Untitled Texas Attorney General Opinion

989
TEE ATJ?ORNEY GENERAL
OF TEXAS
AUUT~N 1s. TEXAU
Must 15, 1957
Honorable Wayne Pearson Opinion No. ww-217
County Attorney
Kaufman County Re: Whether a radio nrogram
Kaufman, Texas entitled "Luckv Buck" is
a lottery under the facts
Dear Mr. Pearson: submitted
You have requested an opinion concerning whether a
certain radio program constitutes a lottery under facts sub-
mitted in your request as follows:
"The station advertises the fact that on a
given date representatives of the station will
appear at a certain business establishment
located within the city and at a given time will
announce certain numbers. People in the audience
will be asked to examine dollar bills, which are
owned by the individuals, in possession of the
individuals, to determine whether or not the num-
ber given by the radio station corresponds with
the numbers appearing on the dollar bills. In
the event such a corresponding number is found the
person in possession of that dollar bill wins a
money prize. The station has already put the
program into effect and is presently conducting
the program at the drive-in theater. The drive-
in theater is an advertiser of the station;
however, I am advised that no addit'onal amount
is being charged because of the "Lucky Buck"
program and the cost of the program is being
borne by the radio station. Of course, to be
eligible to participate in the program one must
pay admission to the theater. It is the plan of
the radio station to move the program to differ-
ent business establishments, some of which may
not be their advertisers; however, the station
admits that in conducting the program on premises
of a non-advertiser the purpose is to create good
will on the part of the owner with the hope that
he may later become an advertiser with the radio
station. It is not their intention to charge
anything extra for advertising because of the
holding of the "Lucky Buck" program at that
4, (
1
990
Honorable Wayne Pearson, page 2 (W-217)
particular place of business. As the plan is
now being conducted, it is not at every an-
nouncement of a number that there is a winner
for the reason that the number called out may
not correspond with any of the numbers appear-
ing on dollar bills in possession of persons
appearing at the place where the program is be-
ing conducted, and I am advised that although
the same has been carried on at the drive-in
theater for several nights, to date no winner
has been found."
Your question reads as follows:
"I would appreciate very much your opinion
on whether or not the program is a lottery when
carried on in the above type instances, to-wit:
"1 0 A motion picture theater where admis-
sion is charged;
"2. At a place of business where no admis-
sion is charged, but is an advertiser
of the radio station;
“30 At a place of business not an advertis-
er with no admission charged;
"4. A civic club meeting where no admission
is charged and no future advertising
expected from the club as suchOU1
Section 47 of Article III of the Constitution of
Texas provides:
"The Legislature shall pass laws prohibiting
the establishment of lotteries and gift enter-
prises in this State, as well as the sale of tick-
ets in lotteries, gift enterprises or other eva-
sions involving the lottery principle, established
or existing in other States."
Article 6%, Vernon's Penal Code, provides:
"If any person shall establish a lottery or
dispose of any estate, real or personal, by lot-
tery, he shall be fined not less than cne hundred
nor more than one thousand dollars; or if any
person shall sell, offer for sale or keep for
sale any ticket or part ticket in any lottery, he
shall be fined not less than ten nor more than
fifty dollars."
991
Honorable Wayne Pearson, page 3 (WW-217)
. Every
-.. lottery9 as judicially
.._- . defined in this State,
consists of tnree essential elements namely: (1).a prize
or prizes, (2) the award or distribu?ion of the prize or
prizes by chance, and (3) the payment either directly or in-
directly by the participants of a consideration for the right
or privilege of participating. Cole v. State, 133 Tex. Crim.
548, 112 S.W.2d 725 (1938); City of Wink v. Griffith Amusement
129 Tex. 40 100 S.W.2d 695 (1936) S‘mith v. State
13
9- Tex.Crim. 611, 137 S.W.2d 297 (1939); Biice v. State, 242
S.W.2d 433 (Tex.Crim. 1951).
Since the elements flprize"and %hance” are clearly
present in the facts outlined inyour request, your question
involves the presence or absence of the element of considera-
tion. In passing on this question the Texas Courts have held
that "bank nite" contests held in theaters constitute a lot-
tery and state that the purpose of such scheme is to increase
the patronage to the theater and that the'cost of the ticket
constituted a consideration for the chance. The distribution
of llfreel*
chances was considered a subterfuge and did not have
the effect of removing the element of consideration from an
otherwise illegal scheme. City of Wink V* Griffith Amusement
Comcany, supra; Cole v. State, supra.
Likewise, the so-called "Noah's Ark" scheme has been
condemned as a lottery. This promotional enterprise involved
a number of merchants who paid license fees to a promoter who
distributed cards to the merchants who, in turn, gave them to
persons entering their stores in exchange for box tops and
other evidences of purchases. The cards so distributed were
chances for a prize. Smith v. State, 136 Tex. Crim. 611, 127
S.W.2d 297 (1939).
However, in Brice v. State, 242 S.W.2d 433 (Tex.
Crim. 1951), the Court held that the granting of prizes at the
opening of the new retail store, did not constitute a lottery.
In this cases the general public was invited to register for
a contest held at the opening of the store, and none of the
chances for the awards were distributed on the basis of pur-
chase.
In view of the foregoing, you are advised that the
radio program is a lottery when the activities described in
your letter are conducted at "a motion picture theater where
admission is charged."
You are further advised that the radio program does
not constitute a lotterywhen the activities described in your
992
Honorable Wayne Pearson, page 4 (w-217)
letter are conducted (1) "at a place of business where no ad-
mission is charged, but is an advertiser of the radio station,"
(2) "at a place of business not an advertiser with no admis-
sion charged", and (3) at "a civic club meeting where no admis-
sion is charged and no future advertising expected from the
club as such , for the reason that the element of consideration
is not present under such circumstances.
SUMMARY
A radio program whereby cash prizes
are given by chance to individuals pre-
sent at a business establishment con-
stitutes a lottery when such activity
is conducted at a place of business
where admission is charged but does not
constitute a lottery when the activities
are conducted (1) "at a place of business
where no admission is charged, but is an
advertiser of the radio station" (2) "at
a place of business not an advertiser with
no admission charged", and (3) "a civic
club meeting where no admission Is charged
and no future advertising expected from
the club as such", for the reason that the
element of consideration is not present
under such circumstances.
Yours very truly
WILL,WILSON
Attorney General of Texas
By$!;-‘+&LLee/
,
JR:zt John Reeves
Assistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
W. V. Geppert
Wallace Finfrock
B. H. Timmins, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Geo. P. Blackburn