Hon. R. Y. Lindsey, Jr.    Opinion No. V-1485
County Attorney
Dawson County              Re:   Legality of theatre
Lamesa, Texas                    prize schemes call-
                                 ed "Qnls Bank" or
                                 "Quiz Show" and "Mov-
Dear Sir:                        le Sweepstakes.?
          You reqnest an opinion of this office as
to whether either of the following quoted fact sit-
uations constitutes a violation of Articles 654 and
655, Vernon's Penal *de, prohibiting lotteries and
raffles.
 ?        "FACT SfTmTION NO. I.. A n&vi& give-
     away show ontitled either 'Quiz Dank' or
     'Quiz ghow"is operated on the folloilng
     basis:
          "At the time theatre tickets are pur-
     chased at the Drive-In Theatre located on
     the outskirts of the City, an attendant in
     front of the ticket booth passes out to
     each patron in the respective automobiles
     a card upon which is inscribed either 'Quiz
     Dank' or 'Quiz Show.' Also printed on the
     give-away cards are spaces for the answera
     to twelve questions.' On the 'Quiz Dank'
     cards, answers to questlons which are ;asked
     over the loudspeaker durlng~ intermission
     are made by punching a hole through the
     card under the heading of either  ‘Yes’ or
     'NO', which constitute8 the patrons an-
     swers to questions asked by the MC, which
     questions cover topics Including histori-
     cal events, geographical locations and
     subjects, or any other pertinent questions
     taken from encyclopedias or ather sources
     of information to test the patron's skill.
     In connection with the 'Quiz Show' cards
     handed out to patrons, spaces are provided
     on the cards for patrons to designate an
Hon. R. Y. Lindsey, Jr., Page 2, (V-1483)


     answer to each of the ten questions pro-
     jected on the screen by the process of
     punching a hole through the card and de-
     signating the patron's answer to be one
     of three possible answers also projected
            screen with the questions. The
    ,on the,,
     patron designates'which of the three an-
     swers he thinks to be correct by punch-
     ing a hole through the letter A, B, or C,
     ,underthe respective number on the card.
    ,In both of the above set out give-away
     shows, the patrons are given ten minutes
     after the questions have been announced
     over the loud-speaker or projected on
     the screen in which to complete their an-
     swers by making the appropriate punch
    :marks on the card and then depositing
     their cards with their names and address-
     es inscribed thereon in a common recepta-
     cle in or near the concession stand in-
     side the theatre. Normally, the prize
     money starts off with an amount in the
     bank designated at $25.00 up to $100.00,
     as the prize for answering the questions
     correctly, and if none of the patrons win
     on the articular night, then an addl-
     tional $ 25.00 is added to the prize money
     and carried over to the next week's pro-
     gram. In both of the Quiz Shows referred
     to patrons need not be present to win the
     prize money. Winners or the absence of a
     winner at each particular program are us-
     ually announced at the end of the last
     feature shown by the respective theatres
     for the evening. As stated above, one of
     the Quiz Shows restricts all of its ques-
     tions to matters pertaining to various
     subject matter that is found in encyclo-
     pedias and other periodicals. In the oth-
     er quiz show, a porti n of the questions
     projected on the scre1n are lifted or de-
     rived from scenes or circumstances per-
     taining to a movie shown at this parti-
     cular theatre several days prior to the
     date of the Quiz Show, the rest of the
     questions are taken from and pertain to
     historical events and other miscellaneous
     matters of a type normally given on radio
     quiz shows and other types of give-away
Hon. R. Y. Lindsey, Jr., Page 3, (v-1483)


     programs. Patrons must purchase a the-
    atre tlcke~t;at the respective ticket
    booths In order to be able to participate
     in ‘:QuizRank’ or ‘Quiz Show’ as above
    .outlined, etin.“thoughthey do not have to
     be .:presentin the theatre’to win or ob-
     tain the prize money give-away to the per-
    sonanswering all the questions correctly.
     It is my understanding that children under
     the age of 12 years are not permitted to
     participate in either the ‘Quiz Dank’ or
     ‘Quiz Show’ programs. . e *”
        ” “FACT,STTUATION’N0. II. A local
    drive-In thestre, ‘as sunadded induc&&nt”
    for building up patronage and attendance
    of its theatre, on one night out of every
    week presents a game called ‘Movie Sweep-
    stakes I. ‘Movie Sweepstakes’ Is a game
    in which films of famous horce races are
    shown as a special attraction in the the-
    atre on a particular night in the week.
    On the ‘Sweepstakes’ night, patrons in-
    side the theatre select three of the
    films at random to be shown, which means
    that three separate horse races from ac-
    tual scenes at a race-track are shown on
    the screen. These are then shown in the
    order selected and anyone who has pre-
    viously chosen the correct winners In all
    three races wins a prize.
          “To be eligible to win the prize, it
    is not necessary that one buy a ticket to
    the theatre, nor does one have to enter
    the theatre in order to collect his prize.
    Also, he need not be in the vicinity of
    the theatre at the time the races are shown.
    In the operation of ‘Movie Sweepstakes‘, a
    game card is handed to all adults who uare
    to pick one up at the theatre, whether he’
    intends to buy a ticket and see the regular
    show,or,not . The cards are not handed out
    at the ticket office, but to anyone who.de-
              ,. Those snot entering the theabe.
    ,3Ires ,one
    simply write their names and addresses on
    the bottoms of the cards which they then de-
    posit in a;nearby receptacle. Also,on these
    cards are their choices of which horses they
Hon. R. Y. Lindsey, Jr., Page 4, (V-1483)


     believe will be the winners in the races
     to be shown inside the theatre. Persons
     purchasing a ticket to see the regular
     movie on 'Movie Sweepstakes' night are not
     given game cards at the time they purchase
     their tickets, but they must obtain them
     apart from the ticket office. They may
     either pick up the cards or not after or
     before they purchase their tickets, or
     they may pick up cards without even pur-
     chasing tickets.
          "It Is understood that the reason
     for not giving out the forms at the time
     the patrons purchase a ticket is to elim-
     inate the possibility that the money paid
     for the ticket also pays In part for the
     game card. 'Movie Sweepstakes' operates
     by having patrons purchase tickets to see
     the regular movie and added shorts of
     which the Movie Sweepstakes is one, with-
     out regard to winning money. Then, if a
     patron desires to be eligible to play the
     game, he may pick up a game card without
     giving any consideration. He pays for
     movie entertainment only and if he does
     not buy a ticket, he still may be able to
     win a prize, although, of course, he will
     be excluded from watching the movie in-
     side the theatre. The basis upon which
     this program operates is, that although
     there Is a prize and a chance involved,
     it lacks the necessary element of con-
     sideration. . . .'
          The Texas courts have defined a lottery as
a scheme for the distribution of prizes by lot or
chance among persons who have paid, or who have sgreed
to pay, a valuable consideration for the opportunity
to win the awards. City of Wink v. Griffith Amusement
co., 129 Tex. 40, 100 S.W.2d 695 (1936); 54 C.J.S. 843,
Lotteries, Sec. 1; 28 Tex. Jur. 409, 410, Lotteries,
Sec. 2. Thus, every lottery contains three essential
elements as follows: (1) prize; (2) chance; and (3)
consideration.
          Fact Situation No. I nvolves the question
of whether the element of chsnci is to be found in the
scheme. The same problem was considered in Attorney
Hon. R. I'. Lindsey, Jr., Page 5,   (V-1483)



General Opinion V-544 (1948). We there held in ef-
fect that if the conduct of a contest and the an-
swers given to a set of questions are dependent pri-
marily upon skill and knowledge rather than upon
mere chance,~;.the
                 contest Is lawful. On the other
hand, if any controlling portion of a contest calls
for and is dependent upon pure guesses or chances,
it is a lottery and therefore unlawful. A determi-
nation of whether the scheme indicated by your Fact
Situation Rob I violates the lottery statutes de-
pends upon the facts and circumstances of each con-
test and may not therefore be determined abstractly.
          In Fact Situation Ro. II, however, the
problem concerns the presence or absence of the ele-
ment of consideration. If participation in the game
were limited to theater ticket holders, the element
of consideration would clearly be present, but such
is not the case here. Non-patrons as well as pa-
trons of the theater may compete for the awards.
Therefore, the question for our determination is
whether the distribution of "free" chances removes
the element of consideration from this plan.
           '@MovieSweepstakes," as described in your .
request,"ls,basically similar to the various motion
picture <theater"Rank Rite" contests which have been
considered by the courts of Texas in a number of dif-
ferent cases. Despite the fact that both patrons
and non-patrons of the theaters were allowed to par-
ticipate, these plans were held to be lotteries al-
most without exception. The distribution of "free"
chances was considered but a subterfuge which would
not have the effect of legalizing an otherwise il-
legal scheme. City of Wink v. Griffith Amusement
co., I.29Tex. 40,'lGO .W'.2d695 (1936); Cole v.
State, 133 Tex. Grim.   48, 112 S.W.2d 725(lgljs);
Robb& Rowley, United v. State, 127 S.W.28 221 (Tex.
Civ. App. 19391. State v. Robb & Rowley, United,
1.18 S.W.2d 917 [Tex. Clv. App. 1938). Moreover, a
number of other sales promotion enterprise8 In which
the participating merchants distributed chances for
prizes among their customers were declared lotteries
even though a number of the chances were distributed
to non-customers. Featherstone v. Independent Ser-
vice Station Association, 10 S.W.2d 124 (Tex. Clu
APP. 1928)    See also Att'y Gen. Ops.,O-2843 (1940);
V-1420 (1952).
Hon. R. Y. Lindsey, Jr., Page 6, (V-1483)


          In only one case, Griffith Amusement Co.
v. MOP an, 98 S.W.28 844, (Tex. Civ. App. 1936) was
den         upheld. This decision. however. was
neither cited-nor followed in the more recent cases,
and it cannot be considered controlling here. Nei-
ther have the principles enunciated in the “Bank
Nits” cases been overturned by the recent decision
in Brice v. State, 242 S.W.2d-433 (Tex. Crim. 1951),
which arose out of circumstances entirelv different
from those before us.
          It is difficult of course to ascertain
from descriptive literature alone the exact nature
of any given scheme. The written description might
differ materially from the manner in which It is
actually carried out. However, in ‘Movie Sweep-
stakes” as described in your request,~it appears
that a substantial portion of the chances for prizes
are on the basis of the purchase of theater tickets.
This constitutes a valuable consideration moving
from the contestants to the donor of the prizes, and,
under the authorities cited above, tbatelement Is not
removed by the distribution of a number of “free*
chances on request. It is our opinion, therefore,
that “Movie Sweepstakea” constitutes a lottery pro-
hibited by Article 654, Vernon’s Penal Code.
                     SUMMARY
          Whether the theatre quiz contest plan
     known as “Quiz Bank” or “Quiz Show” is a
     lottery and violates Article 654, Vernon’s
     Penal Code, is a question to be determined
     upon the facts and circumstances of each
     contest and cannot be determined abstractly
     as a matter of law. If the conduct of the
     c.ontestand the answers to a given set of
     questions are dependent primarily upon
     skill and knowledge rather than upon mere
     chance, the contest is lawful. On the
     other hand if any controlling portion of
     the contest calls for and is dependent up-
     on pure guess or chance, it Is a lottery
     and is therefore unlawful.
          The contest “Movie Sweepstakes,” in
     which prizes are distributed to motion pic-
     ture theatre ticket holders, is a lottery
Hon. R. Y. Lindsey, Jr., Page 7,   (v-1483)



     prohibited~by Article 654, VP,C.., even
     though some of the chances for awards are
     distributed to non-patrons of the theatre.
                          Yours very truly,
                            PRICE DANIEL
                          ;,ttorneyGeneral



                          BY
                            Cal~vinB. Gsrwood, Jr.
                                  Assistant

APPROVED;

E, Jacobson
Reviewing Assistant

Charles D. Mathews
First Assistant
