     OFFICE   OF   THE   ATTORNEY        GENERAL      OF TEXAS
                             AUSTIN




Honorable Tom Seay
county Attorney
potter county
hmarillo, Texarr
Dear sir;



          ue hare oarefull
sented in your Utter or
the oplnlon of this depar
q?ree cash Gift AWardr aa
you attatrhedto your letter
to be praotloed by a
violation or nrtfole




                         r *et     enry      psrson   in this    oity
                          ding       8ay know mr0
                                 territory
                     ore and more about tha complete
                         that we carry at the Very
                   and so that you may visit our 8torb
                             pressriptlandepartment
    and make the acquaintanceor our tine staff or
    employees, and that we may meet you an& know pU
    personally and be able to serve you bettor, W
    have adopted sn advertising plan mbereb a rrubetan-
    tial cash award will be made to the pubrio amry
    day except Sundan and legal holidays.
Honorable Tom Seay, page 2


     "The rules of this plan are aa follows:--
        1. Every person who pePtlclpateamust rin
           out one only permanentregistrationoard
            iving his true name and oorreot address.
           #iotitlousnames will not be aonaidered
           and there uelng them will not be allowed
           to partisipate. Thie registrationoerd
           makes a person eliglbls but euch person
           must sign the daily register 'bookevery
           day in order to qualify for that day*8 oash
           gift award.
       2. It is not necessary for the publio to make
          a purahase in order to partiolpate.
        3. Cash gift awards till be made at 3lSO P.M.
           every day (Sunday6and holidays excepted).
        4.    Inrormutlonrelativeto the awards will be
             posted in our windona and atore.
       5. It la not neoessary ror partlolpantsto be
          present at the time of the drawing to re-
          oeire the oash gift awards.
       6. Every day some dlsintereatedperson will
          draw a number stub rrom the box, suoh num-
          bersd atub being the rlnnin~ number ior that
          day.
        7. In the event that the name ot the pereon
           holdfag ~thewinning number does not appear
           on the daily register, $1.00 will be added
           every day until the girt award ti made to
           some person In the communitywhoee name ap-
           pears on the daily register.
        8. IIIease of any dispute, the merohant's de-
           cielon ehall be final.
        9; Store emplopaes, their ramllfes and rela-
           tives, are not eligibleto partialpeteor
           receive the oaah gift awards.
       10. IF YOU HAYE NOT XQX.STEf#D,PLEASE DO SO AT
           OlJCE
               ."
Honorable Tom &my, pa@ 3


          Your letter further #tates:
          "It Is oontended that suoh sohome does
    not constitutea lottery, beoauee there Is no
    considerationlnvolvod and that ohsnose are
    rreslp and openly given to all persons deslr-
    lug same, without regard to whether a purohaae
    la made from the mrsrohantapartlolpatlngor not.
          We believe It to be the general rule
    that ln order to oonstltutea lottary tbre
    must be three element@ present, to-wit, (1)
    oonslderatlon,(2) @heme, and (3) prize, end
    that all three such elementa must be pre6ent.
    . . .-
           We believe that Oplnlon Ho. O-2063, a6 previous-
ly given by this offloe to Honorable Prsd T. pertu, County
httorneg or murmn   county, is dlrsotly In point ror the
oaaa you have at hand.  Ne at%ach hereto a oopy or that
opinion. AS you will observe, this -Box orrlee fnouranoe*
was obtainablefrom the motion pioture theatre  by a mere
act or registration,without requlslte attendanoe at the
theatre. Also, the winner of tha award did not have to bo
present at the.theatre, but hl6 n&me as wlmer wa6 posted
In the lobby, and he oould colleot thr money at any time
wlthln thirty days; or upon hi8 tallure to present hlmarli
to receive the money, the said 6um would be given to the
rarent teachers @aoolatlon.
           Opinion Ho. O-2063 aekmwledges the readily ap-
parent qualitieeof ohanoe *nd pFlxe, and demt6s ltaelt
ehlerly to the question of oonalderatlon. In this respectt
the eases of Cole va. Stats, 112 8. W. (2d) 725, $tate ~8.
Robb and Rowley united, Ino., 118 s. w. 917, and Feather-
stone vs. IndependentServlae Station Assooiatlon,10 S. Wh
(2d) 124, are eited aa lnetanoeswherein the oourte hate
held that the oonslderatlonInvolved although to a de@ee
lntaaglblewas neverthelesseffeatlve, and that the absonee
of an aatual requiredpurohase or other lnveatmenton the
part or the would-be reolplrnt or the prize, was not aUtri-
olent to relievethe praotlce in question of the etigaaeOr
       under the olasslrleatlonor a lottery.
0onki.n~
Honorable TotsSeay, patie4



           In view of the authoritleeolted ln opinion MO.
O-2063, and the parallel clroumatanceswhioh these oases
have to the case which you present, you are respectfully
advised that it is the opinion of this department that the
scheme described by you and upon which ou request an opln-
ion does constitutea lottery in vlolat1:on or mtiole 654
of the yenal Code of this State.
                                   Very truly yours
