Untitled Texas Attorney General Opinion ( 1960 )

.I .
TEE ATTORNEY GENES
OF TEXAS
Auemmv II. TEXAS
September 9. 1960
Mr. 0. S. Moore
District Attorney
Runt County Courthouse
Greenville, Texas Opinion No. WW-930
Re: Does a bonus card distributed
by a grocery3 which card con-
tains spaces for recording
the amount of purchases and
also the number of store visits,
constitute a lottery in viola-
Dear Mr. Moore: tion of the penal code?
Your request for an opinion haspbeen received and carefully
considered by this office. We quote your letter as follows:
"A question has arisen with respect to whether or
not the use by local merchantsof a 'bonus card' con-
stitutes a,lottery in violation of the Penal Code.
"The exact type of card to be used is enclosed
herein. /Ihis bonuscard bears the name of the merchant
and his address and has a serial number printed on the
back side of same. It is one card, but is.divlded Into
two sections by a heavy black line as appears on the
face of the card. Each of the two sections are separate
from the other and are independent of the other. The
right two-thirds of the card Is know&and referred to
as the ‘weekly store visit recordl.
"Printed around the edge of the purchase record
side of the card are a series of'money values ranging
from lO# to $2.00, totaling $100.00. These money values
are designed to be punched out with a hand punch each
time a person makes a purchase and the amount of such
purchase is punched along the edge of the purchase
record side of the card. On a designated day each .week,
the holder of the card can obtain a free $2.00 purchase
punch. When the purchase record is completely punched,
a flat $1.00 is given to the holder of the card. ThlS
amount does not vary and is guaranteed. The purchase
record section of the card is similar to the trading
stamp program, which I do not question, ,being in effect
a trade discount privilege and applicable to all custom-
ers on an equal basis.
0. s. Moore, page 2 (W-930)
"The left portion of the card, the weekly store
visit record, applies to anyone. Upon the weekly store
visit record being completely punched a specified number
of times, and without any purchases being made, required
or requested, the seal appearing on the left section of
the card Is opened by a store employee and If the skill
question is answered correctly by the card holder, the
amount of money printed under the seal Is paid.
"The cards are distributed to the public free of
charge and without any obligation, requisite or require-
ment of purchases or any other kind or character of
obligations. At the,time the bonus cards are distributed,
there are likewise distributed detailed, itemized and
specific instructions as to how the progrsmoperates and
same Is fully explanatory. A copy of such instructions
Is ~enclosed herewith and a reading of same fully apprises
thenreader of the operation of~the program. In addition
to the~bonus cards and instructions being distributed,
'fact sheets' that contain the skill questions and answers
printed under the seals,are distributed. A copy of the
'fact sheets' used Is enclosed herewith.
"Anyone holding a card may obtain from any store
employee a free 'weekly Store visit nunch'. The program
does not require any person tonu=hase any merchandise
whatsoever In order to particjpate In attempting to
answer the skill question printed under the seal.
"Under the above given set of facts, and aisuming
that the users of the cards strictly adhere to same,
please advise whether the use of the bonus cards as above
outlined constitutes a lottery in violation of the Penal
Code of the State of Texas.!'
This Is the second request received by this Department for
an opinion based upon this particular "Profit Sharing Bonus Card".
The other request was answered in Opinion No. ``-843 where'lt
was held that the card did constitute a lottery under the laws
of the State of Texas. The two portions of the card, with the
set of Instructions given in that ,factsituatlon, were used
together in such a way that the bonus on the "store visit" por-
tion of the card could probably not be won until the "purchase
record" end had been completely punched out. This office made
it clear in both Opinion No. ``-843 and in Opinion No. ``-840
that in any scheme where the customer is ,glvenan advantage over
the non-customer, the element of consideration is present.
Mr. 0. S. Moore, page 3 (W-930)
We are now called upon to state whether the same bonus
card constitutes a lottery when used with a different set of
instructions, pertinent parts of which follow:
1. All bonus cards are dlstrlbuted free and without
any requirement of any purchase whatsoever.
2. The bonus card advertising plan entails two
separate, distinct and independent plans for distribution
of cash. (1) The purchase discount bonus, and
(2) The St%'v%t game of skill program.
4. The store visit program is separate, distinct
and independent of the purchase discount bonus program.
Every week the holder of a ticket visits the store, one
of the store visit numbers appearing on the face of the
card Is punched out. No purchases, whatsoever, are re-
quired to have the,store visit punch entered on the'card.
When all of the store visits are punch& out and lrrespec-
tive of whether or not any of the -purchase records are
punched, the seal Is lifted by the store-manager or assls-
tant store-manager, and the holder of the card is asked
the question which is concealed under the seal. If the
holder answers the question correctly, then the Jndlcated
bonus is paid to the holder. If the holder is unable to
correctly answer, no bonus is ~paid at all.
5. So far as the question under the seal,is con-
cerned, it Is not related to any purchase made.~ It can
be opened when the storevisit punches are completed,
whether the purchases have,been made or not, and either
before or after the purchases discount has been paid.
The purchase discount will be paid whether or not the
seal has been opened and independent of the seal,
7. A person, other than the checker, will be deslg-
nated to punch the free visit record on the cards, and
information sheets will be distributed at a place in the
store, clearly marked and, away from the check-stand.
In answering your question, we will take the two portions
of the card and examine them separately. There seems to be
little doubt but that the purchase record side of the card Is
not a lottery in violation of the penal code if the stores and
employees adhere strictly to the instruction sheet attached to
your letter. As you stated, this portion of the "bonus card"
is merely a trade discount privilege and applicable to all cus-
tomers on an equal basis.
,
Mr. 0. S. Moore, page 4 (W&930)
The "weekly store visit" end of the card will now be dis-
cussed. It is well settled that a lottery consists of three
essential elements, 'namely: (1) A prize or prizes, (2) the
award or distribution of the prize or prizes by chance, and
(3) the payment either directly or indirectly by the particl-
pants of a consideration for the right or rivilege of partici-
Cole v. State, 133 Tex.Crim.R. 54 ii , 112 S.W.2d 725
‘3%;7:
The first element is certainly present with prizes from
$1.00 to $1,000.00.
The second element of chance is also present In the "weekly
store visit" portion of the card. Everyone receives a prize,
but the amount of the prize is based upon chance.
It only remains to be determined whether the third element
was present, that is, the payment of a consideration by the par-
ticipants. We think this question has been completely foreclosed
by the Court of Criminal Appeals In Brlce vs. State, 156 Tex.
Crim.R. 372, 242 S.W.2d 433. We quote from the opinion:
"As shown by the exhibits and~the testimony,
anyone could register once each day for the three day
period and thus become eligible for the drawing by
going~to the mezzanine floor and writing their name,
address and telephone number on a registration card.
Some six or eight thousand cards were filled out prior
to the drawing held at the store when the prizes shown
In the state's second exhibit were given away.
"One could not be a prize winner without so
registering at the store and, as It was widely adver-
tised, no registrant was required to buy anything or
to be at the store at the time of the drawing.
1 )
l * *
II
. . . it is clear that three things must concur
to establish a thing as a lottery: (a) A prize or
prizes; (b) the award or distribution of the prize or
prizes by chance; (c) the payment either directly or
indirectly by the participants of a consideration for
the right or privilege of participating.
fl* * *
"'The fact that the holder of the drawing expects
thereby to receive, or in fact does receive, some benefit
Mr. 0. S. Moore, page 5 (W-930)
in the way of patronage or otherwise, as a result of the
drawing, does not supply,the element of consideration
paid by the chance holder for the chance . . . .I
. The crux of the opinion lies in the third
section, or section 'cl, reading as follows: 'the payment
either directly or indirectly by the participants of a
consideration for the right or privilege of participating.'
"The 'consideration' in this case which moves from
the parties participating in the drawing for the prize,
or prizes, to appellant is entirely fanciful. It is not
sufficiently substantial to be classed as a reality."
If merely going to the store, as held In the Brlce case,
did not constitute a consideration we can see no reason for
holding that additional visits would so so, assuming the cus-
tomer was required to pay nothing and was not obligated to buy
anything. We are ,thereforeof the opinion and so hold that
the proposed plan does not constitute a lottery.
SUMMARY
The "purchase record" portion of this bonus card,
used with the,instruction sheet attached to this re-
quest and.distrlbuted by a grocery, does not constitute
a lottery in violation ,of the Texas Penal Code; neither
does the "store visit" portion of this same card,
distributed by a grocery and used with the instruction
sheet attached to this request.
Yours very truly,
WILL WIISON
Attorney General of Texas
wRs:vj By:
APPROVED: Assistant
OPINION Ctii.X'iTEE RZVIEWED FOR THE ATTORNEY
W. V. Geppert, Chairman GENERAL BY:
Marvin Thom:,L: Houghton Brownlee
C. K. Richcrds
John Reeves
Ben Harrison