              THEATTORNEY                   GENERAL
                       OF         TEXAS

                           Aus-     aa, TExAe



                             March 29, 1961


Mr. A. W. Davis                       OpinionNo. WW-1030
DistrictAttorney
50th JudicialDistrict                 Re: Whetherthe "GoodwillAward
Paducah,Texas                             Promotion"under the facts
                                          stated~constitutesa lottery
                                          violativeof Section47, Article
                                          III, Constitutionof Texas and
Dear Mr. Davis:                           Article 654, Vernon'sPenal Code.

       The followingopinionis renderedpursuantto your requestand is
based upon materialsubmittedsettingforth the procedurefor operationof
"GoodwillAward Promotion"-
                         which procedurewe quote:

      "B            - A week to ten days before the date of the
      first drawinga representative  of GoodwillAdvertisingCo.
      is placed in the stqreto registereveryonewho comes in
      to it.

          "(a) A desk or table is set up insidethe store
               but outsidethe sales'area.

          "(b) The representative ask!,the store visitor if
               he or she wishes to register- and if so, per-
               mits them to do so and explainsthat there is
               to be a drawingevery week and that X amount
               of dollarswill be given away on those nights -
               the day and time statedto the registrant.
               Registrantis also told that the drawing is
               free and that it is not necessaryto buy any-
               thing to be eligible.

          "(c) Upon registeringon a master registrationsheet,
               the registrantis given a qualification  card and
               advisedagain - "Thesedrawingsare every week,
               startingon        day at       P.M. The drawing
               will be held%%de,'in     front of the store,
               announcedover a publicaddress system,both in-
               side and outsidethe store. If your name is
               called,you shallbe declaredthe winner, if
               your card has been punchedand you present it
               within the allottedtime.
               (The time allowedis printedon the card, as
               well a8 the time of day, dates, rules of the
               promotionand full instructionsgoverningthe
               game.)
Mr. A. W. Davis,Page 2   (WW-1030)


          "(d) The qualification card is punchedfor the first
               drawingbut the registrantIs instructedthat
               they must get it punchedfor subsequentweeks~
               In order to be eligiblefor the drawing. A
               cashieror a girl at the CourtesyBooth will
               punch and qualifythe cards.

          "(e) One registrationis good for all drawings,r:so
               long as the promotioncontinues.

      "Transcribing to ControlCards - This plan has a uniqueway of
      controlby transcribingnames from the master registrationsheet
      to alphabeticaland numerLca1controlcards which operatein
      such a way that one who might registermore than once will not
      have but one number in the drum -- thusly every registranthas
      an equal chanceon drawingnight,,,which stems from a numbered
      tab attachedto the alphabeticalcard, taken from it upon it
      being used and being placed in a revolvingdrum.

      "DrawingNight - The Master of Cermonieswill pick judges from
      volunteersin the audienceas well a8 a child who does the
      actual drawing. The numberedtab drawn from the drum by &he
      child is comparedto the numericalcontrolcard which the
      judgeshave in possessionand the,nameappearingon that card
      14 declaredthe winner.

      "It is usual for the storeto award smallpresentsto the judges
      and the child as'8 thank you for their servicesthoughthis is
      not an actual part of the promotion.

      "If a winner on any given night does not appearto collecthis
      prize,that amount of money becomesa part of a largerprize
      to be given away the followingweek.                ,
      "At the end of the term of the promotionany money not dis-
      tributedon prior nights will be drawn for until a winner
      does appear -- so that the total aurnagreed upon at the
      startof the plan is disbursedto the registrants.

      Vuring the conversationby the+ster of Cermoniesproceed-
      ing every drawingit is clearlyexplainedto his listeners
      that et no time is it necessaryto bdy anythingin the store
      in order to participatein this give away p-tion   plan."

       While no Texas Statuteattemptsto define a lottery,and Legislatures
of other jurisdictions generallymake no attemptto definea Lottery,the
text materialand case law of the overwhelmingmajority,includingour own
jurisdiction, are uniform in settingforth the necessaryelementsof a
lottery,namely: (1) A prize or prizes,(2) the award or distributionof
 .     .




Mr. A. W. Davis, Page 3   (WW-1030)



the prize or prizes by chanceand, (3) the paymenteitherdirectlyor in-
directlyby the participantsof a consideration  for the right or privilege
of participating.Cole vs. State, 133 Tex. Crim. 548, 112 S.W.2d725
(19381; City of Wink vs. GriffithAmusementCo., I.29Tex: 40, 100 S.W.2d
695 (1936); Smith vs. State, 136 Tex. Grim. 611, 127 S.W.2d 297 (1939);
Price vs. State, 242 S.W.2dli33(Tex. Crim. 1951); F.C.C. vs. American
BroadcastingCO., 347 US 284, (1954);34 Am. Jur. 647 lotteries,Sec. 3.

      There can be no doubt that the first two elements,"prize"and
"chance",exist in the procedurefor the operationsubmitted,therefore,
your inquirypertainsto whetheror not the third element,"consideration",
is present. In reachinga conclusion,there are at least two possibleap-
proaches:
           (a) The considerationrequiredto be paid x  be
               any consideration
                               that would supporta simple
               contract,or

           (b) The consideration
                               requiredto be paid must be
               a valuableconsideration.

       While the cases cited above do not describethe necessaryconsider-
ation,they do seem to negativethe posiibilitythat any consideration  which
would support.a simple contractis sufficientto supplythis third and final
element. On the contrary,the leadingcase in Texas of Brice vs. State,
 supra, standsfor the propositionthat,therequisiteconsideration  must be
valuable,citingwith approval,GriffithAmusementCo. vs. Morgan, 95 S.W.2d
'884(civ.App. 1936). In the Brice case the defendantwas chargedby complaint
and informationwith violations of Article654 E.C., the allegedviolationbeing
the merchant'sinvitationto the generaipublicto'comsinto his store and
registerfor a prize to be given away. Anyone could registeronce each day
for a three day period and thus become eligiblefor the drawingby going to
the store and writinghis name, address,and telephonenumber on a registration
 card. One could not be a prize winnerwithout so registeringat the store;no
registrantwas requiredto buy anythingor be at the store at the time of the
drawing. Concedingthat the elementsof prize and chancewere shown by the
facts above the court held:

              "Underthe authoritiesmentioned,we must conclude
           that in the absenceof any characterof favoritism
           shown to customers,the lotterystatute,Art. 654,~.~.,
           is not violatedunder a plan wherebya merchantawards
           a prize or prizesby chanceto a registrantwithoutre-
           quiringany~registrant to be a customeror to purchase
           merchandiseor to do other than to registerwithout
           chargeat the store,thoughthe donor may receivea
           benefit from the drawingin the way of advertising."
Mr. A. W. Davis, Page 4   (WW-1030)



       The Austin Court of Civil Appeals in the case of GriffithAmusement
Co., vs. Morgan, supra, held:

              "As above statedit is essentialto a lottery
          that somethingof value must:be paid for the chance
          to win the prize. The elementof venture,the chance
          to lose or win somethingof value is essential...

              "The fact that the holderof the drawingexpects
          therebyto receive,or in fact does receive,some bene-
          fit in the way of patronageor otherwise,as a result
          of the drawing,does not supplythe elementof con-
          siderationpaid by the chanceholder for the chance."

       Assumingthe facts as outlinedabove in the proceduresfor operation
of GoodwillAward Promotionit seems clear that this promotionis identical
to that involvedin the Brice case, supra. No person ,isrequiredto make a
purchaseat a participatingstore to become eligiblefor an award; any
personmay convenientlyregisterand become eligiblefor an award; the
transcribingprocedureoutlinedabove makes it evidentthat all registrants
have an equal chance on &awing night,'noadvantagesbeing affordedcustomers
of a participatingstore who may actuallymake purchasesat the store in ad-
ditionto registering.

       It is our opinion,from the facts as outlinedby you, that the neces-
sary elementof considerationis absent,and further,the GoodwillAward
Promotiondoes not constitutea lottery.

       It is noted that the SupremeJudicialCourt of Maine in the case of
State of Maine vs. Russiere,154 A.2d 702, (1959)had before it an identical
promotion,namely, "GoodwillCash Bight". The Maine Court held:
              "In order to constitutea crime under the statute
          in question,three elementsmust be present,~$7.:(1)
          prize, (2) chance,and (3) a consideration   having a
          pecuniaryvalue paid directlyor indirectlyby some
          participant. Under the facts in this case the third
          elementis not present,and the defendantcannotbe
          found guilty of the crime charged."


                                S U M'M A R Y

          The GoodwillAward Promotiondoes not constitutea
          lottery,under the submittedfacts,becauseof the
          absenceof a valuableconsideration.
 .   .   .




Mr. A. W. Davis, Page 5   (WW-1030)




                                      Very truly yours,

                                      WILL WILSON
                                      AttorneyGeneralof Texas




                                        Maston C. Courtney       I/
                                        AssistantAttorneyGeneral
MCC:br

APPROVED:

OPINIONCOMMIYTER
W. V. Geppert,Chairman

Jerry Roberts
DudleyMcCall8
John Phillips

REVIlBEDFORTREATTORK?XGENERAL

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