Hon. James k. Barlow                 ..     opinion   NO. c-108
Criminal Dletrlct  Attorney
Bexar County Courthouse                     Re:   Whether the playing of
San Antonio 5, Texas                              bingo on television  con-
                                                  stitutes a lottery  and
Dear Sir:                                         related question.
     You have requested     an opinion        of this     office   on the follow-
ing questiona:
            (1)    ‘!I would ,llke to know whether in your
     opinion,    in view of the authorities      briefed above,
     whether you are of the opinion that the promotion
     described    in the facta portion of thie request
     constitutes      a lottery   under the lottery   law.”
            (2)    “I would like to know whether In your
     opinion,    in view of the authorities    briefed above,
     whether the promotion herein described constitutes
     a ‘gift    enterprlae’   or ‘evasion 1nvol:ving: the lottery
     principle’     violating  the public policy of this
     State and flubject to Injunction     at the request of
     the State.
      The following   information-        was submitted     with the opinion
request:
             “Cards of the normal bingo type will be
      distributed   by merchants or other advertisers    ae
      well as by the TV station.      The cards ~~111 change
      In color from time to time and the game must be
      played on a current card.,    The cards will be
      given by themerohant     to the player and will coat
      the player nothing except the time and effort
      to pickthem up.     It is implied that the merchant
      will pay for the time of the.:atation land the prdzee
      and will pay the promoter for the use of the plan.
      which is protected   by copy-right.     The exact details
      of the financial   arrangements have not been disclosed.
      The cards are not to.be connected with the sale
    “of merchandise and ~‘111 be free to the player at
      the merchant’s place of bualness.
                         .A   ‘.              ,’
                                                                                ,.

    Hon. James E. Barlow,                page 2 (,c-108)


                   “At a set time, bingo numbers will be selected
             by the announcer on television    in full vlew of the
             audience, and the first party to call In with the
             bingo numbers covered (It will be black-out      or
             cover-all  bingo) wlll win a prize of $25.00.       Ottfers
             will receive merchandise certificates     as prizes.
‘            Article   3, Section             47 of the Constitution        of Texas pro-
    vides:
                    ‘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 enterprlaes      or other evasions in-
             volving the lottery     prlnctple,    established  or
             existing   in other states.
           Our courts have held that, In order to establish         a thing
    as a lottery,    three things must concur:       (1)  a prize or
    prizes;   (2)   the award or distribution     of the priselor     prizes
    by chance; (3)     the payments either dlrectIy.or     Indirectly     by
    the participants     of a consideration   for the right or priv-
                                  FJ                                  rvice
    ~~~~~o~~A~~~~:~~~~‘“~~ S:W;2ds;24 (Tex.Clv.App.dtt28);
    @ebb & Rowley        ted. Inc         at    127 S.‘W,2d 221 (Tex.
    civ.App.   1939); Brice v.’ State, 15?Tex.Crlm.       372, 242
    s;w.hl 433.
           Under the set of facts presented,  unquestionably,  two
    .o~f the elements, prize and chance, are present.    The question
    for our determination    la whether or not the element‘of  con-
    sideration    is present under the plan submitted.   By Attorney
    General Opinions ~~-652 and WW-1421, copies .of which are
    attached,   it was our opinion in similar fact situations    that
    the element of consideration    was not present.   We have recon-
    sidered these opinion8 and reaffirm them.
         Therefore,       the answer               to your first    question         IS answered
    in the negative.
        ‘. In ‘determining the meaning of “gift enterprises”     as that
    term le’uaed~.ln Section 47 of Br6lcle III of the %onetltutl!on
    It Is necessary to ascertain     the meaning of such term. at the
    time of the adoption of such section of the Constitution.
            er’s Ins..Co.   v. MarahalL 124 Tex. 45, 76 S.W.Ed 1007
                Especially  helpful In ietermlnlng    the meaning 6f the
            &ii enterprise”   ia~lts relation   to former statutes.

                                                             .,

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                                   ‘..

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                                         a-                  <Xi.
  Hon. James E, Barlow,    page   3 (C-108)           .'~'


         Only two years prior to the adoption of       Article III,
   Section 47 of the Texas Constitution,     supra,    the Legislature
   enacted a statute providing for.the    licensing     of "gift
   enterprises".   Paschals' Digest of the Laws       of Texas,, Section
 : 7708- "Gift enterprise"    was defined therein      as follows:
             'For every gift enterprise,   $500. Every
       person, firm or corporation    who shall sell any-
       thing with a promises either expressed or Implied,
       and give anything In consideration    of such aale
      -and purchase> shall b$ regarded as the proprietor
       of a gift enterprise.
..,
        There appears to be no sale with a promise, either expressed
  or Implied, accompanied wlth'~the giving of anything In consid-
  eration of a sale and purchase under the facts given.      Conae:
  quently, it appears that the playing of bingo, under the,,facts
  stated does not fit the deflnltlon   of a "gift enterprise   +
         No cases were found which expressed in any degree of
  clarity    what 'other evasions Involving the lottery~prlnclple"
.constltute.      The courts have struck down various schemes, but
 :always on the basis of being a lottery,          The lottery    principle,
  as stated,above,     has three essential    elements:    prize;    chance,
  and consideration.        It would appear, therefore,    that to be an
  evasion Involving the lottery       pr+nclple the same essential
  elements would have to be present,.        Here, again, we do not have
  the essential     element of consideration     and so It is our
  opinion that the plan in question Is not an evasion Involving
  the lottery    principle.
                            SUMMARY
              Under the facts presented the playing of bingo on
       televlson    is not a lottery    or an evasion Involving the
       lottery   principle    as the element of consideration   1s not
                   Nor does the playing of blngo.on television
       ~~~$n&e      facts given fall within the definition     of a
       "gift enterprise     .
                                     Yours very truly,

                                     WAGGONER CARR
                                     Attorney General        of Texas



                                      -1rwln R. Salmanson
                                       Assistant Attorney..General

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Hon. James E. Barlow,   page 4 (c-108)


1RS:cjp
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. S. Bracewell
Murray Jordon
Robert Lewis
Malcolm Quick
APPROVEDFOR THE ATTORNEY
                       GENERAL
By: Stanton Stone




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