                THEA~TORNEY                   GENERAL
                            OF TEXAS
                           Auemx~    11.-
  W3I.L WIIBON
ATl’ORNEY  aENEl%AI.           September 11, 1957

    Honorable E. James Kazen        Opinion No. WW-222
    District Attorney
    49th Judicial District          Re:     Whether a game called "Play
    Laredo, Texas                            Marko" is a lottery.
    Dear Mr. Kazen:
              You have requested an Opinion as to whether a game
    called "Play Marko!'is ?n violation of the Texas Penal Laws.
    Honorable Joseph H. Mims, District Attorney, Midland, Texas,
    also requested an Opinion as to the legality of "Play Marko."
    This Opinion is, therefore, being written in response to these
    requests.
               As I understand the game "Play Marko", as described in
     your request and in the advertising materials which each of you
     forwarded, lt Is similar to the well-known game of "Bingo," al-
     though played on television.
              A copy of the contract to be entered into between a
    television station and local merchants or other advertising firms
    was forwarded. This contract provides that the t,elevFsionsta-
    tion sells a quantity of the small cards upon ;Ihichis printed
    the letters "M A R K 0". There are five numbers in a vertical
    row beneath each of these letters. The contract provides that
    these "Marko" cards will then be dlstrlbuted by the retail mer-
    chant or advertiser who buys them from the television station to
    those who ask for them without charge and with no requirement of
    a purchase being made.
               During each week the television station provides time
     for the playing of the game "Marko". A person in the station
     studio takes balls from a container. Upon each bell is printed
     one of the letters, I'M","A", "R", "K", or ,'O",and a number.
     This letter and number is then shown on the telev:sion screen.
     If the viewer's card has a match!.ngnumber and ietter, the num-
     ber is covered with an object. When a viewer has covered five
     numbers in a row, either horizontally, diagonally, or vertically,
     he has what is called a "Marko'!. He then calls the television
     station to have his card verified against a master card In the
     studio, and if verified as to having a "Msrko", he is declared
     the winner of that game. The number of games played is deter-
     mined by the amount of time given to that particular program by
     the television station. New cards may or may not be distributed
     each week. The television station agrees to furnish prizes to
     the winners.
Hon. E. James Kazen, page 2            WW-222


          Two questions are asked, being, Does the game "Play
Marko" violate the Penal Statutes of Texas:
            1.   When a prize is given to the winner by the
                 television station?
            2.   When the television station requires that
                 the first person getting a Marko must then
                 answer a so-called "skill" question correct-
                 ly as a condition precedent to being de-
                 clared a winner and eligible to receive a
                 prize?
            Section 47 of Article III of the Constitution of Texas
provides:
          "The Legislature shall pass laws prohibiting the
    establishment of lotteries and gift enterprises in this
    State, as well as the sale of tickets in lotteries, gift
    enterprises or other evasions involving the lottery prin-
    ciple, established or existing in other States."
            Article 654,   Vernon's Penal Code, provides:
          "If any person shall establish a lottery or dis-
    pose of any estate, real or personal, by lottery, he
    shall be fined not less than one 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,,finednot less than ten nor
    more than fifty dollars.
          Since a lottery is not defined in the statutes, to de-
termine whether a particular scheme or"game is a lottery, it is
necessary to examlne the court decisions. No Texas decision nor
prior Attorney General's Opinion can be found on the exact game
you describe.
          It is well settled that a lottery consists of three
essential elements, namely: (1) a prize or prizes, (2) the award
or distribution of the prizes or prizes by chance, and (3) the
payment either directly or indirectly by the participants of a
consideration for the right or privilege of partici ating. Cole
v. State, 133 Tex. Crlm. 548 112 S.W. 2d 725 (i?387; City of
Wink v. Griffith Amusement Cimpany 129 Tex. 40, 100 S.W. 2d
695 (1936); Smith v. State, 136 Tei. Grim. 611, 127 S.W. 2d 297
(1939); &ice v. Stati, 242 S.W. 2d 433 (Tex. Crlm. 1951).
          Many courts have taken judicial notice of the countless
varieties of schemes which have been "Invented" attempting to
circumvent the lottery laws. It has been aptly stated recently
Hon. 6. JAmes Kazen, page 3         WW-222


by the United States Supreme Court in F.C.C. v. American Broad-
casting Co., 347 US a 284 (1954) :
          "Enforcing such legislation has long been a dif-
    ficult task. Law enforcement officers, federal and
    state, have been plagued with as many types of lotter-
    ies as the seemingly inexhaustible ingenuity of their
    promoters could devise in their efforts to circumvent
    the law. When their schemes reached the courts,  the
    decision, of necessity, usually turned on whether the
    scheme, on its own peculiar facts, constituted a lot-
    tery. So varied have been the techniques used by pro-
    moters to conceal the joint factors of prize, chance,
    and consideration, and so clever have they.been in ap-
    plying these techniques to feigned as well as legitimate
    business activities, that it has often been difficult
    to apply the decision of one case to the facts of an-
    other."
          Question No. 1, where no skill question Is asked.
          It seems clear that the essential elements of "prize!'
and (Ichance!'
             are present. The difficult que:tion for determina-
tion concerns the element "consideration.'   D . .(3) the payment
either directly or indirectly by the participants of a consider-
ation for the right or privilege of participating.V
          As noted, the merchant or advertiser buys the Marko
cards, and in turn, distributes them free of i;%;ri-ge.The public
can secure these cards only from those advertisers who nave pur-
chased them, Likewise, the advertisers can get tne cards only
from the television station tha,i:has purchased the franchise
right from the owner to play this game over its zta.c:on. The
consideration for the game is present, althougc jr;does not move
directly from the player. The next question i3 whether it moves
indirectly from the player. It is believed that this question
is answered In State v. Smith, 136 Tex, Grim. App. 611, 127 S.W.
2d 297 (1935) . ThFr case invoived a scheme known as "Noah's
Ark." Here a number of merchants paid a license fee to a pro-
motor and received cards to be distributed to customers. These
cards had ten blank spaces upon Wnich were to be placed ten
stamps. The cards were distributed to those who would   ask for
them upon exchanging a wrapper or a facsimile thereof from mer-
chandise similar to that sold in the store. There was no re-
quirement that the cust,omerbuy anything before receiving a
card. The stamps were distributed in the same manner. Wnen ten
stamps had been placed upon a card the customer would then
sign his name and drop it into a large container. At,designated
times a drawing would be had and the person whose card was drawn
would receive a prize paid for by the promoter. The argument
that this was not a lottery was based on the fact that no con-
Hon. E. James Kazen, page 4        ww-222


sideration passed from the donor of the prize to the recipient.
In refuting this argument the court, speaking through Judge
Graves, made'this statement:
         "Bearing in mind that consideration may move
   either directly or indirectly from the person re-
   ceiving the prize to the donor thereof, we are im-
   pressed with the fact that the consideration for
   the entering into such a contest for this prize
   came Indirectly from the hands of the merchant who
   joined the 'Noah's Ark' and paid appellant (pro-
   moter or donor of the prize) a license fee there-
   for, thus furnishing the consideration for all the
   participants who entered such contest from his
   store or place of business.    . . Moving indirect-
   ly, it may be for the benefit'of the contestant,
   through the merchant or dealer who also received a
   benefit therefor, presumably at least in the ad-
   vertising that he was obtaining as well as playing
   upon the natural cupidity of mankind to obtain
   something for nothing, and thus moving it completes
   the trinity of a prize arrived at by chance, and
   based upon a consideration, not only given by the
   contestant but received by the donor.
On motion for rehearing, Judge Krueger gave additional reasons
as to why there was consideration, using language as follows:
          "It is quite clear to us from the record
    that each business establishment which contributed
    a certain amount of money in order to join this
    'Noah s Ark' and by whom the prize is paid, receives
    a card or cards and stamps symbolic of some animal.
    These cards are furnished to the merchant or business
    establishment, and by them distributed to customers
    or others who come to the establishment. . . . It IS
    obvious that the dealer, merchant or business estab-
    lishment not contributing to the prize, did not re-
    ceive any card or stamp for distribution. Consequently,
    parties desiring to secure a chance at the prize would
    necessarily have to go to such merchant or business estab-
    lishment as had contributed to the general fund. As
    a result, the good will and patronage of the person
    favored with the cards is,secured. This patronage,
    whatever it may be, is given in exchange for cards and
    stamps, which is an indirect benefit to the operator
    of the scheme, and enables him to continue his game of
    chance. It 1s a bait handed out to the gullible as an
    Inducement to become customers of the dealers or mer-
    chants subscribing to the plan.'!
     -_
-.

          ,




              Hon. E. James Kazen, page 5         WW-222


                        Applying the facts of the Smith case to the game of
              Marko, we find that the merchant who buys the Marko cards from
              the television station for distribution to the customers who
              come to the store Is furnishing a consideration for all those
              who play the game.
                        The Smith case is directly in point. If the scheme
              in the Smith case was a lottery in violation of the Texas law,
              then the'scheme Involved in "Play Markollis also a lottery in
              violation of the Texas law.   The answer to Question No. 1 is,
              therefore, the game "Play Marko" is a lottery and violates
              Article 654 (V.P.C.).
                        In reaching this conclusion, we are not unaware of the
              recent decision in Caales Co. v. United States, 243 F. 2d 232
              (U.S. Ct. App. D.C. 1957). In this case, the Federal Communi-
              cations Commission had issued an order declaring that Play Marko
              was a lottery. On appeal from this ruli~ng,the Court of Appeals
              reversed the F.C.C.. holding that the essential element !!consld-
              eratlon" was lacking, basing its decision upon F.C.C. v. Ameri-
              can Broadcastinw Co., 347 U.S. 284, 75 S. Ct. 593, 99 L. Ed.
              699 (1954)0 In our opinion, the dissenting opinion of J. Dana-
              her &the   Canles case, in which he distinguished Marko from
              the type of program involved in the American Broadcasting Co.
              case, is more consistent with the element of consideration as
              interpreted by the Texas courts in lottery cases.
                        The possibility that the game Marko might be held to
              be a lottery by State law Ls.recognized in the adverj;isi~ng,,bro-
              chure of the Caples Company;(owners of the copyright game 'Play
              Marko"), where it states, Marko is a legal prize show,,and as
              such may be broadcast on any station where state laws are In con-
              formity with Federal laws." (Emphasis added!.
                        Question No. 2, where a skill auestlon Is asked.
                        An alternative method of playing Mark0 Tequires that
              the erson who first gets a Marko (5 objects in a row on his
              cardP must then correctly answer R skill ques:lon before finally
              being declared a winner, The question then is whetneT>the re-
              quirement of the correct answer to the skill question removes
              the element of chance from Marko?
                        No Texas case directly in point can be found. There
              have been only a few cases involving an alleged lottery in which
              the Texas court held that the game or scheme was not a lottery.
              See Brice v. State, 242 S.W. 2d 433 (Tex. Civ. App. 1951). Other
              than the type of promotional scheme used in the Brice case (mer-
              chandise given to registrants at the opening of a new store,
              with no requirements precedent for registration), the Texas courts
              have been quick to condemn promotional schemes as a lottery.
Hon. E. James Kazen, page 6        WW-222


          In determining whether a particular scheme is, or Is
not, a lottery, the court looks at the plan In its entirety ard
to the basic idea unon which the game is based. However. the
primary object of the court's examination is whether the element
of chance is present. The Court in City of Wink v. Griffith
Amusement Co., supra, approved the following statement from
another jurisdiction. "The ingredient of chance is. obviously.
the evil-principle which the law denounces and will eradicate;
however It may be clothed, or however It may conceal itself in
a fair exterior." The Court of Criminal Appeals has adopted
similar language in Cole v. State, supra, at page 727, where it
stated, "The court will inquire. not Into the name. but into the
game, however skillfully disqulsed, in order to ascertain If it
is prohibited, or if it has the element of chance."
          In line with the tests used by the courts In determln-
ing the true nature of the game, it is proper to examine state-
ments of the promoter of the game. &. Mims forwarded an adver-
tising brochure of the Caples Company, Chicago, Illinois, which
states that this company is owner of the copyright "Play Marko."
The Marko cards apparently are furnished by the Caples Company
for a consideration paid by the television stations. This ad-
vertising brochure contains the following remarks which are~per-
tinent to our inquiry: "Mark0 is a prize give away program;
the blgser the prizes, the more popular the program with the
viewers ;   Grand Prizes are very effective. An automobile, a
big vacation trip or s:me zther major prize will increase inter-
est and audience . . . ;   Play Marko is a game of chance. This
is its appeal . . . the fact that every player has an equal
chance to win"; "Play Marko is simply old fashioned Lotto or
Bingo produced as a television show, without cost or considera-
tion to the player at home."
          Even with a question of skill, there is no doubt that
those who become eligible to answer the skill question are de-
termined by an element of chance. No Texas lottery case can be
found involving a mixed ame of chance and skill. In Adams v.
Antonio, 88 S.W. 2d 503 7 Civ. App. 1935, error ref.), the ques-
tion involved was whether a marble table was one of skill or
one of chance. Justice Alexander noted that Article 619 (V.P.C.),    I
condemning gaming devices, made no distinction between games
of chance or games of skill, and made this comment, "However, if
a decision of this question be necessary to a solution of the
case before us, it is our opinion from the evidence that the
element of chance, as the game is played, so predominates over
the element of skill as to make the game essentially one of chance
and not of skill."
           In Hoffman v. State, 219 S.W. 2d 539 (Civ. App. 1949),
the game sought to be condemned consisted of a board with holes
cut into it with the player throwing different colored balls into
Hon. E. James Kazen, page 7         uw-222


this surface. The object of the game, like Marko and Bingo,
was to line up the balls In a row, vertically, horizontally or
diagonally. The contention was made that this was a game of
skill, since the players developed skill in the throwing of
the ball onto the surface. In condemning the game as one of
chance, the court emphasized Article III, Section 47, of the
Texas Constitution as follows, "The legislature shall pass laws
prohibiting the establishment of lotteries . . . or other eva-
sions lnvolvina the lottery nrinciole." (Emphasis by the
court). Continuing, the court said, "Cur constitutional pro-
visions against lotteries, 'or other evasions Involving the
lottery principle' is strongly worded, the same or similar
language appearing in all preceding Constitutions; being uni-
formly construed 'with a view to remedying the mischief intended
to be prevented, and to suppress all evasions for the continu-
ance of the mischief, 54 C.J.S. Lotteries, Section 19, p. 862."
The court concluded as follows: "That we believe it is almost
impossible for the most ingenious and subtle mind to devise any
scheme or plan, short of a gratuitous distribution of his own
property that will not be held by the courts of this State as
in vlolaiion of the foregoing statute." (Emphasis by the court.)
          Prior Attorney General's Opinions have discussed at
length the schemes involving mixed elements of chance and skill
in~the determination of a winner of a contest. In Attorney Gen-
eral's Opinion No. v-238, June 7, 1947, it was,,heldthat a
cooperative advertising plan known as Bonanza was a lottery.
Opinion No. V-1483, July 18, 1952, discussed the legality of
"Quiz Bank" or "Quiz Shows". This opinion shows the inherent
difficulty in determining whether chance 'or skill predominates
in any particular scheme. In Opinion No. O-1789, December 22,
1939, the quiz show 'Dr. I. Q." was held not a lottery, the win-
ners being determined solely by their answers based on skill or
prior knowledge. In Opinion No. V-544, April 13, 1948, it was
held that whether the "Bank of Knowledge" was one of skill or
one of chance would depend upon the type of questions asked,
whether the answers to the qu~estionsasked would be based upon
prior knowledge or upon guess.
          From a review of the analogous Texas cases, the reason-
ing used by the courts in the various decisions concerning lot-
teries, and based upon prior Opinions of this office, in our
opinion, the game of "Play Marko", even though the ultimate win-
ner would be required to answer a skill question, is primarily
a game of chance, and is, therefore, a lottery, and violates the
constitutional provisions and statute prohibiting lotteries.
                          SUMMARY
          The game "Play Marko" is a lottery in vio-
    lation of Section 47 of Article III, Constitution of
Hon. E. James Kazen, page 8          WW-222


    Texas, and Article 654, V. P. C., because it ln-
    volves the elements of (1) giving a prize, (2)
    based on chance, and (3) the payment of a consid-
    eration for the privilege of participating In the
    game; and even though the winner of the game must
    answer correctly a skill" question before re-
    celving a prize, It is still essentially based on
    chance, and Is a lottery.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas

                                By s/Edwin P. Horner
                                     Assistant
EPH:cm:wc

APPROVED:
OPINION COMMITTEE:
George P. Blackburn, Chairman
John Reeves
E. M. DeGeurin
REVIEWED FOR THE ATTORNEY GENERAL
BY:
    James N. Iudlum
