Untitled Texas Attorney General Opinion ( 1962 )

Hon. Norman W. Barr Opinion No. WW-1421
County Attorney
Tom Green County Re: !>ether the game called
San Angelo, Texas Tel-A-Bingo which appears
on television constitutes a
Dear Mr. Barr: lottery under stated facts.
You have requested an oplnl~n concerning whether a
certain television program called Tel-A-Bingo constitutes a
lottery under the following facts submitted In your request:
"The game played Is called 'Tel-A-Bingo,'
which Is sponsored by some twenty-odd merchants
and which appears once each day over the local
television station. Cards for playing the game
may be obtained either by visiting one of the
local merchants sponsoring the game or by writ-
ing the television station and having a card
mailed free of charge and post paid to the par-
ticipant. The cards are given free and no pay-
ment for the card or purchase Is necessary In
order to obtain the same. The television program
lasts thirty minutes each day and during the
program numbers are called out and the names of
merchants participating are given. A winner must
contact the station within a sp$clfied period of
time and receives a cash prize.
Article 654, Vernon's Penal Code, provides:
"If any person shall establish a lottery or
dispose of any estate, real or personal, by
lottery, he shall be fine not less than one
hundred nor more than one thousand dollars; or
if any person shall sell, offer for sale or keep
for sale any ticket or part ticket in any lottery,
he shall be fine no; less than ten nor more
than fifty dollars.
Every lottery, as judicially defined in this state, con-
sists of the following three essential elements: (1) a prize
or prizes, (2) the award or distribution of the prize or or',ses
by chance, and (3) payment either directly or indirectly by the
Hon. Norman Barr, page 2 (WW-1421)
participants of ao;on;fd;p;ion for the right privilege of
participating. C e a e 122 S.W.2d 725 Tex.Crim. 1937);
Smith v. State, 127 S.W.2d 29j (Tex.Crim. Brice v. Stata
242 S.W.2d 433 (Tex.Crlm. 1959).
Since the elements “prize” and “chance” are clearly
present In the facts outlined In your request, your question
involves the presence or absence of the element of consideration.
Sponsoring merchants of this program are using it to
advertise and solicit business for their stores and products.
They evidently feel that the patronage and good will created by
this game of chance justifies their sponsoring cost. The ques-
tion to be r$solved le whether this patronage and good will
constitutes consideration.
The two leading Texas cases on this question are Smith v.
%t;;eltl``dS,;i~ 297 (Tex.Crlm. 1939), where the Court held
@Ice v. State, 242 S.W.2d 433, (Tex.Crlm.
1951), wherk the Court held that It did not.
In the Smith case, the customer was required to visit
some sponsoring merchant in order to secure the cards by which
to play the game. lie was also required to surrender box tops,
wrappers, cartons, or containers of any commodity that was sold
by any member of the organization. Some such wrappers, contaln-
era, etc., would be good for more stamps than others, governed
by the price of the commodity that was originally contaltied in
such containers. The Court, upon these facta, held that the
license fee payed by the’ participating merchant was the payment
of consideration moving Indirectly from the contestant and
directly to the owner of the game. On Appellant’
s Motion for
Rehearing, the Court said:
“Consequently, parties desiring to secure a
chanc’e at the prize would necessarily have to go
to such merchant of bueineae eetabllahment as had
contributed to the general fund. Aa a result, the
good will and patronage of the person favored with
the carda Is secured. This patronage, whatever It
may be, is given In exchange for cards and stamps,
which is an indirect benefit to the operator of the
scheme, and enables him to continue his game of
chance. It is a bait handed out to the gullible as
an Inducement to become customers of the dealers
or merchants subscribing to the plan.!’
In the Brica case, the public was invited to the open-
lng of Defendant’s new store and to register for prizes to be
5396
Hon. Norman Barr, page 3 (NW-1421)
given away. The Court, in holding that this was not a lottery,
said:
?Jnder the authorities mentioned, we must con-
clude that in the absence of any character of
favoritism shown to customers, the lottery statute,
Article 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 regls-
trant to be a customer or to purchase merchandise
or to do o$her than to register without charge at
the store, though the donor may receive a ben$fit
from the drawing In the way of advertisement.
And on the Motion for Rehearing, said:
"The 'consideration' in this case which moves
from the parties participating In the drawing for
the prize, or prlzegto Appellant Is entirely
fanciful. It is not suf;iclently substantial to
be.classed as a reality.
The principle laid down In the Brlce case was reiterated
In F.C.C. v. American Broadcastinn Co., U.S. 284, 75 S. Ct.
593, 98 L.Ed;, 699 (1954). There the Supreme Court held that
a give-away program on radio and television was not a lottery.
The Court, upon the question of consideration, said:
'The Courts have defined consideration In
various ways, but so far as we are aware none
has ever held that a contestant listening at home
to a radlo or television program satisfies the
consideration requirement. . . . To be eligible for
a prize from the 'glve-away' program involved here,
not a single home contestant Is required to pur-
chase anything, or pay any admission price or leave
his home to visit the promoter's place of business;
the only ezfort required for participation is
listening.
"He believe that It would be stretching the
statute to the breaking point to give an in;er-
pretation that makes such prcgrams a crime.
It is our opinion that the facts in the Smith case dis-
tinguish it from this case and that the holdings in Brlce v.
State, suora, and F.C.C. v. American Broadcasting co., ,ELQZ%
Hon. Norman Barr, page 4 (WW-1421)
are controlling hef;e. You are therefore advised that in our
opinion the game, Tel-A-Bingo" as described ~ln your request
does not violate Article 654, Penal Code of Texas.
SUMMARY
The advertising program described In your
request Is not a lottery within Article 654,
Penal Code of Texas, because of the ,absence
of any consideration passing either directly
or Indirectly from the participant to the donor.
Yours very truly,
WILL WILSON _
BY
Marvin F. Sentell
Assistant Attorney
General
MFS:bjh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Zuber
Bill Colburn
Ben Harrison
W. 0. Shultz
REVIEWEDFORTHE A!tTORNti GENERAL
BY: Leonard Passmore