                             September 30, 1969


    konorable Oscar B. McInnis            Opinion NoIYj481
    CriminalDistrict Attorney
    )ridalgO County Courthouse            Re: Whether under certain
    Idinburg,Texas                            stated facts a so-called
                                              bingo game conducted over
                                              cable TV constitutes a
                                              lottery?
    Dear Mt. McInnis:

         You have requested an opinion from this office concerning
    Ihe following facts:

                "A Cable Television Company operating in this
         area proposes to conduct a Bingo Game on their
         Cable Television System. The Cable Television Com-
         pany sells service to subscribers much like the
    -.   telephone company and included are the channels for
         the two local stations, the three Corpus Christi
         stations, three Monterrey, Mexico stations, a local
.        time   and temperature channel and local channel for
         movies   and other studio presentations of the Cable
         Television Company. The charge is $3.00 or $4.00
         per month to each subscriber for the service.

              "The proposed game would be on the order of a
         Bingo game, with cards to be furnished to anyone
         who wished to play without charge and without the
         obligation to make any purchase. The sponsor would
         see to it that Bingo cards were available at various
         outlets to anyone interested in playing. The scheme
         would probably be advertised locally in the news-
         papers, radio, and perhaps the other television
         stations, as well as the Cable Television channel.




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Honorable Oscar B. McInnis, page 2   (M-481)


     Bingo games would be played two or three nights a
     week and there would be five games.  As the numbers
     for each game were called, as soon as a winner had
     properly filled in his card he wou,ldcall the local
     number for the Cable Television Company, and, after
     a-spot verification by tele@one, a new game would
     be started until all five games had been played.
     It would later be necessary for the winner tp bring
     his card to the Cable Television Company office to
     verify that he did have a card that was properly
     issued by the sponsor. A prize of money or merchan-
     dise would be given to each winner.

         "In order to.find out what numbers were being
    called, it would be necessary for the viewer to
    watch on a television set which was connected to
    the Cable Television System. It would not be neces-
    sary for the winner tq be a subscriber to the Cable
    Television System or a member. of his family. Anyone
    who had one of the cards and had knowledge of the
    numbers being called
                   .^    would be eligible to win."

     In State v. Socony Mobil Oil Company. Inc., 386 S.W.Zd 16%
(Tex.Civ.App. 1964, error ref. n.r.e.) the court set forth the
three elements of a lottery. At page 112, the court said:

          "Thus we see that a lottery is composed of
     three.elements, to-wit: (1) a prize or prizes: (2)
     the award or distribution of the prize or prizes by
     chance: (3) the payment either directly or indirectly
     by the participants of a consideration for the right
     or privilege of participating."~

     It is clear that two of.the three elements of a lottery.d
prize or prizes and the awarding thereof by chance, are presC:.'-
in the Bingo Game as outlined in your letter. we will, there-
fore, focus our attention on whether or not the element of
consideration is present.




                        - 2298 -
    Bonorable Oscar B. McInnis, page 3   (~-481)


         The Texas Court of Criminal Appeals, in Brice v. State,
    156 Tex. Crim. 372, 242 S.W.2d 433, 435 (1951), had before it
    a scheme wherein merchants awarded~a prize or prizes by
    chance to registrants at a store, and registrants were not
    required to purchase anything but merely to register in the
    drawing. Th.emerchant thereby received the benefits of adver-
    tising. The Court said:

             "Under the authorities mentioned, we must
        conclude that in the absence of any character of
        favoritism shown to customers, the lottery statute,
        Art. 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 registrant to be a
        customer or to purchase merchandise or to do other
        than to register withoutcharge at the store, though
        the donor may receive a benefit from the drawing in
        the way of advertising."

        On Motion For Rehearing, ,the Court further held:

        "The 'consideration' in this case which moves from
        the parties participatinq in,the drawinq for the
        prize, or prizes, to arjpellantis entirely fanciful.
        It is not sufficiently substantial to be classed
.       as a reality."  (Emphasis added.)

         See also American Broadcastinq Cases, 347 U.S. 284, 98
          __- .-_-_.
    L.Ed. 699 (19541.

         From the facts you relate, no subterfuge is shown, as
    existed and found in Cole v. State, 133 Tex. Crim. 548, 112
    S.W. 725.  The mere fact that cable TV subscribers are in a
    more favorable position to win at the game does not con-
    stitute a subterfuge. Likewise, the mere fact that the
    donor may receive a benefit in the way of advertising does
    not constitute consideration for purposes of a lottery in the
    State of Texas. The only consideration apparent in the TV
    cable subscriber's contract is the payment of a fee merely to
    watch and listen. Under the instant plan a person must complete
    his bingo card, either by watching a television set connected




                            -2299-
Honorable Oscar B. McInnis, page 4   (M-481)   ‘,



to the cable system or obtaining information from  some other
person who has such a.television connection. No payment for
any purpose is necessary as a condition to receiving a prize.
and there is no requirement that a person be a subscriber in
order to win. It is our view that   any consideration, other :?,.
advertising, involved in the foregoing procedure would be
"fanciful" or inconsequential, and not fall within the terms
of Article 654, Vernon's Penal Code. In Attorney General's
Opinion No. C-108 (1963), it was held that a scheme whereby
merchants sponsored bingo on television, with the first party
calling in with a "bingo" winning a prize, was not a lottery,
the element of considerationbeing absent therefrom. In
support of this opinion is cited Attorney General's Opinions :;-s,
bers HIV-652 (1959) and WW-1421 (1962). involving similar prrre
winning schemes over TV in which the element of consideration
was not present.

     You are therefore advised that it is the opinion of this
office that the aforementioned plan of the cable television
company does not constitute a lottery within the terms of
Article 654.

                         SUMMARY

             Under the stated facts, a cable tele-
          vision company which sponsors a bingo
          type game over its facilities is not en-
          gaged in a lottery in violation of Article
          654, Vernon's Penal Code.




                                               General of Texas

Prepared by Malcolm L. Quick
Assistant Attorney General




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Honorable Oscar 8. McInnis, page 5 (M-481)


APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Cha~irman

w. 0. Shultz
Alfred Walker
Harold Kennedy
Bill Allen
Richard Chote

MEADE F. GRIFFIN
Staff Legal Assistant

BAWTEORNE PHILLIPS
Executive Assistant

NON WHITE
First Assistant       :




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