Untitled Texas Attorney General Opinion ( 1952 )

Hon. R. Y. Lindsey, Jr. Opinion No. V-1485
County Attorney
Dawson County Re: Legality of theatre
Lamesa, Texas prize schemes call-
ed "Qnls Bank" or
"Quiz Show" and "Mov-
Dear Sir: le Sweepstakes.?
You reqnest an opinion of this office as
to whether either of the following quoted fact sit-
uations constitutes a violation of Articles 654 and
655, Vernon's Penal *de, prohibiting lotteries and
raffles.
? "FACT SfTmTION NO. I.. A n&vi& give-
away show ontitled either 'Quiz Dank' or
'Quiz ghow"is operated on the folloilng
basis:
"At the time theatre tickets are pur-
chased at the Drive-In Theatre located on
the outskirts of the City, an attendant in
front of the ticket booth passes out to
each patron in the respective automobiles
a card upon which is inscribed either 'Quiz
Dank' or 'Quiz Show.' Also printed on the
give-away cards are spaces for the answera
to twelve questions.' On the 'Quiz Dank'
cards, answers to questlons which are ;asked
over the loudspeaker durlng~ intermission
are made by punching a hole through the
card under the heading of either ‘Yes’ or
'NO', which constitute8 the patrons an-
swers to questions asked by the MC, which
questions cover topics Including histori-
cal events, geographical locations and
subjects, or any other pertinent questions
taken from encyclopedias or ather sources
of information to test the patron's skill.
In connection with the 'Quiz Show' cards
handed out to patrons, spaces are provided
on the cards for patrons to designate an
Hon. R. Y. Lindsey, Jr., Page 2, (V-1483)
answer to each of the ten questions pro-
jected on the screen by the process of
punching a hole through the card and de-
signating the patron's answer to be one
of three possible answers also projected
screen with the questions. The
,on the,,
patron designates'which of the three an-
swers he thinks to be correct by punch-
ing a hole through the letter A, B, or C,
,underthe respective number on the card.
,In both of the above set out give-away
shows, the patrons are given ten minutes
after the questions have been announced
over the loud-speaker or projected on
the screen in which to complete their an-
swers by making the appropriate punch
:marks on the card and then depositing
their cards with their names and address-
es inscribed thereon in a common recepta-
cle in or near the concession stand in-
side the theatre. Normally, the prize
money starts off with an amount in the
bank designated at $25.00 up to $100.00,
as the prize for answering the questions
correctly, and if none of the patrons win
on the articular night, then an addl-
tional $ 25.00 is added to the prize money
and carried over to the next week's pro-
gram. In both of the Quiz Shows referred
to patrons need not be present to win the
prize money. Winners or the absence of a
winner at each particular program are us-
ually announced at the end of the last
feature shown by the respective theatres
for the evening. As stated above, one of
the Quiz Shows restricts all of its ques-
tions to matters pertaining to various
subject matter that is found in encyclo-
pedias and other periodicals. In the oth-
er quiz show, a porti n of the questions
projected on the scre1n are lifted or de-
rived from scenes or circumstances per-
taining to a movie shown at this parti-
cular theatre several days prior to the
date of the Quiz Show, the rest of the
questions are taken from and pertain to
historical events and other miscellaneous
matters of a type normally given on radio
quiz shows and other types of give-away
Hon. R. Y. Lindsey, Jr., Page 3, (v-1483)
programs. Patrons must purchase a the-
atre tlcke~t;at the respective ticket
booths In order to be able to participate
in ‘:QuizRank’ or ‘Quiz Show’ as above
.outlined, etin.“thoughthey do not have to
be .:presentin the theatre’to win or ob-
tain the prize money give-away to the per-
sonanswering all the questions correctly.
It is my understanding that children under
the age of 12 years are not permitted to
participate in either the ‘Quiz Dank’ or
‘Quiz Show’ programs. . e *”
” “FACT,STTUATION’N0. II. A local
drive-In thestre, ‘as sunadded induc&&nt”
for building up patronage and attendance
of its theatre, on one night out of every
week presents a game called ‘Movie Sweep-
stakes I. ‘Movie Sweepstakes’ Is a game
in which films of famous horce races are
shown as a special attraction in the the-
atre on a particular night in the week.
On the ‘Sweepstakes’ night, patrons in-
side the theatre select three of the
films at random to be shown, which means
that three separate horse races from ac-
tual scenes at a race-track are shown on
the screen. These are then shown in the
order selected and anyone who has pre-
viously chosen the correct winners In all
three races wins a prize.
“To be eligible to win the prize, it
is not necessary that one buy a ticket to
the theatre, nor does one have to enter
the theatre in order to collect his prize.
Also, he need not be in the vicinity of
the theatre at the time the races are shown.
In the operation of ‘Movie Sweepstakes‘, a
game card is handed to all adults who uare
to pick one up at the theatre, whether he’
intends to buy a ticket and see the regular
show,or,not . The cards are not handed out
at the ticket office, but to anyone who.de-
,. Those snot entering the theabe.
,3Ires ,one
simply write their names and addresses on
the bottoms of the cards which they then de-
posit in a;nearby receptacle. Also,on these
cards are their choices of which horses they
Hon. R. Y. Lindsey, Jr., Page 4, (V-1483)
believe will be the winners in the races
to be shown inside the theatre. Persons
purchasing a ticket to see the regular
movie on 'Movie Sweepstakes' night are not
given game cards at the time they purchase
their tickets, but they must obtain them
apart from the ticket office. They may
either pick up the cards or not after or
before they purchase their tickets, or
they may pick up cards without even pur-
chasing tickets.
"It Is understood that the reason
for not giving out the forms at the time
the patrons purchase a ticket is to elim-
inate the possibility that the money paid
for the ticket also pays In part for the
game card. 'Movie Sweepstakes' operates
by having patrons purchase tickets to see
the regular movie and added shorts of
which the Movie Sweepstakes is one, with-
out regard to winning money. Then, if a
patron desires to be eligible to play the
game, he may pick up a game card without
giving any consideration. He pays for
movie entertainment only and if he does
not buy a ticket, he still may be able to
win a prize, although, of course, he will
be excluded from watching the movie in-
side the theatre. The basis upon which
this program operates is, that although
there Is a prize and a chance involved,
it lacks the necessary element of con-
sideration. . . .'
The Texas courts have defined a lottery as
a scheme for the distribution of prizes by lot or
chance among persons who have paid, or who have sgreed
to pay, a valuable consideration for the opportunity
to win the awards. City of Wink v. Griffith Amusement
co., 129 Tex. 40, 100 S.W.2d 695 (1936); 54 C.J.S. 843,
Lotteries, Sec. 1; 28 Tex. Jur. 409, 410, Lotteries,
Sec. 2. Thus, every lottery contains three essential
elements as follows: (1) prize; (2) chance; and (3)
consideration.
Fact Situation No. I nvolves the question
of whether the element of chsnci is to be found in the
scheme. The same problem was considered in Attorney
Hon. R. I'. Lindsey, Jr., Page 5, (V-1483)
General Opinion V-544 (1948). We there held in ef-
fect that if the conduct of a contest and the an-
swers given to a set of questions are dependent pri-
marily upon skill and knowledge rather than upon
mere chance,~;.the
contest Is lawful. On the other
hand, if any controlling portion of a contest calls
for and is dependent upon pure guesses or chances,
it is a lottery and therefore unlawful. A determi-
nation of whether the scheme indicated by your Fact
Situation Rob I violates the lottery statutes de-
pends upon the facts and circumstances of each con-
test and may not therefore be determined abstractly.
In Fact Situation Ro. II, however, the
problem concerns the presence or absence of the ele-
ment of consideration. If participation in the game
were limited to theater ticket holders, the element
of consideration would clearly be present, but such
is not the case here. Non-patrons as well as pa-
trons of the theater may compete for the awards.
Therefore, the question for our determination is
whether the distribution of "free" chances removes
the element of consideration from this plan.
'@MovieSweepstakes," as described in your .
request,"ls,basically similar to the various motion
picture 10 S.W.2d 124 (Tex. Clu
APP. 1928) See also Att'y Gen. Ops.,O-2843 (1940);
V-1420 (1952).
Hon. R. Y. Lindsey, Jr., Page 6, (V-1483)
In only one case, Griffith Amusement Co.
v. MOP an, 98 S.W.28 844, (Tex. Civ. App. 1936) was
den upheld. This decision. however. was
neither cited-nor followed in the more recent cases,
and it cannot be considered controlling here. Nei-
ther have the principles enunciated in the “Bank
Nits” cases been overturned by the recent decision
in Brice v. State, 242 S.W.2d-433 (Tex. Crim. 1951),
which arose out of circumstances entirelv different
from those before us.
It is difficult of course to ascertain
from descriptive literature alone the exact nature
of any given scheme. The written description might
differ materially from the manner in which It is
actually carried out. However, in ‘Movie Sweep-
stakes” as described in your request,~it appears
that a substantial portion of the chances for prizes
are on the basis of the purchase of theater tickets.
This constitutes a valuable consideration moving
from the contestants to the donor of the prizes, and,
under the authorities cited above, tbatelement Is not
removed by the distribution of a number of “free*
chances on request. It is our opinion, therefore,
that “Movie Sweepstakea” constitutes a lottery pro-
hibited by Article 654, Vernon’s Penal Code.
SUMMARY
Whether the theatre quiz contest plan
known as “Quiz Bank” or “Quiz Show” is a
lottery and violates Article 654, Vernon’s
Penal Code, is a question to be determined
upon the facts and circumstances of each
contest and cannot be determined abstractly
as a matter of law. If the conduct of the
c.ontestand the answers to a given set of
questions are dependent primarily upon
skill and knowledge rather than upon mere
chance, the contest is lawful. On the
other hand if any controlling portion of
the contest calls for and is dependent up-
on pure guess or chance, it Is a lottery
and is therefore unlawful.
The contest “Movie Sweepstakes,” in
which prizes are distributed to motion pic-
ture theatre ticket holders, is a lottery
Hon. R. Y. Lindsey, Jr., Page 7, (v-1483)
prohibited~by Article 654, VP,C.., even
though some of the chances for awards are
distributed to non-patrons of the theatre.
Yours very truly,
PRICE DANIEL
;,ttorneyGeneral
BY
Cal~vinB. Gsrwood, Jr.
Assistant
APPROVED;
E, Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant