Untitled Texas Attorney General Opinion

March 17. 1987 .
Eonorable Bob Bullock Opinion No. JM-646
Comptroller of Public Accounts
L.B.J. Building Re: Whether certain “give away”
Austin. Texas 78774 promotional games violate the
Bingo Enabling Act
Dear Mr. Bullock:
You have asked about the legality of three games conducted by
newspapers in the pages of their publications and one to be broadcast
as a television game show for viewer participation. Each of them
(variously called “Wingo ,” “Bingo ,I’ or “Banko”) uses a format similar
to that of a bingo game. The games are designed to promote news-
paper circulation or to Increase patron-traffic on behalf of local
businesses. Free game materials are xade available to potential
players and it is not necessary to purchase anything to win.
The Texas Constitution requires the legislature to enact laws
prohibiting “lotteries” and “gift enterprises.” Tex. Const. art. III,
047. A 1980 amendment to that provision allows the legislature to
authorize bingo games under certain circumstances:
(b) The Legislature by law may authorize and
regulate bingo games conducted by a church,
w=gow= f religious society, volunteer fire
department, nonprofit veterans organization,
fraternal organization, or nonprofit organiza-
tion supporting medical research or treatment
programs. . . . (Emphasis added).
Generally, the Bingo Enabling Act, article 179d. V.T.C.S.. seeks
to implement a constitutionally-contemplated regulatory scheme for
legalized bingo games. A bingo game is defined by section 2(2) of
article 179d to mean
a specific game of chance, commonly known as bingo
or lotto, in which prizes are awarded on the
basis of designated numbers or symbols on a card
conforming to numbers or symbols selected at
random.
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Honorable Bob Bullock - Page 2 (JM-646)
The definition of a bingo game is given more detail by section 39 of
the Bingo Enabling Act - the part of the statute that makes the
conduct, promotion, or administration of an unlawful bingo game a
crime. It reads:
(t’,ze; the purposes of this section, ‘bingo’
or means 8 specific game of chance,
commonly known as bingo or lotto, in which prizes
are awarded on the basis of designated numbers or
symbols on a card conforming to numbers or symbols
selected at random, whether or not a person who
participates as a player furnishes something of
value for the opportunity to participate.
(b) Any person conducting, promoting, or ad-
ministering a game commits a felony of the third
degree unless the person is conducting, promoting,
or administering a game:
(1) in accordance with a valid license issued
under this Act;
(2) within the confines of a home for purposes
of amusement or recreation when:
(A) no player or other person furnishes any-
thing of more than nominal value for the oppor-
tunity to participate;
(B) participation in the game does not exceed
15 players; and
(C) the prizes awarded or to be awarded are
nominal; or
(3) on behalf of an organization of persons 60
years of age or over, a senior citizens’ associa-
tion, or the patients in a hospital or nursing
home or residents of a retirement home solely for
the purpose of amusement and recreation of its
members. residents. or patients, when:
(A) no player or other person furnishes any-
thing of more than nominal value for the oppor-
tunity to participate; and
(B) the prizes awarded or to be awarded are
nominal.
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Honorable Bob Bullock - Page 3 (JM-646)
(c) This section applies to all political sub-
divisions regardless of local option status.
(d) A game exempted by Subdivision (2) or (3)
of Subsection (b) of this section does not need to
be licensed. (Emphasis added).
V.T.C.S. art. 179d. §39. Your office has determined that the games in
question constitute “bingo” within the meaning of section 39.
In light of the concluding words of subsection (a) of section 39.
it is unnecessary to review cases decided under other laws that deal
with the use of advertising or merchandising promotions having a
“bingo , ” ”gift enterprise.” or “lottery” format. See Brice v. State,
242 S.W.2d 433 (Tex. Grim. App. 1951); see also State”. Socony Mobile
Oil Company. 386 S.W.2d 169 (Tex. Civ. App. - San Antonio 1964, writ
ref’d n.r.e.); Hoffman v. State, 219 S.W.2d 539 (Tex. Civ. App. -
Dallas 1949, no writ); Attorney General Opinion JM-513 (1986). The
payment of consideration, directly or indirectly by the participant,
is an essential element of the lottery offense under the Penal Code.
See Penal Code %47.01(6); Brice v. State, 242 S.W.2d at 434-35;
Attorney General Opinion JM-513 (1986). The effect of the last clause
of subsection (a) of section 39 is to remove the element of considera-
tion from the specific criminal offense described in subsections (a)
of section 39, i.e., the conduct, promotion, or administration of a
“bingo” game as defined in subsection (a). Since you have determined
that the games about which you inquire actually constitute “bingo”
within the meaning of section 39. they must be conducted in compliance
with subsection (b) regardless of whether a person who participates
as a player furnishes something of value for the opportunity to
participate. Subsection (b) requires that a valid license be obtained
if the game in question fails to fall within two limited exceptions.
Whether the conduct, promotion, or administration of these games
without a license actually constitutes a third degree felony also
depends upon proof of all of the other elements of a criminal offense.
Because some of these games are conducted over television, you also
ask whether federal law preempts the Bingo Enabling Act.
Section 1304 of Title 18 of the United States Code provides:
Whoever broadcasts by means of any radio
station for which a license is required by any law
of the United States, or whoever, operating any
such station, knowingly permits the broadcasting
of. any advertisement of or information concerning
any lottery, gift enterprise, or similar scheme,
offering prizes dependent in whole or in part upon
lot or chance, or any list of the prizes drawn or
awarded by means of a*7 such lottery, gift
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Honorable Bob Bullock - Page 4 (JIG646)
enterprise, or scheme, whether said list contains
any part or all of such prizes, shall be fined not
more than $1,000 or imprisoned not more than one
year. or both.
Each day’s broadcasting shall constitute a
separate offense.
“Radio” broadcasting in this context includes television broadcasting.
See 47 U.S.C. §153(b) (1982); Allen B. Dumont Laboratories v. Carroll,
184 F.2d 153 (3rd Cir. 1950). cert. denied, 340 U.S. 929 (1951).
The San Antonio Court of Civil Appeals In State v. Socony Mobil
Oil Company, 386 S.W.2d 169 (Tex.. Civ. App. - San Antonio 1964,
writ ref’d n.r.e.), citing 18 U.S.C. 51304, considered whether an
lniunction could be granted qrohibitlnq the broadcast of a “TV-Bingo”
g-. The court concluded that even if the bingo-format promotional
scheme at issue there was a “lottery” under Texas law, the state
had no jurisdiction to enjoin the broadcast because Congress had
“preempted the field’ of regulating the broadcasting of [it] over TV.”
386 S.W.2d at 174.
The Socony Mobil holding would be in point if a promotional game
with a bingo format were a “lottery, gift enterprise, or similar
scheme” within the meaning of the federal statute whether or not a
person who participates as a player furnishes something of value for
the ouuortunitv to uarticipate. However, the federal statute does not
reach- ‘“give away” - programs. Federal Communications Commission v.
American Broadcasting Company, 347 U.S. 284 (1954); Caples Co. v.
United States, 243 F.2d 232 (D.C. Cir. 1957).
The precise act prohibited by section 1304 of Title 18 is the
broadcasting of prohibited information or knowingly permitting its
broadcast (by one operating a station). It was held in Federal
Communications Commission v. American Broadcasting Company, supra.
that “give away programs” requiring no movement of consideration from
the participant were not lotteries, gift enterprises, or similar
schemes within the meaning of section 1304. In part, the Supreme
Court based its conclusion on a long standing administrative
interpretation (by the Post Office .Department) of the same language
found in section 1302 of Title 18. which orevents the mailina of
lottery tickets and related matters. Cf. ‘Post Publishing Co: v.
Murray. 230 F. 773 (1st Cit. 1916).
Thus, federal law does not punish the use of the mails or broad-
casting facilities to conduct, promote or administer a bingo game if
the person who participates as a player does not furnish something of
value for the opportunity to participate. But the Texas Bingo
Enabling Act does. Unless Congress has preempted the entire field of
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criminal laws relating to lotteries or “give away” promotions, the
Texas law is enforceable. We do not believe it was the intent of
Congress in enacting sections 1302 and 1304 to occupy the field of
criminal law with respect to lotteries or “give away” schemes. Those
statutes, in our opinion, do not preempt the operation of a state
criminal law that reaches conduct nowhere addressed by a federal
statute. Cf.
- United States v. Fesler, 781 F.2d 384 (5th Cir. 1986).
In Head v. New Mexico Board of Examiners in Optometry. 374 U.SI
424 (1963), the United States Supreme Court rejected a claim that a
state restriction on radio advertising of optometry prices was invalid
because, supposedly, the enactment of the Federal Communications Act
preempted the field. Mr. Justice Brennan. concurring, said:
The New Mexico law is one designed principally
to protect the state’s consumers against a local
evil by local application to forbid certain forms
of advertising in all mass media. Such legisla-
tion, whether concerned with the health and safety
of consumers, or with their protection against
fraud and deception, embodies a traditional state
interest of the sort which our decisions have
consistently respected. (Citation omitted.) Nor
is such legislation required to yield simply
because it may in some degree restrict the
activities of one who holds a federal license.
374 U.S. at 445. We believe thf Texas ban on unlicensed bingo games
presents.an analogous situation. -Cf. Attorney General Opinion MW-488
(1982) .
The policy and scope of section 1304 was considered by the Second
Circuit in 1969, a few years after the Bead case was decided. In New
York State Broadcasters Assn. v. Unitedxtes. 414 F.2d 990 (2d CT
1969), the court held that section 1304 applies to the television
broadcast of prohibited Information about legal, state-sponsored
lotteries as well as illegal ones. In determining the scope of the
congressional enactment, the court stated:
1. While sections 1304 and 1302 might preempt a state law which
attempted to penalize the broadcast of the same lottery information
condemned by the federal law. or which attempted to penalize the
mailing of such lottery information, they do not preempt a state law
that would prevent the production of the material which, if it were
produced, might then be broadcast or mailed. Cf. Brooklyn Daily Eagle
v. Voorhies. 181 F. 579 (E.D.N.Y. Cir. 1910). -
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In prohibiting the broadcasting of lottery
information Congress was not acting in a vacuum;
for more than one hundred years a prohibition
ou conducting a lottery by use of the mail
facilities had existed. See 18 U.S.C. §§1302,
1303. Similarly, prohibitions on importation and
interstate shipment of lottery material also
existed when section 1304 was enacted. &
- 18
U.S.C. 51301. It is true that Congress has not
attempted to prohibit the conduct of lotteries;
with narrowly prescribed exceptions the states
have done that. But Congress has exercised its
mwer
r~ ``
- the existence of which oetitioners
concede -- to inhibit lotteries and to aid the
states by denying lottery promoters access to
facilities over which the federal government has
control.
It is In this light that the Commission’s action
must be considered -- not as an exercise of the
power to regulate broadcasting in the public
interest necessitated by the nature and technology
of broadcasting, but as enforcement of the clear
congressional policy embodied in section 1304.
(Emphasis added).
414 U.S. at 995.
The policy of the federal statute is to prohibit (in aid of the
states) the broadcast of certain types of information; it is not
one promoting the broadcast of whatever has not been specifically
prohibited by federal law.’ The operation of state law to prevent the
broadcast of “give away” programs is not at odds with any federal
policy favoring such broadcasts. As the United States Supreme Court
noted in Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978). a
“conflict” found only in the possibility that a state statute would
2. The scope of section 1304 was further restricted by the Third
Circuit in New Jersey State Lottery Commission v. United States, 491
F.2d 219 (3rd Cir. 1974). another case involving a state-sponsored
lottery. Certiorari was granted by the Supreme Court in order to
resolve the conflict created but the cause was remanded to determine
aootness in the light of section 1307 of Title 18 (making section 1304
inapplicable
__ to information about state-conducted lotteries), sub-
sequently enacted. United States v. New Jersey State Lottery Commis-
sion, 420 U.S. 371 (1975).
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Honorable Bob Bullock - Page 7 (JM-646)
prevent au act that a federal statute would otherwise "permit"
(but not urotect as a oollcv matter) is not sufficient to warrant
preemptiod. 437 U.S. at'131.O Cf. King v. Gemini Food Services, Inc.,
438 F. Supp. 964 (E.D. Va. 1976),aff'd per curiam, 562 F.2d 297 (4th
Cir. 1977) (adopting district court's reasoning), cert. denied, 434
U.S. 1065 (1978); Vincent v. General Dynamics Corp., 427 F. Supp. 786
(N.D. Tex. 1977). In our opinion the Bingo Enabling Act is not
preempted by federal law. -
SUMMARY
The conduct, promotion, or administration of an
unlicensed game in which prizes are awarded on the
basis of designated numbers or symbols on a card
conforming to numbers or symbols selected at random
is Illegal unless expressly excepted by the Texas
Bingo Enabling Act, Including, for example, games
conducted, promoted, or administered by local
newspapers and television stations even though
persons who participate as players furnish nothing of
value for the opportunity to participate.
JIM MATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attoruey General
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