                                                             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
