Hon. R. L. Lattimore          Opinion No. C-50
Criminal District Attorney
Hidalgo County                Re:    Wheth$r "Lucky Car
Edinburg, Texas                      Night > a give away
                                     program, constitutes
                                     a lottery under the
Dear Sir:                            stated facts.
          You have requested an opinion of this office on
the following questions:
                 1. "Whether 'Lucky Car Night', a give
            away program $onstitutes a lottery under the
            stated facts.
                 2. "Whether the answer would be
            different If the theatre, through some
            method of general circulation, freely
            distributed the registration cards to
            parked cars in the towns in $he area
            being served by the theatre?
          The following Information was submitted with the
opinion request:
                 "Every night of the week the regis-
            tration cards are available at the Box
            Office out side the theater and also at
            the Snack Bar Inside the theater on
            request of anyone, not under 18 years of
            age, who drives a car to the theater.
            When a car is entering the theater, a
            registration card is given to the driver
            when the theater ticket is purchased.
            There is no limitation on the number of
            times anyone driving a car may register,
            (their car) and additional registration
            cards are given at any time upon request.
            Following the drawing each Tuesday night
            the card drawn, winner or not, is
            placed on the bulletin board on the
            Snack Bar, and a copy of such card is
            displayed at the Box Office. Each

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Hon. R. L. Lattimore, page 2   (C-50   1

          Tuesday the sign in front of the
          theater, in addition to advertising
          the two features showing that night,
          also has the words 'Lucky Car Night'.
          Anyone desiring to register without
          paying admission and entering the
          theater may drive to the Box Office,
          located outside the theater, request
          a card, fill it out and return it to
          the Box Office. The drawing is conducted
          each Tuesday night inside the theater
          and the winning car is announced through
          loud speakers at the Box Office and the
          Snack Bar." (words in parentheses
          not part of quote)
          On the reverse side of the registration card is an
explanation of the procedure followed by the Drive-In.
               "How It Works
               "1. Winning car will be announced
          at a drawlng through loud speakers at
          the snack bar and box office of the
          BUCKHORN DRIVE-IN THEATER at 8:45 P.M.
          every TUESDAY, to be eligible to
          receive the award, If your car is
          announced as a winner, you must present
          your car to the outside box office or
          inside snack bar within 5 minutes after
          your car has been announced.
               "2. If the award is not claimed
          within the specified time, it will be
          carried over to the following week
          and $10.00 or more will be added
          weekly until a qualified winner appears.
          If the award reaches $500.00 a second
          will be started and 2 or more names
          announced.
                "3. The success of this plan
          depends upon free participation
          therefore, registration, qualifi-
          catiofland awards are absolutely
          free.
          Article III, Section 47 of the Constitution of
Texas provides:


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Hon. R. L. Lattimore, page 3    (C-50   )

               "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
          principle, estabiished or existing
          in other States.
          Pursuant to this constitutional command, the Leg-
islature passed Article 654 of the Penal Code, which reads
as follows:
               "If any person shall establish a
          lottery or dispose 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 tickets or part
          ticket in any lottery, he shall be fined
          not less,,thanten nor more than fifty
          dollars.
          In 2% Texas Jurisprudence, 409, we find the follow-
ing definition of a lottery:
               "The term lottery has no technical sig-
          nification in the law and since our statute
          does not provide a definition, its mean-
          ing must be determined from popular usage.
          According to that test a lottery is a
          scheme for the distribution of prizes by
          lot or chance among those who have paid or
          agreed to pay a consideration for the
          right to participate therein, for the
          distribtulon itself." (Emphasis added).
          Under the set of facts presented unquestionably
two of the elements, prize and chance, are present. The
question for our determination is, therefore, whether or
not the element of consideration is present under the plan
submitted.
          Various "Bank Nite" schemes conducted by motion
picture theaters, have been considered by the Texas courts
and almost without exception these plans have been held to
be lotteries, despite the fact that both patrons and non-
patrons of the theaters were allowed to participate. The
distrlbtion of "free" chances was held by the courts to be

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Hon. R. L. Lattimore, page 4   (c-50   1

a subterfuge, which would not have the effect of legalizing
an otherwise illegal scheme. City of Wink v. Griffith Amuse-
ment Co   129 T x. 40, 100 S.W 2d 69,   18;: ; Cole v. State,
112 S.W:$?d725 ?Tex.Crim. 193%); Rob2         v. U lted, v.
State, 127 S.W.&l 221 (TexCiv.App. I:-_,,
                                     919); State vn; Robb &
Rowley, United, 1.18 S.W.2d 917 (Tex.Civ.1
                                         RPp.i-9781.
          City of Wink v. Griffith, supra, was a "bank
night"case, and persons were allowed to register for the
drawing without buying a theater ticket. Judge Cureton,
speaking for the Court said in part:
               "The actual money returns on 'bank
          night I would suggest that if any free
          numbers were ever distributed. thev were
          negligible. Wed ather from the whzle
          testimons that ti!e so-called 'free number'
          feature was largely one~~thatexisted in
          the minds of those who operated the
          theater, and that It was never made a
          real active part of the 'bank night'
          plan. True, no doubt if anyone had
          applied for a free registration to the
          drawing, it would have been given, but
          human nature is such that the average
          person would seldom, if at all, suffer
          the natural embarrassment of asking for
          a free registration. Indeed, If this
          were not so, the income from 'bank
          nights' would not have been sustantially
          more than that which had obtained
          prior to the operation of the plan. In
          fact, the whole plan Is built up and
          made profitable because no normal
          person likes to 'bum' his neighbor
          for something, and by an appeal to
          the psycholog
          some take a
          aalns by a
          invented and formulated the plan may
          not have been 'learned in the law,' but
          their knowledge of mass-psychology was
          not wanting.
          Human nature is such that a person is not likely
to drive out to the Buckhorn Drive-In Theater, get In a line
of cars entering the theater, ask at the Box Office for a
free card or cards, and then drive away while the patrons
are buying tickets, obtaining their registration cards and
entering the theater. It Is true that under the plan, the
registration cards are free upon request, but unless requested
no registration card is given or offered to anyone unless
they purchase a ticket to the show.


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Hon. R. L. LattimOre, Page 5 (c-50   )

          Certainly the patron Is favored over the non-
patron since a registration card Is given to the patron
freely upon buying a theater ticket. However, the non-
patron must go to the box office and request a registration
card and suffer the embarrassment that naturally follows
when he says he is not buying a ticket to the show. See
Brice v. State, 252 S.W.2d 433 (Tex.Crim. 1951).
          Also, the patron Is favored over the non-patron
since the winner needs to be present within five minutes
after the drawing to collect the prize. This would, of
course, almost eliminate anyone except a patron from winning.
In State v. Robb & Rowley, supra, the Court said on motion
for rehearing:
          "All that was required of one desiring
          to participate in a drawing, was to
          have his name entered on the register.
          But if his name was drawn, he had to
          present himself within 3 minutes in the
          showhouse. This was a strong motive, and
          was intended as such, to make one who
          desired to participate, pay for admis-
          sion and be present on the night of a
          drawing. If the one whose name was
          drawn was not required to present him-
          self in the showhouse until the night
          succeeding the drawing in order to
          become available to receive the award, the
          motive to purchase a ticket of admission
          would be greatly weakened. We construe the
          opinion in the Cole case to hold, what we
          conceived to be a motive, to be indirect
          consideration, and further to hold that
          Indirect consideration is consideration,
          and that there was therefore present
          in the transaction the essential element
          of consideration to make of it a lottery."
          It is evident from the Texas cases that the lottery
statute cannot be circumvented by a mere subterfuge or
evasion of the lottery laws by offering a few "free chances'
or making it practically impossible for a "free chance' to
win. Featherstone v. Independent Service Station Association
10 S.W.2d 124 (Tex.Civ.App. 192%).
          It is our opinion that Lucky Car Night is a
lottery and, further, that a scheme of general distribution
of the registration cards would not make a difference.


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Hon. R. L. Lattimore, Page 6   (C-50    )

          Even looking past the embarrassing feature of
having non-patrons go up to the box office and ask for a
registration card, which would be eliminated with a general
distribution of the registration cards, the requirement of
having thewlnner appear within five minutes would have the
practical effect of limiting the winner to a patron of the
theater.
                    SUMMARY
               A plan which would have the practical
          effect of limiting the winners to patrons of
          the theater by requiring the winner to
          present his car within five minutes at the
          snack bar or box office is a lottery.
                           Yours very truly,

                           WAGGONER CARR
                           Attorney General of Texas



                               Irwin R. Salmanson
                               Assistant Attorney General

1RS:cjs
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Howard Fender
Samuel S. Pharr
Malcolm Quick
Ernest Fortenberry
APPROVED FOR THE ATTORNEY GENERAL
m:   Stanton Stone




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