                                            EMEIRAL
                          OF   TEXAS




Hon. Gean B. Turner    OpinionNo. 0-28L3
DistrictAttorney       Re: Whether or not advertisingscheme
Johnson Count;         ("AppreciationDay") of merchantsof
Cleburne,Texas         Cleburneconstitutesa latter.

Dear Sir:

          This will acknowledgereceiptof your letter of October22,
19l~0, requestingthe opinionof this departmentas to whether or not
the followingscheme constitutesa lottery in violationof Article 6%
of the Penal Code:

         YThe merchantsof Cleburnewant officialrulingre-
    gardinga trades day plan called 'Appreciation Day'. The
    plan operatesby merchantswho pay to a caumon fund called
    AppreciationDay. These merchantsgive couponscalled
    'TreasureChest' coupons,which couponscontainmarkings
    from 5 to 50%. -Afterperchasesare made in these partici-
    pating~firms~thecustomeris given a couponwhich is
    punchedfrom any denominationfrom the 5 to $I$. The custom
    to be generallyfollowedthat a customerwho purchasesfrom
    254 to 99g in a participatingstore is given a 5% punched
    coupon;a purchaseof $1.00 to $1.99, a 10% COUpOn; a pur-
    chase of $2.00 to $2.99, a 20% coupon;a $3.00 to $3.99, a
    30% coupon;a $4.00 to 3bh.99, a LO% coupon,and a purchase
    of.$S.OOto $10.00,a 50% coupon.

          "The customerthen signs his or her name and address
     onthe back of the coupon,drops it in a box. On 'Drawing'
     day the ticketsor couponsare placed in a generalcontainer
     from which is drawn a winning ticket. The personswhose
     name is drawn is awardedthe 5, 10, 20,,30,40 and sC$ of
     the trades day fund money dependingon the percentageof the
     couponwhich is drawn.

          "A wife may answer for her husbandand a husbandmay an-
     swer for his wife.

          "If neither of these people are present,anotherticket
     or couponis drawn until someoneis actuallyawardedscme
     part of the 'Appreciation Day Money'.

          "Thoughit is the generalpracticethat ticketsor cou-
     pons be given after each purchaseor payment on account,a
Hon. Gesn B. Turner,page 2 (O-28W)



    person may requesta 'free'coupon of the merchantif
    he does not have a coupon to participatein the draw-
    ing.

          "The purposeof the plan is to create interestin
     the home communityby the merchantsgivingaway of such
     prizes. Customerswho are loyal ta Cleburneare given
     these couponsafter they have tradedwith local partici-
     patingmerchants. No considerationof value is placed
     on these tickets.

          “A folder explainingthe plan, togetherwith a
     sample of ticket,is includedherein for examination.
     The merchantswould appreciatean immediateruling on the
     legalityof this AppreciationDay plan."

          This departmenthas on numerous occasionspassed on the question
of whether or not variousmercantileadvertisingschemesconstitutea lot-
tery, and withoutexceptionhas so brandedthem when the elementsof chance,
prize and considerationhave been found to be present.

         We are enclosingcopies of three opinionspreviouslyrenderedby
this department(0-117h,O-2286, o-2563) which we believeto be directlyin
point.

          For the reasonsset forth in OpinionsNos. O-1174,O-2286 and O-
2563, and under the authoritiesthere cited, it is our opinionand you are
respectfullyadvisedthat the mercantileadvertisingscheme describedin
your letter,"Appreciation Day", constitutesa lotteryas is condemnedby
Article69~ of the Penal Code of Texas.

                                     Very truly yours,

                                     ATTORNEYGENERALOF TEXAS

                                     By /s/ Jas. D. Smullen
                                     Jas. D. Smullen,Assistant

APPROVEDCCT 28, 191rO
/s/ GeraldC. Mann
ATTORNEYGENERALOF TEXAS

APPROVED:OPINIONCOMMITTEE
BY:      BWB, CHAIRMAN

JDS:db:wb

Enclosures
