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Honorable Henry Wade          Opinion No. ~-67
District Attorney
Dallas, Texas                 Re: Whether, under the stated facts,
                                  a promotion program known as
                                  "Texas Treasure Hunt" consti-
Dear Sir:                         tutes a lottery.
     Your opinion request on the above captioned sub;jectreads,
in part, as follows:
           "A local soft drink bottling company has recently
      begun a promotion program which, according to posted
      advertising,operates substantiallyas follows:
            Under the cork liner of the bottle crowns are
            pictures of a 'famousTexas landmark or a
            Texas Treasure', ranging from motorbikes,TV
            sets3 cameras and record albums to cartons
            and bottles of soft drinks, Anyone finding
            a 'Treasure'under the cork may surrender
            it to the olant and receive whatever Is
            pictured, -Free crowns:are available from
            the route salesman, tHe retail dealer or the
            local plant. The advertising further StiPu-
            lates that the 'Offer can be withdra.wnwithout
            notice and is void where prohibitedby law.'
           A copy of some of the advertisingmaterial referFed
      to above is enclosed herewith for your consideration.
                                  enclosed   with your      request   we
                                               thine   to    buv!

                                        ionprogram we find the
                                       peel the cork from under
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Honorable Henry Wade,.Page 2, (M-67)


dealer." Also the following:,"NOTICE Mr. Dealer! Crowns that
say 'one free.carton' will yourplease redeem -- we will redeem
these crowns
be redeemed at
 11 prizes not
     It now.se&ms settled in this state that only three elements
are essentlaltto'  constitutea lottery wlthin'thepurview of
Article 654,   Vernon's Penal Code.of Texas, viz;
           A prize or prizes.
      i
     II    An award or dlstrlbutlonof.a prize or prizes by cha,nce,
           and,
     (3) Payment, either directly or indirectly,by participants
            of a considerationfor the right or privilege of
           participating.
In most schemes or programs of the type here presented, the first
two elements of a lottery next hereinabovelisted are normally
present and the paramount question usually presented Is the
determinationof the third element,~i.e.,whether there is pa.y-
ment by the participantsof consideration,either directly or
Indirectly,for the right or privilege of participating. In
view of the language of the o inion of Brice v. State, 242 S.W.
26, 433 (Tex, Crlm. App. 1951P , and Attorney General's opinions
WW-934, w-652    and M-6, It seems clear that any such pr0gra.m
providing that anyone m&y participatewithout the necessity of
a.purchase, and given reasonable opportunityto register or
otherwise become ellgib'leat each of the pa,rticlpating  stores,
does not constitutea lottery as.that term is d,eflnedin sa,id
Article 654,   Vernon's Penal Code of Texas.
     Since these caps are available without~charge, we believe
that the reasoning ln,,Bricev. State, supra, apolies and that
the program known as 'TexasTreasure Hunt" Is not a lottery.
                               SUMMARY
          The promotion program known as "Texas Treasure
     Hunt". conducted Inaccordance wlth,the facts stated,
     does not constitutea lottery within the purview of
     Article 654, VetinonrsPenal Cod




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Honorable Henry Wade, Page 3, (M-67)


Prepa~redby Robert L. Lattimore a.nd
Monroe N. Clayton, Assistant Attorneys
General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Sam Kelley
Robert Owen
John Banks
Jack Sparks
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
