Untitled Texas Attorney General Opinion ( 1961 )

THEATTORNEY GENERAL
OF TEXAS
Aus- aa, TExAe
March 29, 1961
Mr. A. W. Davis OpinionNo. WW-1030
DistrictAttorney
50th JudicialDistrict Re: Whetherthe "GoodwillAward
Paducah,Texas Promotion"under the facts
stated~constitutesa lottery
violativeof Section47, Article
III, Constitutionof Texas and
Dear Mr. Davis: Article 654, Vernon'sPenal Code.
The followingopinionis renderedpursuantto your requestand is
based upon materialsubmittedsettingforth the procedurefor operationof
"GoodwillAward Promotion"-
which procedurewe quote:
"B - A week to ten days before the date of the
first drawinga representative of GoodwillAdvertisingCo.
is placed in the stqreto registereveryonewho comes in
to it.
"(a) A desk or table is set up insidethe store
but outsidethe sales'area.
"(b) The representative ask!,the store visitor if
he or she wishes to register- and if so, per-
mits them to do so and explainsthat there is
to be a drawingevery week and that X amount
of dollarswill be given away on those nights -
the day and time statedto the registrant.
Registrantis also told that the drawing is
free and that it is not necessaryto buy any-
thing to be eligible.
"(c) Upon registeringon a master registrationsheet,
the registrantis given a qualification card and
advisedagain - "Thesedrawingsare every week,
startingon day at P.M. The drawing
will be held%%de,'in front of the store,
announcedover a publicaddress system,both in-
side and outsidethe store. If your name is
called,you shallbe declaredthe winner, if
your card has been punchedand you present it
within the allottedtime.
(The time allowedis printedon the card, as
well a8 the time of day, dates, rules of the
promotionand full instructionsgoverningthe
game.)
Mr. A. W. Davis,Page 2 (WW-1030)
"(d) The qualification card is punchedfor the first
drawingbut the registrantIs instructedthat
they must get it punchedfor subsequentweeks~
In order to be eligiblefor the drawing. A
cashieror a girl at the CourtesyBooth will
punch and qualifythe cards.
"(e) One registrationis good for all drawings,r:so
long as the promotioncontinues.
"Transcribing to ControlCards - This plan has a uniqueway of
controlby transcribingnames from the master registrationsheet
to alphabeticaland numerLca1controlcards which operatein
such a way that one who might registermore than once will not
have but one number in the drum -- thusly every registranthas
an equal chanceon drawingnight,,,which stems from a numbered
tab attachedto the alphabeticalcard, taken from it upon it
being used and being placed in a revolvingdrum.
"DrawingNight - The Master of Cermonieswill pick judges from
volunteersin the audienceas well a8 a child who does the
actual drawing. The numberedtab drawn from the drum by &he
child is comparedto the numericalcontrolcard which the
judgeshave in possessionand the,nameappearingon that card
14 declaredthe winner.
"It is usual for the storeto award smallpresentsto the judges
and the child as'8 thank you for their servicesthoughthis is
not an actual part of the promotion.
"If a winner on any given night does not appearto collecthis
prize,that amount of money becomesa part of a largerprize
to be given away the followingweek. ,
"At the end of the term of the promotionany money not dis-
tributedon prior nights will be drawn for until a winner
does appear -- so that the total aurnagreed upon at the
startof the plan is disbursedto the registrants.
Vuring the conversationby the+ster of Cermoniesproceed-
ing every drawingit is clearlyexplainedto his listeners
that et no time is it necessaryto bdy anythingin the store
in order to participatein this give away p-tion plan."
While no Texas Statuteattemptsto define a lottery,and Legislatures
of other jurisdictions generallymake no attemptto definea Lottery,the
text materialand case law of the overwhelmingmajority,includingour own
jurisdiction, are uniform in settingforth the necessaryelementsof a
lottery,namely: (1) A prize or prizes,(2) the award or distributionof
. .
Mr. A. W. Davis, Page 3 (WW-1030)
the prize or prizes by chanceand, (3) the paymenteitherdirectlyor in-
directlyby the participantsof a consideration for the right or privilege
of participating.Cole vs. State, 133 Tex. Crim. 548, 112 S.W.2d725
(19381; City of Wink vs. GriffithAmusementCo., I.29Tex: 40, 100 S.W.2d
695 (1936); Smith vs. State, 136 Tex. Grim. 611, 127 S.W.2d 297 (1939);
Price vs. State, 242 S.W.2dli33(Tex. Crim. 1951); F.C.C. vs. American
BroadcastingCO., 347 U.S. 284, (1954);34 Am. Jur. 647 lotteries,Sec. 3.
There can be no doubt that the first two elements,"prize"and
"chance",exist in the procedurefor the operationsubmitted,therefore,
your inquirypertainsto whetheror not the third element,"consideration",
is present. In reachinga conclusion,there are at least two possibleap-
proaches:
(a) The considerationrequiredto be paid x be
any consideration
that would supporta simple
contract,or
(b) The consideration
requiredto be paid must be
a valuableconsideration.
While the cases cited above do not describethe necessaryconsider-
ation,they do seem to negativethe posiibilitythat any consideration which
would support.a simple contractis sufficientto supplythis third and final
element. On the contrary,the leadingcase in Texas of Brice vs. State,
supra, standsfor the propositionthat,therequisiteconsideration must be
valuable,citingwith approval,GriffithAmusementCo. vs. Morgan, 95 S.W.2d
'884(civ.App. 1936). In the Brice case the defendantwas chargedby complaint
and informationwith violations of Article654 E.C., the allegedviolationbeing
the merchant'sinvitationto the generaipublicto'comsinto his store and
registerfor a prize to be given away. Anyone could registeronce each day
for a three day period and thus become eligiblefor the drawingby going to
the store and writinghis name, address,and telephonenumber on a registration
card. One could not be a prize winnerwithout so registeringat the store;no
registrantwas requiredto buy anythingor be at the store at the time of the
drawing. Concedingthat the elementsof prize and chancewere shown by the
facts above the court held:
"Underthe authoritiesmentioned,we must conclude
that in the absenceof any characterof favoritism
shown to customers,the lotterystatute,Art. 654,~.~.,
is not violatedunder a plan wherebya merchantawards
a prize or prizesby chanceto a registrantwithoutre-
quiringany~registrant to be a customeror to purchase
merchandiseor to do other than to registerwithout
chargeat the store,thoughthe donor may receivea
benefit from the drawingin the way of advertising."
Mr. A. W. Davis, Page 4 (WW-1030)
The Austin Court of Civil Appeals in the case of GriffithAmusement
Co., vs. Morgan, supra, held:
"As above statedit is essentialto a lottery
that somethingof value must:be paid for the chance
to win the prize. The elementof venture,the chance
to lose or win somethingof value is essential...
"The fact that the holderof the drawingexpects
therebyto receive,or in fact does receive,some bene-
fit in the way of patronageor otherwise,as a result
of the drawing,does not supplythe elementof con-
siderationpaid by the chanceholder for the chance."
Assumingthe facts as outlinedabove in the proceduresfor operation
of GoodwillAward Promotionit seems clear that this promotionis identical
to that involvedin the Brice case, supra. No person ,isrequiredto make a
purchaseat a participatingstore to become eligiblefor an award; any
personmay convenientlyregisterand become eligiblefor an award; the
transcribingprocedureoutlinedabove makes it evidentthat all registrants
have an equal chance on &awing night,'noadvantagesbeing affordedcustomers
of a participatingstore who may actuallymake purchasesat the store in ad-
ditionto registering.
It is our opinion,from the facts as outlinedby you, that the neces-
sary elementof considerationis absent,and further,the GoodwillAward
Promotiondoes not constitutea lottery.
It is noted that the SupremeJudicialCourt of Maine in the case of
State of Maine vs. Russiere,154 A.2d 702, (1959)had before it an identical
promotion,namely, "GoodwillCash Bight". The Maine Court held:
"In order to constitutea crime under the statute
in question,three elementsmust be present,~$7.:(1)
prize, (2) chance,and (3) a consideration having a
pecuniaryvalue paid directlyor indirectlyby some
participant. Under the facts in this case the third
elementis not present,and the defendantcannotbe
found guilty of the crime charged."
S U M'M A R Y
The GoodwillAward Promotiondoes not constitutea
lottery,under the submittedfacts,becauseof the
absenceof a valuableconsideration.
. . .
Mr. A. W. Davis, Page 5 (WW-1030)
Very truly yours,
WILL WILSON
AttorneyGeneralof Texas
Maston C. Courtney I/
AssistantAttorneyGeneral
MCC:br
APPROVED:
OPINIONCOMMIYTER
W. V. Geppert,Chairman
Jerry Roberts
DudleyMcCall8
John Phillips
REVIlBEDFORTREATTORK?XGENERAL
BY: Morgan Nesbitt