                                 The Attormy             General of Texas
                                                      ,July9, 1986
 JIM MAl-fOX
 Attorney General


 SupremeCourtBuilding           Honorable James S. EcGrath           Opinion No..JM-513
 P. 0. Box 12548
 Austin, TX. 78711. 2546
                                Criminal District I,ttorney
 5121475-2501                   P. 0. Box 2553                       Be: Whether a lottery occurs where
 Telex 9101874.1387             Beaumont, Texas   Y'7
                                                    704              persons make donations to a non-
 Telecopier 5121475.0288                                             profit organization and receive
                                                                     thereby a chance to win a painting
 714 Jackson. Suite 700
 Dallas, TX. 752024505          Dear yr. McGrath:
 21U742-8944
                                     You ask the following questions:
 4824 Alberta Ave., Suite 160
 El Paso. TX. 799052793                      1.  113 it a ‘lottery’ if a nonprofit organiza-
 915/53534&l                              tion giv#asaway artistic paintings to holders of
                                          numbered tickets, where the winners are chosen at
                                          random, ratdwhere each person receiving a numbered
 1OOt Texas, Suite 700                    ticket is asked to make a donation for' the pur-
“uston,    TX. 77002.311 t
                                          chase of art collections?
    J223-5886

                                                  If your answer to question number 1 is
                                                 2.
 808 Broadway, Suite 312                  ‘no,  would your answer be different if persons
 Lubbock. TX. 79401.3479                  making donations should be given more tickets and
 806/747-5238
                                          hence, m'xce chances of winning than those who do
                                          not make donations?
 4309 N. Tenth, Suite S
 McAllen, TX. 78501-1885        You indicate that xickets for the drawing will be made available at no
 5121882.4547
                                cost but that persons who want a ticket will be asked to make a
                                "voluntary" donation. Your letter states that all tickets will in
 200 Main Plaza. Suite 400      fact bear the statement "[dlonations of $5.00 requested."
 San Antonlo. TX. 78205.2797
 51212254191                         A "lottery" l.s,defined in section 47.01(6) of the Texas Penal
                                Code as follows:
 An Equal Opportunity/
 AffIrmalIve Action Employer                 'Lottlzy' means any scheme or procedure whereby
                                          one or mOce prizes are distributed by chance among
                                          persons who have paid or promised consideration for
                                          a chance to win anything of value, whether such
                                          scheme (81 procedure is called a pool, lottery,
                                          raffle, gift, gift enterprise, sale, policy game,
                                          or some other name.

                                See also Tex. Cons!:.,
                                                     art. III, $47.




                                                           p. 2355
Honorable James S. McGrath - Page 2   (JM-513)




     The promotion you describe is intended to raise money for a
charitable purpose. Nevertheless, as the court stated in State v.
Amvets Post Number 80. 541 S.W.2d 481, 483 (Tex. Civ. App. - Dallas
1976, no writ), "a lottery is no less a lottery if the proceeds are
used for charitable purpcses." See also Attorney General Opinion
H-820 (1976). There is only a limited "bingo" exception for charities
                                  See V.T.C.S. art. 179d.
under article III, section 47(b). -

     Under section 47.01(6). three elements comprise an illegal
"lottery": (1) one or mom prizes, (2) distribution of the prizes by
chance. and (3) the payment or promise of consideration for the chance
to win. This statutory dt,finitionechoes the established definition
of a "lottery" under article III, section 47 of the Texas Constitution
and under prior Penal Code provisions. See Brice v. State, 242 S.W.Zd
433, 434 (Tex. Grim. App. 1951); GriffithAmusement Co. v. Morgan, 98
S.W.2d 844, 845 (Tex. Civ. App. - Austin 1936, no writ). You suggest
that the element of consjderation is lacking in the situation you
describe because it is por;sible to obtain a ticket without making a
donation.   Although the courts in Brice v. State and Griffith
Amusement Co. v. Morgan fcund that no"lottery" occurred, both cases
involved promotions where 'u) charge of any kind was exacted from any
                     See also State v. Socony Mobil Oil Company, Inc.,
of the registrants. ---
386 S.W.2d 169 (Tex. Civ. Lpp. - San Antonio 1964, writ ref'd n.r.e.).

     Numerous Texas court #cases and Attorney General Opinions have
addressed proposals simila::to the one you are inves~tigatingand have
held that they constitute "lotteries." See Attorney General Opinion
H-820 (1976) (and cases cjted therein). In Attorney General Opinion
H-820, this office determined that a proposal to distribute tickets to
persons who make a charjtable "donation" of a designated sum is
indistinguishable from an outright sale of tickets. As the Texas
Supreme Court.stated in City of Wink v. Griffith Amusement Co., with
regard to a similar drawl.:

          True, no doubt l.f anyone had applied for a free
          registration to the drawing, it would have been
          given, but human nature is such that the average
          person would seldom, if at all. suffer the natural
          embarrassment of asking for a free registration.
          (Emphasis in oril;inal).       -

100 S.W.2d 695, 697 (Tex. 1.936).

     Further, the fact thztt one person receives a chance to win for
free while another person "pays" for the chance does not negate the
fact that someone in the contest has paid consideration for the chance
to win. Of course, if in Eact no one actually makes a donation, then
no lottery would occur. As a practical matter, we agree with the




                               p. 2356
Honorable James S. McGrath - Page 3      (JM-513)




court in City of Wink. If the organization did not anticipate some
donations, no drawing would be held.

     Consequently, a drawing held by a nonprofit organization where
tickets for the drawing are available for free but where persons who
request tickets a,re askei. to make a donation would constitute a
"lottery" unless no one actually made a donation. Accordingly, we
need not reach your second question.

                              .SUMMARY

             A random drawing for artwork, sponsored by
          a nonprofit organisation, in which tickets are
          available for free but where persons who request
          tickets are askei.to make a donation constitutes a
          "lottery" under ciection47.01(6) of the Texas Penal
          Code once any person actually makes a donation for
          a ticket.                         I




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney Goneral

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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