                                                      A\U‘+TXN   11,    .I&x&g
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            A-,Ysm          ~~&.z.?.lc”*&                March    18, 1964
  I/   ,
 /
.~i                    Mr. R. L. Lattimore                             Opinion No. C-228
                       Criminal District Attorney
                       Ridalgo County Courthouse                       Rex 'Whether the give-away
                       Edinburg, Texas                                 program of certain merchants
                                                                       in Hidalgo County, Texas, under
                                                                       the facts stated, constitute a
                       Dear Mr.          Lattimore:                    lottery.

                       BY letter dated March 6, 1964, youhave  requested an opinion
                       from this office as to whether a give-away program now being
                       conducted by certain merchants in your county, using regis-
                       tration blanks which require certain information in addition
                       to name and address to be filled in so that the entrants may
                       be eligible for the drawing, constitutes a lottery.

                       The additional information required in the registration blanks
                       relates to the age and make of certain of their appliances and
                       what type of appliance they plan to purchase in the future,
                       and would presumably be used in future sales solicitations.

                       The ruling decision on this subject in this State is Brice v.
                       State, 242 S.W.211 433 (Tex.Crim.App. 1951).  In this case the
                       give-away scheme required that anyone could register merely
                       by going to the meszanine,floor and writing his name, address,
                       and telephone number on a card, that one could not win a prize
                       without so registering, and that no registrant was required to
                       make a purchase or to be at the store at the time of the draw-
                       ing. The Court held that this scheme did not constitute a
                       lottery since the element of consideration was lacking.

                       Although the fact situation you have outlined to us is some-
                       what different, we nevertheless feel it to be governed by the
                       holding in Brice.  It is true, that, in addition to name, ad-
                       dress! and telephone number, the registrant must furnish fur-
                       ther information, presumably so that salesmen may contact each
                       of the registrants at some future time to attempt to sell them
                       some merchandise: but this further element fails to constitute
                       a consideration.

                       In Brice, the Court stated:

                                                 "The fact that the holder of the drawing expects
                                            thereby to receive, or in fact does receive, some ben-
                                            efit in the way of patronage or otherwise, as a result

                                                                 -1106-
Mr:R..L..Lattimore,   Page,2    (Opinion-No. C-228 )

          of the drawing, does not SUpply    the element of
          consideration paidby the chance holder for the
          chance. _ _ .
                 *'Distributing prizes by lot or chance to holders
          of tickets given away is not carrying on a lottery,
          although it may be done with the view of drawing a
           large~crowd together in the hope of profit from such
          of them as may choose to buy medicines .from the dis-
          tributor, or tickets to performances given by,him, or
          to pay for seats in the tent where the prizes.are se-
           lected, Where no payment for any purpose is necessary
         was a condition of receiving a prize. . . .
                 "Under the authorities mentioned, we must con-
          clude.that in the,absence of any character of favori-
          tism shown to customers, the lottery.statute, Art. 654,~
         'P.C., is not violated under a plan whereby a merchant
          awards a prdze or prizes by chance to.a registrant with-
          out requiring any registrant.to be a customer or to pur-
          chase merchandise or to do other than to register without
         .charge.at the store, though the donor may receive a ben-
           efit from the drawing in the way of advertising. . . .
                 "The 'consideration' in this case which moves from
           the parties participating in the drawing for the prize,
          or proses, to appellant is entirely fanciful. -It is not
           sufficiently substantial to be classed asa reality. If
          the,people who registered are to be:construed to have
          paid a-consideration by merely stepping into.the ~house
          -and signing their names, we.would, find~ourselves .in con-:
          .flict with.all~the decisions-of ourcivil courts on quesj
           tions of contract involving a~consideration. .It would !
          ~hardly be necessary,to discuss the.question if,involved i
           .in a civil-action. .Just why we~should use.a different
           rule to measure a ~consideration is not understandably."



                               SUMMARY

          Since the merchant does not require.any registrant
          to'~~beaIcustomer or to purchase merchandise .or to
          do other than to register v?ithout,c.hargeat the
          store; and, although the holder of the drawing ex-
          pects to,receive, and may in fact, receive some .,
          benefit by way of patronage.or otherwise, the ele-
          ment of;consideration is lacking and the give-away
          program outlined is not a lottery.




                                -1107-
Mr. R. L. Lattimore, Page 3 (Opinion No. C-228 )


                              Yours very truly,


                              WAGGONER    CARR
                              Attorney    General of Texas



                              BY
                                    CHARLES B.
                                    Assistant Attorney General


APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chaiknan
Al10 B. Crow
Wayne Rodgers
W. ~0. Shultz
Gordon Cass

APPROVED FOR THE ATTORNEY GENERAL
BY: Howard W. May6




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