HonorableJack E. Hightower             OpinionNo. WW-843
DistrictAttorney
Vernon,Texas                           Re: Whethera "profit-sharing
                                           bonus card" distributed
                                           by a groceryconstitutes
                                           a lotteryschemeas defln-
Dear Mr. Hightower:                        ed in the Penal Code?

          You have asked us whetherthe use of a "BonusCard" as defined
below Is in fact a lotteryas that term is definedin the Penal Code of
Texas.

          The "BonusCard” bears the name of a merchantand his address,
and has a serialnumber printedthereon. Printedaround the edge of the
card are a seriesof money values rangingfrom 106 to $2.00, fox a total
of $100.00. These numbersor money values ere designedto be punched
out with a hand punch each time the customermakes a purchaseat the
issuingstore. There is also a punch recordat one end of the card to
record the number of store visits by the customer. Thirty visitsmay be
recorded. On each card i&:seweda small square seal.   Under the seal there
is printedR bonus amount from lO# to $l,OOO.OO,and a skill question.

          The "BonusCard" is given free to each customer. The amount of
any purchaseis punchedon the edge. Each Friday the customercan get a
free $2.00 punch. One free store-visitpunch is made each week, punching
out "1" on the 1st week, "2" on the 2nd week, etc. If a customerdoesn't
start her card until the 5th week, “5” Is punched. Bonus store-visit
punchesare offeredfrom time to time. The bonus punchesare startedet
“30” and work backwardto the actual number of weeks.

          When the "PurchaseRecord" is comp&etelypunched,the card will
be given to the manager,at which time he will re-explainto the customer
how she can receivethe "ExtraBonus up to $l,OOO.OO."She is alreadyen-
titledto $1.00 in "SharedProfits".

          When the "StoreVisit Record" is completelypunched,the card
will be given to the manager,et which time he will break the seal to de-
terminethe amount of extra bonus the customercan win. To qualifyfor
the Extra Bonus,the customermust be able to answerthe questionsprint-
ed under the seal. (A "fact sheet" is providedfree to customerswhich
will be give\,lthem:Ithe-"skill"
                             to answer any of the questionson the cards.)
HonorableJack E.   Hightower,   Page 2. (WW-843)



          The above plan constitutesa lotteryand is a violationof
Article 654, Vernon'sTexas Penal Code.

          It is well settledthat e lotteryconsistsof three essential
elements,namely: (1) a prize or prizes,(2) the award or distribution
of the prize or prizes by chance,and (3)the paymenteitherdirectlyor
indlrectlvby the uarticioantsof a consideration for the rlaht or ~rivi-
lege of p&ticlpating. Cole v. State, 133 Tex. Grim. R. 548;112 SIW.2d
725-730(1937).
         There can be no disputetbet the first elementis present. The
prizes range from $1.00 to $l,OOO.OO.

         That there is an elementof chancepresentcannotbe questioned.
Althougheveryonereceivessomething,the amountof the prize is based
upon chance. The presenceof a "skill"questiondoes not alter the fact
that chance is the dominatingelement. AttorneyGeneral'sOpinionNo.
v-238.
          Brice v. State, 156 Tex. Grim. R. 372, 242 S.W.2d 433 (1951),
held that there was no consideration passingfrom the participantto the
merchantwhere there was no requirementthat any registrant"be a customer
or . a , purchasemerchandiseor . . . do other than . . . registerwith-
out chargeat the store,though the donor may receivea benefitfrom the
drawingin the way of advertising".In the presentcase the plan isde-
signed solelyfor customers. This office has made it clear (AttorneyGener-
al's Opinion~~-840)that in any schemewhere the customeris given an
advantageover the non-customer,  the elementof consideration  is present.

          Since the three elementsof a lotteryare present,use of a
"profit-sharing bonus card" constitutesa lotteryunder the laws of the
State of Texas.



                 The use of e "profit-sharingbonus card"
              distributedby a groceryconstitutesa lot-
              tery schemeas definedin the Penal Code.

                                           Yours very truly,

                                           WILL WIISOB
                                           AttorneyGeneralof Texas




                                              Cecil Cammack,Jr.
                                              Assistant
HonorableJack E;.HIghtoWer,Page 3. (h?f-843)



cc:aw

APPROVED:

OPINIONCOMMITTEE:

W.   V. Geppert,Chairman

Marvin Brown
Tom Burrus
CharlesD. Cabaniss
James Farris

REVIEWEDFORTESATTORNEY GENERAL
BY:
     LeonardPassmore
