Untitled Texas Attorney General Opinion ( 1962 )

THEATTORNEYGENERAI.
June 6, 1962
Honorable Jerry Dellana Opinion No. WW-1343
County Attorney
Travis County Courthouse Re: Legality under Article 654,
Austin, Texas V.P.C.; of giving a valuable
prize by means of a drawing
Dear Mr. Dellana: under the facts submitted.
You have requested an opinion as to the legality
under Article 654 of Vernon's Penal Code of a plan described
by you as follows:
"Facts: A merchant desires to give away a
central air-conditioning unit at the open-
ing of a new store and office; it is not
necessary for the registrant to be present
to win nor to buy anything frcm the store
to register, but limits the registrants to
the following:
"1 . That only one member of a family may
register at one time.
"2 . That the registrant own a home in
Travis County, Texas.
"3. That the unit will be installed in a
single family residence only, the con-
denser being not less than two ton
capacity and not greater than five ton
capacity.
"4. That no employees or their immediate
family may participate."
Article 6.54,Vernon's Penal Code, prohibits the esta-
blishment and operation of a lottery, and the disposition
of property by lottery, but does not define a lottery. The
courts have, therefore, adopted a definition based upon the
term "lottery" and it is well established that three things
must occur to constitute an advertising scheme a lottery
and these are: (a) A prize or prizes; (b) the award or
distribution of the prize or prizes by chance; (c) the pay-
ment, either directly or indirectly, by the participant of
Hon. Jerry Dellana Page 2 Opinion No. WW-1343
a consideration for the right or privilege of participating.
Cole v. State, 112 S.W.2d 725 (Tex.Crim.l937), Brice v.
State, 242 S.W.2d 433 (Tex.Crim. 1951), Smith v. State,1274
md 297 (Tex.Crim. 1939).
Assuming the facts as you have given them, it is
clear that no purchase must be made to become eligible to
win the prize if selected, hence there is no consideration
paid by the participant. The Court of Criminal Appeals in
Brice v. State holds that the going into a store and regist-
ering does not constitute the payment of consideration,even
though the donor may receive a benefit from the drawing in
the way of advertising. Such being the case, in our opinion
this plan is not a lottery because of the lack of considera-
tion.
SUMMARY
The advertising plan does not constl-
tute a lottery under the facts submitted
because of the absence of consideration.
Yours very truly,
WILL WILSON
Attornev General of Texas
BY
Charles R. Lind
Assistant Attorney General
CRL:sh
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Pat Bailey
Vernon Teofan
Jay Howell
Milton Richardson
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore