Hon. Norman W. Barr                 Opinion No. WW-1421
County Attorney
Tom Green County                    Re:   !>ether the game called
San Angelo, Texas                          Tel-A-Bingo    which appears
                                          on television   constitutes   a
Dear Mr. Barr:                            lottery   under stated facts.
        You have requested an oplnl~n concerning whether a
certain  television program called   Tel-A-Bingo constitutes  a
lottery under the following  facts submitted In your request:
               "The game played Is called     'Tel-A-Bingo,'
          which Is sponsored by some twenty-odd merchants
          and which appears once each day over the local
          television   station.    Cards for playing the game
          may be obtained either by visiting        one of the
          local merchants sponsoring the game or by writ-
          ing the television     station and having a card
          mailed free of charge and post paid to the par-
          ticipant.    The cards are given free and no pay-
          ment for the card or purchase Is necessary In
          order to obtain the same. The television           program
          lasts thirty minutes each day and during the
          program numbers are called out and the names of
          merchants participating      are given.    A winner must
          contact the station within a sp$clfied         period of
          time and receives     a cash prize.
          Article   654, Vernon's   Penal Code, provides:
              "If any person shall establish     a lottery   or
          dispose of any estate,    real or personal,     by
          lottery,   he shall be fine not less than one
          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 fine no; less than ten nor more
          than fifty   dollars.
        Every lottery,  as judicially    defined in this state,     con-
sists of the following   three essential     elements:    (1) a prize
or prizes,   (2) the award or distribution      of the prize or or',ses
by chance, and (3) payment either directly        or indirectly  by the
Hon. Norman Barr,       page 2   (WW-1421)


participants   of    ao;on;fd;p;ion    for the right     privilege of
participating.       C e          a e 122 S.W.2d 725   Tex.Crim. 1937);
Smith v. State,      127 S.W.2d 29j (Tex.Crim.           Brice v. Stata
242 S.W.2d 433      (Tex.Crlm. 1959).
        Since the elements “prize” and “chance” are clearly
present In the facts outlined In your request, your question
involves the presence or absence of the element of consideration.
         Sponsoring merchants of this program are using it to
advertise   and solicit    business for their stores and products.
They evidently    feel that the patronage and good will created by
this game of chance justifies       their sponsoring cost. The ques-
tion to be r$solved le whether this patronage and good will
constitutes     consideration.
         The two leading Texas cases on this question are Smith v.
%t;;eltl~~dS,;i~     297 (Tex.Crlm. 1939), where the Court held
                   @Ice   v. State, 242 S.W.2d 433, (Tex.Crlm.
1951), wherk the Court held that It did not.
         In the Smith case, the customer was required to visit
some sponsoring merchant in order to secure the cards by which
to play the game. lie was also required to surrender box tops,
wrappers, cartons,   or containers   of any commodity that was sold
by any member of the organization.       Some such wrappers, contaln-
era, etc.,   would be good for more stamps than others,     governed
by the price of the commodity that was originally      contaltied in
such containers.    The Court, upon these facta, held that the
license fee payed by the’ participating     merchant was the payment
of consideration   moving Indirectly   from the contestant   and
directly   to the owner of the game.    On  Appellant’
                                                     s  Motion   for
Rehearing, the Court said:

            “Consequently,  parties desiring    to secure a
        chanc’e at the prize would necessarily      have to go
        to such merchant of bueineae eetabllahment as had
        contributed   to the general fund.     Aa a result,  the
        good will and patronage of the person favored with
        the carda Is secured.     This patronage,    whatever It
        may be, is given In exchange for cards and stamps,
        which is an indirect    benefit to the operator of the
        scheme, and enables him to continue his game of
        chance.    It is a bait handed out to the gullible     as
        an Inducement to become customers of the dealers
        or merchants subscribing     to the plan.!’
       In the Brica case, the public was invited to the open-
lng of Defendant’s new store and to register  for prizes to be
                                                                          5396

Hon. Norman Barr,      page 3    (NW-1421)


given away.      The Court,   in holding     that this   was not a lottery,
said:
            ?Jnder the authorities    mentioned, we must con-
       clude that in the absence of any character of
       favoritism   shown to customers,    the lottery   statute,
       Article   654, P.C., is not violated     under a plan
       whereby a merchant awards a prize or prizes by
       chance to a registrant      without requiring   any regls-
       trant to be a customer or to purchase merchandise
       or to do o$her than to register without charge at
       the store, though the donor may receive a ben$fit
       from the drawing In the way of advertisement.
And on the Motion for     Rehearing,       said:
           "The 'consideration'   in this case which moves
       from the parties participating      In the drawing for
       the prize,   or prlzegto   Appellant Is entirely
       fanciful.    It is not suf;iclently    substantial to
       be.classed   as a reality.
       The principle  laid down In the Brlce case was reiterated
In F.C.C. v. American Broadcastinn Co.,        U.S. 284, 75 S.Ct.
593, 98 L.Ed;, 699 (1954).  There the  Supreme  Court held that
a give-away    program on radio and television   was not a lottery.
The Court, upon the question of consideration,     said:
           'The Courts have defined consideration            In
       various    ways, but so far as we are aware none
       has ever held that a contestant          listening    at home
       to a radlo or television      program satisfies        the
       consideration    requirement.    . . . To be eligible      for
       a prize from the 'glve-away'         program involved here,
       not a single home contestant         Is required to pur-
       chase anything,    or  pay any  admission       price or leave
       his home to visit     the promoter's       place of business;
       the only ezfort required for participation             is
       listening.
           "He believe  that It would be stretching  the
       statute to the breaking point to give an in;er-
       pretation   that makes such prcgrams a crime.
        It is our opinion that the facts in the Smith case dis-
tinguish it from this case and that the holdings in Brlce v.
State, suora, and F.C.C. v. American Broadcasting  co., ,ELQZ%
Hon. Norman Barr,      page 4   (WW-1421)


are controlling  hef;e.   You are therefore  advised that in our
opinion the game, Tel-A-Bingo"     as described ~ln your request
does not violate  Article   654, Penal Code of Texas.

                         SUMMARY
             The advertising   program described In your
          request Is not a lottery    within Article  654,
          Penal Code of Texas, because of the ,absence
          of any consideration   passing either directly
          or Indirectly   from the participant   to the donor.
                                            Yours very truly,
                                            WILL WILSON      _



                                            BY
                                                 Marvin F. Sentell
                                                 Assistant Attorney
                                                           General
MFS:bjh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Zuber
Bill Colburn
Ben Harrison
W. 0. Shultz
REVIEWEDFORTHE A!tTORNti        GENERAL
BY: Leonard Passmore
