Untitled Texas Attorney General Opinion ( 1999 )

September 22, 1999
The Honorable Michael J. Guarino Opinion No. JC-0111
Criminal District Attorney
Galveston County Courthouse Re: Whether a certificate of deposit may be
722 Moody, Suite 300 offered as a prize at a raMe conducted under the
Galveston, Texas 77550 Charitable Raffle Enabling Act (RQ-0026)
Dear Mr. Guarino:
The Charitable Raffle Enabling Act, chapter 2002 of the Texas Occupations Code, prohibits
a qualified charitable organization from offering money as a prize at a raffle conducted under the
Act.’ The statute does not define “money,” but the term generally refers to coins and currency of
the United States accepted as a medium of exchange. You ask whether a certificate of deposit may
be offered as a prize. We conclude that a certificate of deposit, a negotiable instrument readily
convertible to money, that is, a money equivalent, may not be offered as a prize at a raffle conducted
under the Act.
A certificate of deposit is a negotiable instrument that entitles the holder to receive money.
It is “a banks written acknowledgment of a special deposit of money which the bank promises to
pay to the order of a designated person, or to bearer. ” Ames v. Great S. Bank, 672 S.W.2d 441,449
(Tex. 1984); see also TEX. Bus. &COMM. CODE ANN. 4 3.104(j) (Vernon Supp. 1999) (“Certificate
of deposit” is a negotiable “instrument containing an acknowledgment by a bank that a sum of
money has been received by the bank and a promise by the bank to repay the sum of money. [It] is
a note of the bank.“).* The legal effect of the certificate of deposit is that of a promissory note rather
than simply a receipt of funds. See Dallas/Fort Worth Airport Bankv. Dallas Bank& Trust Co., 667
S.W.2d 572, 575 (Tex. App.-Dallas 1984, no writ). The obligation assumed by a bank that issues
a negotiable certificate of deposit is to pay the funds represented by the certificate of deposit to its
‘House Bill 3155 of the 76th Legislative Session repealed article 179f of the Revised Civil Statutes and
reenacted it without substantivechange as chapter 2002 ofthe Texas OccupationsCode. See Act ofMay 13,1999,76th
Leg., R.S., ch. 388, 5 1, sets. 2002.001.,058, 1999 Tex. Sess. Law Serv. 1431,2359; id. $ 6(a), 1999 Tex. Sess. Law
Serv. at 2439-40 (repealing article 1790. For ease of citation, this opinion will refer to the provisions of the Act as they
will be codified in the Texas Occupations Code.
‘A “negotiable instrument”is an unconditional promise or order to pay a fixed sum of money to the bearer OI
to order that is payable on demand or at a defmite time. TEX.BUS.& COMM.CODEANN.5 3.104(a) (Vernon Supp.
1999).
The Honorable Michael J. Guarino - Page 2 (JC-0 111)
holder, whoever that may be. See id. You ask whether such an instrument may be offered as a prize
in a raffle conducted under the Charitable Raffle Enabling Act.
The Charitable Raffle Enabling Act was enacted under a specific constitutional exception to
the general constitutional prohibition against gambling. Article III, section 47(a) of the Texas
Constitution prohibits “lotteries and gift enterprises” in the state except those expressly authorized
by the constitution. TEX. CONST. art. III, $47(a). Prior to 1989, any raffle was a prohibited lottery,
even araffle for charity. See Tex. Att’y Gen. Op. No. JM-513 (1986). In 1989, the voters approved
an amendment to the constitution-article III, section 47(d) -that allows the legislature by general
law to permit a qualified religious society, qualified volunteer tire department, qualified volunteer
emergency medical service, or a qualified nonprofit organization to conduct raffles subject to the
conditions imposed by law. See TEX. CONST. art. III, § 47(d). The Charitable Raffle Enabling Act
is the general law authorizing and regulating charitable raffles.
Under the Act, a qualified charitable organization may conduct raffles subject to the
restrictions imposed by section 2002.056 of the Act. Section 2002.056 restricts the prizes that may
be offered, by providing as follows:
(4 A prize offered or awarded at the raffle may not be money.
@I Except as provided by Subsection (c),~ the value of a prize
offered or awarded at a raffle that is purchased by the
organization or for which the organization provides any
consideration may not exceed $50,000.
TEX. Oct. CODE ANN. $2002.056(a), (b) (footnote and emphasis added).
We assume that the value ofthe certificate ofdeposit involved here does not exceed $50,000.
Thus, the issue presented, for the purposes of this opinion, is whether a certificate of deposit is
“money” under the Act.
The Act does not define “money.” Generally, words not defined by the legislature are to be
given their ordinary meaning. See Geters v. Eagle Ins. Co., 834 S.W.2d 49,50 (Tex. 1992); see also
TEX. GOV’T CODE ANN. 5 312.002 (Vernon 1998) (except words that have acquired specific
meaning, words shall be given ordinary meaning). The ordinary meaning is to be given to “money”
as used in section 2002.056, unless to do so would “lead to an absurdity or thwart the plain purpose
of the Legislature.” Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927); see also Mitchell
Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997) (primary objective in construing
statutes is to give effect to legislative intent); TEX. GOV’T CODE ANN. 312.005 (Vernon 1998) (in
interpreting statutes a court shall diligently attempt to ascertain legislative intent). We think the
‘Subsection (c) relates to lottery tickets with a face value of less than $50,000 that may be offered as a prize.
TEX.Oct. CODEANN.5 2002.056(c).
The Honorable Michael J. Guarino - Page 3 (JC-0 111)
ordinary meaning of money does just that in this instance, and we must give weight to the intent of
the voters and the legislature as reflected in the Texas Constitution and statutes limiting gambling
in this state.
Black’s Law Dictionary defines “money” in its usual and ordinary sense to mean “coins and
paper currency used as circulating medium of exchange, and does not embrace notes, bonds,
evidences ofdebt, or other personal or real estate.” BLACK’SLAW DKXONARY 1005 (6th ed. 1991).
The Oxford English Dictionary provides that in modem usage, the term is “commonly applied
indifferently to coin and to such promissory documents representing coin (esp. government andbank
notes) as are currently accepted as a medium of exchange. See PAPERMONEY.” IX THE OXFORD
ENGLISHDICTIONARY992 (2d ed. 1989). Under the ordinary meaning of the term, it may be argued
that a certificate of deposit is not money because it is not coin or currency of the United States
accepted as a medium of exchange. See also Thompson v. Thompson, 236 S.W.2d 779,791 (Tex.
195 1) (certificates of deposit are not “cash” or “cash money”).
Such a construction ofthe term money, however, ignores the existence ofmoney equivalents
common in our commerce. See Amberboy v. Societe de Banque Privee, 83 1 S.W.2d 793,796 (Tex.
1992) (purpose of law ofnegotiable instruments “is to make the instrument the fimctional equivalent
ofmoney”); Bailey Vaught, Robertson and Co. v. Remington Invs., Inc., 888 S.W.2d 860,864 (Tex.
App.-Dallas 1994, no writ) (same). Accordingly, under a construction limiting “money” to “coin”
or “currency,” a charitable organization could offer a certificate of deposit as a prize even though
it represents money and entitles the winner to receive money. In fact, under the ordinary meaning
of money, a charitable organization could offer as a prize any other instrument that represents money
and that may be readily converted into money, such as a personal, traveler’s or cashier’s check or
a money order. See TEX. Bus. & COMM. CODE ANN. 5 3.104 (Vernon Supp. 1999) (“Negotiable
Instrument”) (c), (f) (defining “check,” which includes “money order”); (g) (defining “cashier’s
check”); (h) (defining “teller’s check”); (i) (defining “traveler’s check”). In short, construing money
within its ordinary meaning would render the Act’s prohibition against offering money as a prize
virtually meaningless by elevating form over substance: a raffle winner would not receive “money”
but something that represents and is intended to convert to “money.” See Ashworth, 943 S.W.2d at
438 (when construing statute, court may consider consequences of particular construction). For
example, a winner would not receive a fifty dollar bill, but would receive instead a check for fifty
dollars that could be cashed at the nearest bank or convenience store.
The purpose of the Act’s prohibition is to prevent a charitable raffle from being a form of
gambling or money-making activity for those who purchase a raffle ticket. Article III, section 47(d)
specifically authorizes only raffles for charitable purposes, not bingo or lottery. Compare TEX.
CONST. art III, 5 47(d) with id. art III, 5 47(b) & (e). In keeping with the limited constitutional
authorization, the purpose of the section 2002.056 restriction is, we believe, to preclude a raffle from
being a form of profit-making gambling activity like bingo or the state lottery, which obviously do
not include a similar restriction. See TEX. Oct. CODE ANN. § 2001.420 (bingo prizes); TEX. GOV’T
CODEANN. $4 466.401-.409(Vemon 1998)(lotteryprizes). This interpretation is supportednot only
by a reasonable and common-sense reading of article III, section 47 and the Act, but also by the
The Honorable Michael I. Guarino - Page 4 (JC-0 111)
Act’s legislative history. See Ashworth, 943 S.W.2d at 438 (when construing statute, court may
consider object to be obtained, circumstances of statute’s enactment, and legislative history).
Representative Smith, sponsor of House Bill 240 that enacted the Charitable Raffle Enabling Act,
explained that the purpose of the bill was to aid charitable organizations in their effort to raise funds
for their causes: the raffles would entice people who normally do not make charitable contributions
in effect to do so. Hearings on Tex. H.B. 240 Before the House Comm. on State Affairs, list Leg.,
R.S. (March 13, 1989) (tape available through Office of the House Committee Coordinator). He
noted that the majority ofpeople who participate in these raffles do not expect to win, butparticipate
to make a charitable contribution. Id. (emphasis added). Significantly, the type of prize that
Representative Smith seems to have had in mind to entice these contributions were goods, such as
a quilt. See id. (giving example of a local church raftling off a quilt to church members). Lastly,
Representative Smith emphasized that the legislation had been written tightly to avoid raffles
becomingprofit-based operations similar to bingo or the state lottery. Id. (emphasis added).
In keeping with the voters’ purpose in ratifying article III, section 47(d) and the legislative
intent of the Act, we believe that money as used in the Charitable Raffle Enabling Act includes
negotiable instruments that represent money and are readily convertible to money or, in other words,
are the equivalent ofmoney. C’ Stewart v. Selder, 473 S.W.2d 3,9 (Tex. 1971) (“cash,” which term
encompasses “money,” may properly be interpreted broadly “to mean securities readily convertible
into cash or other types of property where the provisions of the will and the surrounding
circumstances show that the term was used in that sense by the testator.“); Amberboy, 831 S.W.2d
at 796 (negotiable instruments intended to be functional equivalent of money); Remington
Investments, Inc., 888 S.W.2d at 864 (same). Accordingly, we construe “money” in section
2002.056 to include not only coins and currency oftheunited States but also negotiable instruments
that are equivalent to money, such as certificates ofdeposit. Therefore, we conclude that a certificate
of deposit may not be offered as a prize at a raMe conducted under the Act.
The Honorable Michael J. Guarino - Page 5 ( JC-o 111)
SUMMARY
A certificate of deposit may not be offered as a prize at a raffle
conducted under the Charitable Raffle Enabling Act, chapter 2002 of
the Texas Occupations Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General - Opinion Committee