Gerald C. Mann
A-n-rORNEY GKNERAL




     Hon. Joe P. Batchltt      Opinion No. O-j.500
     District Attorney         Re: Whether the described prize
     Brownsville, Texas        plan c,onstltutes a violation of the
                               lottery statutes of Texas

     Dear Sir:

               Your letter of April 30, 19&l., requests the opinion
     of this department upon the question of whether the described
     radio program constitutes a lottery in contravention of the
     statutes of Texas, The plan is described in your letter as
     follows:

               "I submit herein for your ruling the proposition pre-
          sented,to me by KRGV Radio Station located at Weslaco,
          which concerns the,prqgrsm qf the KreeMee Ice Cream Co.,
          of Harllngen.

               "The program is patterned after the Pot O'Gold prog-
          ram. KRGV is to select each day at random from the citi-
          zens of the Valley the name of a certain person and at
          the time the selection is made and announcement is made
          a messenger is sent to the home of the citizen with a cou-
          pon entitling him to a quart of KreeMee Ice Cream. If
          the citizen has in his or her posses,sion,ten~labels or
          reasonable facsimiles of the Ice cream cartons labels,
          she will receive In addition to the coupon entitling her
          to a quart of Ice cream, $5.00 cash. If he or she has
          less than ten labels or reasonable facsimiles she will
          receive a coupon entitling her to a quart of ice cream
          for each label or reasonable facsimile she has on hand.
          In the event that this citizen is not at home and no one
          is at home, she will receive a quart of Ice cresm but
          will not be eligible to receive any part of the $5.00
          which money will be carried over from day to day.increas-
          lng as in the Pot O'Gold program."
               Section 47 of Article 3 of the Constitution of Texas
     reads as follows:
               "The Legislature shall pass laws prohibiting the es-
          tablishment 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
Hon. Joe P. Hatchltt, page 2   (O-3500)



      principle, established or existing in other States."

           Pursuant thereto the Legislature enacted Article 6.54
of the Penal Code of Texas which reads as follows:

           "If any person shall establish a lottery or dispose
     of any-estate, real or personal, by lottery, he shall be
     filed 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 ticket in any lottery, he shall be fined
     not less than ten nor more then fifty dollars.*

           In the concurring opinion of Judge Hawkins of the
 Court of-Criminal Appeals of Texas in Cole v. State, 112 S.W.
 (2d) 725, there appears the following fine analysis of what
 constitutes a lottery under the laws of Texas:

             "There Is not now, nor ever has been an attempt in
      this state to define by statute what constitutesa lottery.
      The term is defined by the statutes of only a few of the
      states. Corpur Juris, vol. 38, p* 288, note 10, lists
      only four, but says 'that such definitions seldom vary in
      substance from those-established by the courts.' Having
      no definition in our statute, we must resort to the mean-
      ing given the term by popular usage as determined by the
      various courts. When that is done, it is clear that
      three things must concur to establish a thing as a lottery:
      (a) A prize or prizes; (2) the award or distribution of
      the prize or prizes by chance; (c) the payment either
      directly or indirectly by the participants of a consid-
      eration for the ri      or privilege of participating.
      Texas Jur. vol. 2         409, j2, deduces from our own
      cases the &ile stated, and it appears that in every case
      from our own court where a scheme has denounced as a
      lottery that the three elements mentioned are shown by
      the facts to have been present.    See Randle v. State,
                580. Grant v. State, 54 Tex.Cr.R. 403 112 S.W.
      %6:ex21 L i R A            876 130 Am.St.Rep. 897, 16
      Ann.&as. 8$+; k;~d~~~~~t    vs: State, 41 Tex.Cr.R. 358,
      f$S.W.    850; Holoman v. State, 2 Tex.App. 610, 28 Am.Rep.
             and other Texas cases cited in Texas Jur., supra.
      The'same rule demanding the presence of the three ele-
      ments named will be found stated In 17 Ruling Case Law,
      p. 1222, and 38 Corpus Juris, p* 286, with innumerable
      supporting cases cited under the text in each of said
      volumes."

           In Boatwright v. State, 118 Tex.Crlm.Rep.   381, 38
 S.W.(2d) 87, it was said:
 Hon. Joe P. Hatchitt, page 3   (o-3500)



            "Any scheme for the distribution of prize8 by
       chance, under our statute, is a lottery. Queen v.
       State; 93 Tex.Cr.A. 173   246 S.W. 384; Stanger v.
       State, 107 Tex.Cr.R. 574, 298 S.W. 906.   The phrase
       'game of chance' Is defined In 27 Corpus Jurls at
       page 968, asfollows:   'It Is a game determined en-
       tirely or In part by lot or mere luck, and In which
       judgment, practice, skill or adroitness have honestly
       no office at all, or are thwarted by chance; a game
       In which hazard entirely predominates.'"

            Under the facts before us, a prize is given. The
lucky citizen receives a quart of ice cream and may receive
$5.00 in cash or 8.n additional quart of ice cre8m for each label
or reasonable facsimile thereof.

            Likewise, the award or distribution of the prize or
prizes is by chance. The participant 1s selected "at random
from the citizens of the Valley." His judgment, practice, ex-
perience, or skill enter in not at all.

            And, in our opinion, there exists, also, the pay-
ment either directly or Indirectly by the participant of a con-
sideration wherefore the chances of receiving an additional
prize are enhanced. This inheres in the fact that the partici-
pants in the plan, that is, the listening public, are induced
to purchase the ice cream being advertised in order to be eli-
gible for the $5.00 cash prize by virtue of the possession of
ten labels, or,reasonable facsimiles, from the ice cream car-
tons, or, by having less than ten labels, to be eligible to
receive additional quarts of ice cream. The opportunity of
receiving the prizes offered is not the same for everybody but
is enhanced in respect to those who have purchased the product
being advertised. We do not believe this element of consldera-
tion obviated by the fact that the citizen may have in his pos-
session reasonable facsimiles of the labels, instead of the
actual labels. This would pay homage to a pO88ibility which is
In Its nature remote and unlikely.

             In our opinion, for a scheme to be entirely lacking
in the element of a payment either directly or indirectly by the
participants of a consideration for the right or privilege of
participating fully in the prize or prizes given, such prizes
must be absolutely free. This is not true in the facts before
U5.

            If the quart of ice cream only were given, or addl-
tional prizes irrespective of and unconnected with the purchase
of the product advertised, the plan would not, it would appear,
come within the condemnation of the law. But this question is
not before us.
Hon. Joe P. Hatchitt, page 4    (O-3500)



          You are therefore respectfully advised that it is
the opinion of this department that the radio program de-
scribed in your letter does constitute a lottery.under the
Constitution and statutes of the State of Texas.

                               Yours very truly

                               ATTORNEY GENERAL OF TEXAS

                               By /s/ Zollle C. Steakley
                               Zollie C. Steakley, Assistant

APPROVED: MAY 20, 194-1
 /s/ Grover Sellers
FIRST ASSISTANT ATTORNEY GENERAL

,&PROVED: OPINION COMMITTEE
BY:       Bws, CHAIRMAN

iCS:db:wb
