Untitled Texas Attorney General Opinion ( 1963 )

Hon. James k. Barlow .. opinion NO. c-108
Criminal Dletrlct Attorney
Bexar County Courthouse Re: Whether the playing of
San Antonio 5, Texas bingo on television con-
stitutes a lottery and
Dear Sir: related question.
You have requested an opinion of this office on the follow-
ing questiona:
(1) ‘!I would ,llke to know whether in your
opinion, in view of the authorities briefed above,
whether you are of the opinion that the promotion
described in the facta portion of thie request
constitutes a lottery under the lottery law.”
(2) “I would like to know whether In your
opinion, in view of the authorities briefed above,
whether the promotion herein described constitutes
a ‘gift enterprlae’ or ‘evasion 1nvol:ving: the lottery
principle’ violating the public policy of this
State and flubject to Injunction at the request of
the State.
The following information- was submitted with the opinion
request:
“Cards of the normal bingo type will be
distributed by merchants or other advertisers ae
well as by the TV station. The cards ``111 change
In color from time to time and the game must be
played on a current card., The cards will be
given by themerohant to the player and will coat
the player nothing except the time and effort
to pickthem up. It is implied that the merchant
will pay for the time of the.:atation land the prdzee
and will pay the promoter for the use of the plan.
which is protected by copy-right. The exact details
of the financial arrangements have not been disclosed.
The cards are not to.be connected with the sale
“of merchandise and ~‘111 be free to the player at
the merchant’s place of bualness.
.A ‘. ,’
,.
Hon. James E. Barlow, page 2 (,c-108)
“At a set time, bingo numbers will be selected
by the announcer on television in full vlew of the
audience, and the first party to call In with the
bingo numbers covered (It will be black-out or
cover-all bingo) wlll win a prize of $25.00. Ottfers
will receive merchandise certificates as prizes.
‘ Article 3, Section 47 of the Constitution of Texas pro-
vides:
‘The Legislature shall pass laws prohibiting
the establishment of lotteries and gift enterprises
in this State, as well as the sale of tickets In
lotteries, gift enterprlaes or other evasions in-
volving the lottery prlnctple, established or
existing in other states.
Our courts have held that, In order to establish a thing
as a lottery, three things must concur: (1) a prize or
prizes; (2) the award or distribution of the priselor prizes
by chance; (3) the payments either dlrectIy.or Indirectly by
the participants of a consideration for the right or priv-
FJ rvice
````~o``A````:````‘“`` S:W;2ds;24 (Tex.Clv.App.dtt28);
@ebb & Rowley ted. Inc at 127 S.‘W,2d 221 (Tex.
civ.App. 1939); Brice v.’ State, 15?Tex.Crlm. 372, 242
s;w.hl 433.
Under the set of facts presented, unquestionably, two
.o~f the elements, prize and chance, are present. The question
for our determination la whether or not the element‘of con-
sideration is present under the plan submitted. By Attorney
General Opinions ``-652 and WW-1421, copies .of which are
attached, it was our opinion in similar fact situations that
the element of consideration was not present. We have recon-
sidered these opinion8 and reaffirm them.
Therefore, the answer to your first question IS answered
in the negative.
‘. In ‘determining the meaning of “gift enterprises” as that
term le’uaed~.ln Section 47 of Br6lcle III of the %onetltutl!on
It Is necessary to ascertain the meaning of such term. at the
time of the adoption of such section of the Constitution.
er’s Ins..Co. v. MarahalL 124 Tex. 45, 76 S.W.Ed 1007
Especially helpful In ietermlnlng the meaning 6f the
&ii enterprise” ia~lts relation to former statutes.
.,
.~ ,-
‘..
-535- .. i’
.
&-
a- Constitution, supra, the Legislature
enacted a statute providing for.the licensing of "gift
enterprises". Paschals' Digest of the Laws of Texas,, Section
: 7708- "Gift enterprise" was defined therein as follows:
'For every gift enterprise, $500. Every
person, firm or corporation who shall sell any-
thing with a promises either expressed or Implied,
and give anything In consideration of such aale
-and purchase> shall b$ regarded as the proprietor
of a gift enterprise.
..,
There appears to be no sale with a promise, either expressed
or Implied, accompanied wlth'~the giving of anything In consid-
eration of a sale and purchase under the facts given. Conae:
quently, it appears that the playing of bingo, under the,,facts
stated does not fit the deflnltlon of a "gift enterprise +
No cases were found which expressed in any degree of
clarity what 'other evasions Involving the lottery~prlnclple"
.constltute. The courts have struck down various schemes, but
:always on the basis of being a lottery, The lottery principle,
as stated,above, has three essential elements: prize; chance,
and consideration. It would appear, therefore, that to be an
evasion Involving the lottery pr+nclple the same essential
elements would have to be present,. Here, again, we do not have
the essential element of consideration and so It is our
opinion that the plan in question Is not an evasion Involving
the lottery principle.
SUMMARY
Under the facts presented the playing of bingo on
televlson is not a lottery or an evasion Involving the
lottery principle as the element of consideration 1s not
Nor does the playing of blngo.on television
``~$n&e facts given fall within the definition of a
"gift enterprise .
Yours very truly,
WAGGONER CARR
Attorney General of Texas
-1rwln R. Salmanson
Assistant Attorney..General
-536-
^_ _
Hon. James E. Barlow, page 4 (c-108)
1RS:cjp
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. S. Bracewell
Murray Jordon
Robert Lewis
Malcolm Quick
APPROVEDFOR THE ATTORNEY
GENERAL
By: Stanton Stone
-537-