attorney general opinion that construes section 2001.551(b)(4). Nor does the
Commission’s rule on exemptions from licensing requirements refer to the exemption authorized
by subsection (b)(4). See 16 TEX. ADMIN. CODE § 402.549 (2004) (requirements for a group or
organization conducting bingo without a license).
While BingoTV is conducted “byor through a. television station ,” TEX. Oct. CODE ANN.
5 2001,551(b)(4)(A) (Vernon 2004), it is also conducted online, a method of communication not
authorized by subsection (b)(4). Thus, BingoTV as described by the Bingo TVNet Corporation does
not comply with subsection (b)(4).
Section 2001.55 I(b)(4)(B) requires “participation in the game. [to be] open to the general
public and. . . not limited to customers of the business.” Id. 5 2001.55 1(b)(4)(B). Participation in
BingoTV is not limited to customers ofthe businesses whose products are advertised during a bingo
game, nor is it limited to customers of the Bingo TVNet Corporation. However, participation in
the game is not open to the general public, because BingoTV is available on television only to
subscribers to Dish Network. The Bingo TVNet Corporation may not conduct bingo online. See
id. 5 2001.55 1(b)(4) (no authority to conduct bingo online without a license). Thus, the corporation
cannot claim that BingoTV is available to the general public because it can be played online.
BingoTV therefore does not comply with subsection (b)(4)(B). In answer to your first question, we
conclude that BingoTV fails to comply with certain of the conditions forming the exemption
provided by section 2001.55 l(b)(4) ofthe Occupations Code. Accordingly, the Bingo Enabling Act
does not authorize the Bingo TVNet Corporation to conduct BingoTV in Texas.
Mr. C. Tom Clowe Jr. - Page 5 (GA-0248)
You also ask whether BingoTV is a legal “sweepstakes” under Texas law. Business and
Commerce Code chapter 45, which regulates “sweepstakes” conducted through the mail, defines
“sweepstakes” for purposes of chapter 45 as “a contest that awards one or more prizes based on
chance or the random selection of entries.” See TEX. Bus. & COMM. CODE ANN. $5 45.001(7), .002
(Vernon Supp. 2004-05) (prohibitions on conducting sweepstakes through the mail). Based on the
information provided by the Bingo TVNet Corporation, chapter 45 is not relevant to BingoTV.
While other Texas statutes relate to particular kinds of sweepstakes, none of these appear to
be relevant to BingoTV, as described in this opinion. See, e.g., TEX. ALCO. BEV. CODE ANN.
5 102.07(e) (Vernon Supp. 2004-05) (conduct of certain sweepstakes by certain permit holders);
TEX. UTIL. CODE ANN. $5 17.102,64.102 (Vernon Supp. 2004-05) (protection of consumers from
deceptive practices, including sweepstakes, that may cause consumers to unknowingly change their
telecommunications service provider). We have no basis for concluding that BingoTV is a legal
“sweepstakes” under any Texas law.
Mr. C. Tom Clowe Jr. - Page 6 (GA-0248)
SUMMARY
The Bingo Enabling Act, Texas Occupations Code chapter
2001, does not authorize the Bingo TVNet Corporation to conduct
BingoTV in Texas. BingoTV is not a legal “sweepstakes” within any
Texas law.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee