              E                  Y   GENE




                           November 14, 1961


Honorable Bill Pemberton               Opinion No. WW-1192
County Attorney
Hunt County Courthouse                 Re:     Whether a proposed
Greenville, Texas                              advertising plan
                                               would constitute a
                                               violation of the
                                               lottery laws, Article
                                               654, Vernon's Penal
Dear Sir:                                      Code?
     You have requested an opinion as to whether a proposed
advertising scheme would be a violation of Article 654,
Vernon's Texas Penal Code. We quote from your description of
the game as follows:
          "The proposed advertising scheme provides for
     an advertising agency working through our local
     Chamber of Commerce to contact various merchants in
     our city and to collect from each merchant a set
     fee whereby each merchant paying shall be eligible
     to participate in the advertising scheme. After
     each merchant has paid his fee he is given a book
     of registration tickets that are numbered, all
     tickets having different numbers.
          Through advertising media the general public
     is invited to come to the places of business of the
     various participating merchants to register one time
     only, free and without charge. There is no charge
     whatever to register and the right to register is
     not restricted in any manner, anyone being able to
     register.
          Periodically, the promoters of the scheme
     visit the participating merchants and pick up all
     registration cards and take the numbers from the
     cards and stamp the numbers upon small individual
     balls which balls are then placed in a cage type
     container. Then the promoter draws from the cage
Hon. Bill Pemberton, Page 2 (WW-1192)


     container 800 balls with numbers thereon and then
     from a list prepared by use of the registration
     cards obtains the names of the registrants corre-
     sponding to the numbers. Then, these 800 names
     are typed upon post cards in the form of invitations
     and mailed to the 800 individuals inviting them to
     appear free of charge, at a theatre on a designated
     date at a specified time.
          At the designated time and date the 800 balls
     with numbers thereon theretofore drawn will be
     placed in another cage container and three numbered
     balls will be drawn from the wire cage. These three
     numbers are checked against the list theretofore
     prepared and the three names are to be called to the
     audience of 800. If the parties whose names are called
     are present they are allowed to participate in a
     quiz type program whereby they are given an
     opportunity to choose a category they might be
     familiar with in order to answer questions pro-
     pounded to them in such category. If he or she
     correctly answers the questions the participant
     receives a prize, such as a free trip or cash money.
          If the participant whose name is called is
     absent then, in that event, the promoters award to
     him a consolation prize in a lesser amount than the
     prize he would have won had he been there and correctly
     answered a question.
          It might be added that the cost of the entire
     operation
     --.       is derived from the fees paid to
     promoters by the participating merchant%-?--@mphasis
     ZdFd.)
     It is further pointed out in your request that "abso-
lutely no prerequisite requirement of purchase from any
merchant in order to participate or register is required."
     Article 654, Vernon's Penal Code, prohibits the establish-
ment and operation of a lottery, and the disposition of
property by lottery, but does not define a lottery. The courts
have, therefore, adopted a definition based upon the general
understanding of the term "lottery" and it is well established
that three things must occur to constitute an advertising
Hon. Bill Pemberton, Page 3 (WW-1192)


scheme a lottery and these are: (a) a prize or prizes;
(b) the award or distribution of the prize or prizes bjj
chance; (c) the payment,either directly or indirectly,
by the participant of a consideration for the right or
privilege of participating. Cole v. State,112 S.W. 2d
            Crim. 1937), Brice v. State, 242 S.W. 2d 433,
  ex. Crim. 1951), Smith v. State, 12'1S.W. 2d 297, (Tex.
Crim. 1939).
     It is obvious that the proposed plan that you have
placed before us has the first two elements, to-wit:
(a) a prize or prizes, and (b) the element of chance,
because prizes are awarded and the persons who are allowed
to participate in the "quiz contest" are chosen purely by
chance.
     The only question is whether or not under (c) there is
a consideration present which would constitute the plan a
lottery. Please note that the consideration must 'bepaid
by the participant.
     Does the requirement that the participant go to the
store and register constitute the payment of a consideration?
The Court of Criminal Appeals in Brice v. State, holds that
it does not; In fact the Brice case is decisive of the
question before us.
     Quoting with approval from an Alabama case the Brice
opinion states:
            "The fact that the holder of the drawing
          expects thereby to receive, or in fact does
          receive, some benefit in the way of patron-
          age or otherwise, as a result of the draw-
          ing, does not supply the element of con-
          sideration paid by the chance holder for
          the chance...."
             ...if   it be entirely unsupported by any
          valuable   consideration moving from the taker,--
          there is   nothing In this mode of conferring
          it which   is violative of the policy of our
          statutes   condemning lotteries, or gaming....'"
     As to whether going to the store and registering constitutes
a consideration the opinion further says:
Hon. Bill Pemberton, Page 4   (WW-1192)



            '"Underthe 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 without charge at the store, though
          the donor may receive a benefit from the drawing
          in the way of advertising."
      The opinion is made definite and positive by Judge
Beauchamp in overruling the motion for rehearing wherein he
says :
            "The crux of the opinion lies in the third
          section, or section "c", reading as fOllOWS:
          "the payment either directly or indirectly by
          the participants of a consideration for the
          right or privilege of participaing."
          The "consideration" in this case which moves
          from the parties participating in thendrawing
          for the prize, or prizes, to appellant is
          entirely fanciful. It is not sufficiently
          substantial to be classed as a reality."
     Our opinion is in accord with Attorney General's Opinion
NO. m-652.   Our holding herein is limited to the stated
fact situtation.
                          SUMFIARY
          The proposed advertising plan which you describe
     is not a lottery because the third element essential
     to a lottery, viz., the payment of a consideration by
     the participant is absent. Prior Attorney General's
     Opinion No. ~-652.
                                 Yours very truly,
                                 WILL WILSON




WRS:lp
Hon       Bill Pemberton, page 5 (WbJ-1192)


APPROVED:
OPINION COMMITTEE
W   V. Geppert, Chairman
J     C    Davis
J, T. Walker
T. B, Wright
REXUEWED FOR THE ATTORNEY GENERAL
BY; Howard W. Mays
