                                 ATTORNEY GENERAL OF TEXAS
                                                GREG        ABBOTT




                                                   January 17, 2008



Mr. James A. Cox, Jr.                                         Opinion No. GA-0592
Chair, Texas Lottery Commission
Post Office Box 16630                                         Re: Whether the Texas Lottery Commission may
Austin, Texas 78761-6630                                      operate a raffle-style game (RQ-0602-GA)

Dear Mr. Cox:

       You ask whether the Texas Lottery Commission may operate a raffle-style game. You
describe such a game in the following terms:

                   Tickets would be sold at licensed lottery retail locations that have
                   access to a computer system that administers play, and plays would
                   be for a specified drawing date. A raffle-style game would differ
                   from the on-line games currently offered by the commission in that
                   there could be no duplicate tickets and in that there would be a
                   limited number oftickets available. These are the features that make
                   the game more like a traditional raffle. 1

         Article III, section 47(a) of the Texas Constitution requires the Legislature to pass laws
"prohibiting lotteries and gift enterprises in this State other than those authorized by Subsections
(b), (d), and (e) of this section." TEX. CONST. art. III, § 47(a) (emphasis added). Subsection (b),
approved by the voters in 1980, permits the Legislature to "authorize and regulate bingo games
conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans
organization, fraternal organization, or nonprofit organization supporting medical research or
treatment programs."2 Id. § 47(b). Subsection (d), adopted in 1989, provides in relevant part:

                   The Legislature by general law may permit charitable raffles
                   conducted by a qualified religious society, qualified volunteer fire



         lSee Letter from Mr. James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney
General ofTexas, at 2 (July 16,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].

         2S ubsection (c) ofarticle III, section 47, requires the Legislature to include certain provisions within the statute
authorizing bingo games.
Mr. James A. Cox, Jr. - Page 2                  (GA-0592)




                department, qualified voluntary emergency medical service, or
                qualified nonprofit organizations under the terms and conditions
                imposed by general law.

Id. § 47(d). Finally, subsection (e), approved in 1991, permits the Legislature to "authorize the State
to operate lotteries and may authorize the State to enter into a contract with one or more legal entities
that will operate lotteries on behalf of the State." Id. § 47(e). In 1993 the Legislature enacted the
State Lottery Act, chapter 466 of the Government Code, to provide for the operation ,of the state
lottery. See Act of Apr. 28',1993, 73d Leg., R.S., ch. 107, § 4.03,1993 Tex. Gen. Laws 195,205.
The same legislative session also established the Texas Lottery Commission to "exercise strict
control and close supervision over all activities authorized and conducted in this state under," inter
alia, the~State Lottery Act. Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws
1299,1299 (now codified as TEX. GOV'T CODE ANN. § 467.101(a) (Vernon 2004)).

        In a 2003 opinion, we considered the meaning of the term "lottery" for purposes of article
III, section 47(a). See Tex. Att'y Gen. Ope No. GA-0103 (2003). In reviewing the historical
development of the term, we noted that the Texas Constitution of 1845 and all subsequent
constitutions have included a prohibition against lotteries. See ide at 3. We then quoted a Texas
Supreme Court case that articulated the three elements necessary to constitute a lottery: "[1] the
offering of a prize, [2] the award of the prize by chance, and [3] the giving of a consideration for an
opportunity to win the prize." Id. (quoting City ofWinkv. Griffith Amusement Co., 100 S.W.2d 695,
701 (Tex. 1936)). We pointed out that the court declared that ofthe three, "'chance' is the [element
that] constitutes the very basis of a lottery, and without which [a game] would not be a lottery." Id.
(quoting City of Wink, 100 S.W.2d at 701).

          Attorney General Opinion GA-O 103 then focused upon the significance ofthe term "lottery"
  for purposes of subsection (e), article III, section 47, and concluded that its meaning for purposes of
  subsection (e) is much more limited than under subsection (a). See ide at 4. We first described the
  common understa1!ding of the term "lottery" in 1991, when the amendment was approved by
  the voters. Id. at 5-6. We then considered the actual ballot language presented to the electorate.
  Id. at 6. Finally, we reviewed Attorney General Opinion DM-302, a near-contemporaneous
  administrative construction of subsection (e) that had found that the voters who adopted subsection
  (e) did not thereby intend to permit the operation of slot machines. Id. at 7. Because video lottery
  terminals were not within the contemplation ofthose voters who' approved a "state lottery" in 199.1,
  we concluded that, under subsection (e), the Legislature was not authorized to permit the state to
. operate video lottery terminals as part of the state lottery. Id. at 8-9.

         An analysis of the question you pose points to a similar conclusion. As you acknowledge
 in your letter, a raffle-style game differs from the kind ofgame approved as a "state lottery" in 1991:
 there would be no duplicate tickets and there would be a limited number of tickets available. See
 Request Letter, supra note 1, at 2. This lack of duplicate tickets would mean that if an individual
 held the winning ticket, he or she need not fear sharing the prize with one or more other persons.
 The common understanding of the term "state lottery" in 1991 did not embrace the concept of a
 "raffle-style" game. A "raffle," in lay terms, is "a means of raising money by selling numbered
Mr. James A. Cox, Jr. - Page 3                          (GA-0592)



tickets." NEW OXFORD AMERICAN DICTIONARY 1405 (2001) (emphasis added). The concept of
"numbered" tickets accords with your explanation that there would be no duplicate tickets. Prizes
would therefore never be shared. 3

         But a more obvious clue points to a Yoter intent not to include "raffle" or "raffle-style" games
within the meaning of "state lottery" in subsection (e). Only two years earlier, Texas voters had
adopted article III, section 47(d) of the Texas Constitution, the charitable raffle amendment. The
electorate must be presumed, therefore, to have been aware ofthe difference between the two terms.
See Mumme v. Mars, 40 S.W.2d 31,35 (Tex. 1931) ("Constitutional provisions, like statutes, are
properly to be interpreted in the light of conditions existing at the time of their adoption ....").
Nothing in the legislative history, the common understanding of the two terms, or the ballot
proposition that offered subsection (e) indicates that either the Legislature that proposed it, or the
Yoters who endorsed it, intended to include a "raffle" or "raffle-style" game within the ambit of the
term '·'state lottery."

        Because a raffle is not authorized by any exception to the article III, section 47(a) prohibition
against "lotteries and gift enterprises," we conclude that the Texas Lottery Commission may not
operate a "raffle-style" game, as you have described it, nor may it enter into a contract with a private
entity to operate such a game on behalf·of the state.




          3This accords with the distinction drawn between a lottery and a raffle in Risien v. State, 71 S.W. 974 (Tex.
Crim. App. 1903): "If it [the scheme described] had been a lottery, unless all the tickets had been sold, and there had
been but the one prize, the keeper or exhibitor of the lottery may not have disposed of all the tickets representing the
prize, and so he would have retained both the money and the prize. But here, in the raffle, all the tickets were disposed
of, and some one was bound to win the pri~e. This, it occurs to us, is another distinction between a raffle and a lottery."
Id. at 975-76.
Mr. James A. Cox, Jr. - Page 4               (GA-0592)



                                      SUMMARY

                      The Texas Lottery Commission may not operate a "raffle-
              style" game, nor may it enter into a contract with a private entity to
              operate such a game on behalf of the state.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
