                               March 17.     1987                                                .




Eonorable   Bob Bullock                             Opinion   No.     JM-646
Comptroller    of Public     Accounts
L.B.J.  Building                                    Re:  Whether certain         “give   away”
Austin.   Texas   78774                             promotional   games        violate     the
                                                    Bingo Enabling Act

Dear Mr. Bullock:

      You have asked about the legality            of three       games conducted    by
newspapers    in the pages of their publications          and one to be broadcast
as a television        game show for viewer       participation.        Each of them
(variously    called    “Wingo ,” “Bingo ,I’ or “Banko”)      uses a format similar
to that of a bingo          game.  The games are designed           to promote news-
paper circulation        or to Increase    patron-traffic        on behalf   of local
businesses.       Free    game materials     are xade     available     to potential
players    and it is not necessary      to purchase anything        to win.

      The Texas Constitution     requires     the legislature       to enact             laws
prohibiting    “lotteries” and “gift   enterprises.”        Tex. Const. art.             III,
047.     A 1980 amendment to that provision          allows    the legislature              to
authorize   bingo games under certain     circumstances:

                 (b)   The Legislature         by law may authorize            and
            regulate       bingo     games     conducted      by     a church,
            w=gow=       f    religious       society,      volunteer        fire
            department,         nonprofit        veterans        organization,
            fraternal       organization,        or    nonprofit      organiza-
            tion     supporting       medical     research       or   treatment
            programs.      . . . (Emphasis added).

        Generally,   the Bingo Enabling Act, article          179d. V.T.C.S..     seeks
to implement        a constitutionally-contemplated         regulatory     scheme for
legalized     bingo   games.     A bingo     game is defined    by section     2(2)  of
article    179d to mean

            a specific game of chance,     commonly known as bingo
            or lotto,   in which    prizes    are awarded    on the
            basis of designated   numbers or symbols on a card
            conforming   to   numbers   or   symbols  selected   at
            random.




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Honorable   Bob Bullock      - Page   2     (JM-646)




The definition     of a bingo game is given more detail   by section   39 of
the Bingo Enabling      Act -   the part   of the statute   that makes the
conduct,    promotion,   or administration   of an unlawful   bingo  game a
crime.   It reads:

                (t’,ze;    the purposes   of this      section,     ‘bingo’
            or              means   8 specific       game of       chance,
            commonly known as bingo or lotto,           in which prizes
            are awarded on the basis       of designated        numbers or
            symbols on a card conforming         to numbers or symbols
            selected     at random, whether       or not a person        who
            participates      as a player     furnishes      something     of
            value for the opportunity       to participate.

                (b) Any person    conducting,  promoting,     or ad-
            ministering    a game commits a felony     of the third
            degree unless    the person is conducting,    promoting,
            or administering    a game:

                (1) in accordance          with   a valid        license     issued
            under this Act;

                 (2) within  the confines         of a home for            purposes
            of   amusement or recreation          when:

                 (A)    no player     or other person           furnishes      any-
            thing      of more than nominal value               for the      oppor-
            tunity      to participate;

               (B) participation           in   the    game does      not    exceed
            15 players;   and

               (C) the prizes         awarded         or   to   be   awarded     are
            nominal; or

                 (3) on behalf  of an organization       of persons     60
            years of age or over,      a senior   citizens’    associa-
            tion,    or the patients    in a hospital       or nursing
            home or residents     of a retirement      home solely    for
            the purpose     of amusement and recreation          of its
            members. residents.     or patients,    when:

                (A) no player      or other           person     furnishes     any-
            thing   of more than nominal               value    for the      oppor-
            tunity   to participate;    and

               (B) the      prizes    awarded         or   to   be   awarded     are
            nominal.




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Honorable      Bob Bullock       - Page 3           (JM-646)




                    (c) This section          applies   to all political             sub-
               divisions    regardless         of local   option status.

                  (d) A game exempted by Subdivision                         (2) or (3)
               of Subsection (b) of this section  does                      not need to
               be licensed.  (Emphasis added).

V.T.C.S.     art.   179d.     §39.   Your office    has determined  that                the   games in
question     constitute       “bingo” within     the meaning of section                 39.

       In light       of the concluding           words of subsection           (a) of section         39.
it is unnecessary            to review cases decided               under other laws that deal
with    the use of advertising                  or merchandising            promotions        having      a
“bingo , ” ”gift        enterprise.”         or “lottery”       format.      See Brice v. State,
242 S.W.2d 433 (Tex. Grim. App. 1951);                     see also State”.            Socony Mobile
Oil Company. 386 S.W.2d 169 (Tex. Civ. App. - San Antonio                                  1964, writ
ref’d    n.r.e.);        Hoffman v. State,            219 S.W.2d 539 (Tex.               Civ.     App. -
Dallas    1949, no writ);            Attorney       General      Opinion     JM-513 (1986).            The
payment of consideration,                directly      or indirectly         by the participant,
is an essential           element of the lottery             offense       under the Penal Code.
See Penal         Code %47.01(6);            Brice    v.    State,      242 S.W.2d        at 434-35;
Attorney     General Opinion JM-513 (1986).                    The effect       of the last clause
of subsection         (a) of section          39 is to remove the element of considera-
tion from the specific               criminal      offense      described      in subsections          (a)
of section        39, i.e.,       the conduct,         promotion,        or administration           of a
“bingo”    game as defined            in subsection        (a).      Since you have determined
that the games about which you inquire                           actually      constitute        “bingo”
within the meaning of section                  39. they must be conducted              in compliance
with subsection           (b) regardless          of whether a person who participates
as a player          furnishes        something       of value        for    the opportunity            to
participate.          Subsection       (b) requires       that a valid        license     be obtained
if the game in question                fails     to fall    within      two limited       exceptions.
Whether      the conduct,          promotion,         or administration            of    these      games
without      a license         actually       constitutes       a third       degree     felony      also
depends upon proof of all of the other elements of a criminal                                  offense.
Because some of these games are conducted                           over television,          you also
ask whether federal            law preempts the Bingo Enabling Act.

       Section      1304 of     Title    18 of      the United     States     Code provides:

                   Whoever    broadcasts         by    means    of     any    radio
               station  for which a license            is required     by any law
               of the United       States,      or whoever,       operating     any
               such station,      knowingly        permits    the broadcasting
               of. any advertisement          of or information        concerning
               any lottery,      gift    enterprise,       or similar      scheme,
               offering   prizes     dependent      in whole or in part upon
               lot or chance,      or any list        of the prizes       drawn or
               awarded    by means         of     a*7    such    lottery,      gift




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Honorable     Bob Bullock      - Page 4       (JIG646)




              enterprise,    or scheme, whether             said list  contains
              any part or all of such prizes,               shall be fined not
              more than $1,000 or imprisoned                 not more than one
              year.   or both.

                  Each     day’s    broadcasting         shall     constitute        a
              separate     offense.

“Radio” broadcasting    in this context             includes   television broadcasting.
See 47 U.S.C.   §153(b)   (1982);  Allen           B. Dumont Laboratories    v. Carroll,
184 F.2d 153 (3rd Cir.      1950). cert.           denied,   340 U.S. 929 (1951).

       The San Antonio       Court of Civil     Appeals    In State v. Socony Mobil
Oil   Company, 386 S.W.2d          169 (Tex..    Civ.   App. - San Antonio         1964,
writ ref’d     n.r.e.),     citing    18 U.S.C.     51304,   considered     whether    an
lniunction    could be granted qrohibitlnq           the broadcast    of a “TV-Bingo”
 g-.       The court    concluded    that even if the bingo-format          promotional
 scheme at issue        there    was a “lottery”       under Texas     law,   the state
 had no jurisdiction          to enjoin   the broadcast       because     Congress    had
 “preempted    the field’ of regulating       the broadcasting      of [it]    over TV.”
 386 S.W.2d at 174.

      The Socony Mobil holding         would be in point if a promotional               game
with   a bingo    format    were     a “lottery,      gift    enterprise,       or similar
scheme” within      the meaning of the federal             statute    whether     or not a
person who participates         as a player      furnishes     something     of value    for
the ouuortunitv      to uarticipate.       However, the federal         statute    does not
reach- ‘“give    away” - programs.       Federal     Communications        Commission     v.
American    Broadcasting      Company, 347 U.S.         284 (1954);       Caples     Co. v.
United States,     243 F.2d 232 (D.C. Cir. 1957).

        The precise        act prohibited        by section       1304 of Title         18 is the
broadcasting         of prohibited         information       or knowingly        permitting      its
broadcast        (by one operating            a station).         It was held         in Federal
Communications          Commission      v.    American     Broadcasting        Company, supra.
that “give       away programs” requiring             no movement of consideration             from
the participant            were    not   lotteries,       gift    enterprises,        or similar
schemes within           the meaning       of section       1304.     In part,       the Supreme
Court      based      its     conclusion       on    a   long      standing       administrative
interpretation          (by the Post Office          .Department)      of the same language
found     in section        1302 of Title          18. which orevents           the mailina        of
lottery      tickets      and related        matters.      Cf.    ‘Post    Publishing       Co: v.
Murray. 230 F. 773 (1st Cit.                1916).

       Thus, federal     law does not punish the use of the mails or broad-
casting    facilities     to conduct,   promote or administer     a bingo game if
the person who participates         as a player    does not furnish   something    of
value    for     the  opportunity     to participate.      But the Texas        Bingo
Enabling     Act does.     Unless Congress   has preempted the entire      field    of




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Honorable   Bob Bullock      f Page 5       (JM-646)




criminal   laws relating      to lotteries      or “give    away” promotions,      the
Texas law is enforceable.           We do not believe        it was the intent      of
Congress   in enacting     sections     1302 and 1304 to occupy         the field   of
criminal  law with respect       to lotteries     or “give    away” schemes.     Those
statutes,     in our opinion,      do not preempt      the operation      of a state
criminal    law that    reaches     conduct    nowhere    addressed    by a federal
statute.    Cf.
            -    United  States    v.  Fesler,   781  F.2d  384   (5th Cir. 1986).

      In Head v. New Mexico Board of Examiners in Optometry.                 374 U.SI
424 (1963),     the United States       Supreme Court rejected      a claim that a
state restriction      on radio advertising      of optometry   prices    was invalid
because,   supposedly,     the enactment     of the Federal     Communications     Act
preempted the field.        Mr. Justice    Brennan. concurring,     said:

                The New Mexico law is one designed                    principally
            to protect        the state’s       consumers      against     a local
            evil by local         application      to forbid      certain      forms
            of advertising          in all mass media.            Such legisla-
            tion,    whether concerned         with the health and safety
            of    consumers,       or with       their    protection       against
            fraud and deception,            embodies a traditional             state
            interest      of    the sort       which     our decisions          have
            consistently        respected.        (Citation     omitted.)         Nor
            is    such     legislation        required      to    yield      simply
            because      it     may in       some degree          restrict        the
            activities       of one who holds a federal             license.

374 U.S. at 445.    We believe    thf           Texas ban on unlicensed   bingo games
presents.an analogous  situation.                -Cf. Attorney General Opinion MW-488
(1982) .

       The policy   and scope of section        1304 was considered       by the Second
Circuit    in 1969, a few years after         the Bead case was decided.           In New
York State Broadcasters       Assn. v. Unitedxtes.            414 F.2d 990 (2d CT
1969),    the court    held   that    section     1304 applies     to the television
broadcast      of  prohibited     Information       about   legal,     state-sponsored
lotteries     as well as illegal       ones.     In determining      the scope of the
congressional     enactment,   the court stated:




       1.  While sections      1304 and 1302 might preempt a state         law which
attempted    to penalize     the broadcast        of the same lottery   information
condemned by the federal            law.   or which attempted      to penalize    the
mailing   of such lottery       information,      they do not preempt a state     law
that would prevent       the production        of the material  which,   if it were
produced,    might then be broadcast         or mailed.   Cf. Brooklyn Daily Eagle
v. Voorhies.     181 F. 579 (E.D.N.Y.        Cir. 1910). -



                                           p.   2935
Honorable   Bob Bullock       - Page     6    (JM-646)




                 In prohibiting            the     broadcasting         of    lottery
            information         Congress      was not acting          in a vacuum;
            for      more than one hundred                 years    a prohibition
            ou conducting           a lottery          by     use    of    the      mail
            facilities         had existed.            See 18 U.S.C.          §§1302,
            1303.       Similarly,      prohibitions          on importation         and
            interstate          shipment       of     lottery      material         also
            existed        when section         1304 was enacted.              &
                                                                               -       18
            U.S.C.        51301.    It is true         that     Congress     has not
            attempted         to prohibit        the conduct        of lotteries;
            with      narrowly       prescribed        exceptions       the      states
            have done that.             But Congress           has exercised         its
            mwer
            r~    ~~
                        -      the    existence         of    which     oetitioners
            concede        --   to inhibit        lotteries       and to aid the
            states        by denying        lottery        promoters      access       to
            facilities         over which       the federal        government        has
            control.

            It is In this       light    that the Commission’s     action
            must be considered         -- not as an exercise       of the
            power    to   regulate       broadcasting    in    the public
            interest    necessitated      by the nature and technology
            of broadcasting,        but as enforcement       of the clear
            congressional       policy     embodied   in   section   1304.
            (Emphasis added).

414 U.S.    at 995.

       The policy       of the federal   statute    is to prohibit     (in aid of the
states)      the broadcast      of certain    types    of information;      it    is not
one promoting        the broadcast   of  whatever     has   not  been     specifically
prohibited      by federal    law.’   The operation     of state law to prevent        the
broadcast      of “give     away” programs     is not at odds with any federal
policy     favoring     such broadcasts.     As the United States        Supreme Court
noted in Exxon Corp. v. Governor            of Maryland,     437 U.S. 117 (1978).        a
“conflict”        found only in the possibility       that a state     statute      would




        2.   The scope of section      1304 was further       restricted      by the Third
Circuit     in New Jersey     State Lottery     Commission v. United States,            491
F.2d 219 (3rd Cir.         1974).    another   case    involving      a state-sponsored
lottery.       Certiorari   was granted      by the Supreme Court             in order   to
resolve    the conflict     created    but the cause was remanded to determine
aootness     in the light    of section    1307 of Title      18 (making section       1304
inapplicable
     __            to information      about   state-conducted         lotteries),     sub-
sequently      enacted.   United States v. New Jersey            State Lottery     Commis-
sion,    420 U.S. 371 (1975).



                                              p.   2936                                       u
Honorable    Bob Bullock     - Page 7       (JM-646)




prevent     au act     that     a federal      statute    would    otherwise     "permit"
(but not urotect       as a oollcv       matter)     is not sufficient        to warrant
preemptiod.      437 U.S. at'131.O       Cf. King v. Gemini Food Services,           Inc.,
438 F. Supp. 964 (E.D. Va. 1976),aff'd                per curiam,     562 F.2d 297 (4th
Cir.    1977)  (adopting      district    court's    reasoning),     cert.   denied,   434
U.S. 1065 (1978);       Vincent v. General Dynamics Corp.,             427 F. Supp. 786
(N.D.    Tex.   1977).      In our opinion        the Bingo      Enabling    Act is not
preempted by federal        law.       -

                                       SUMMARY

                    The conduct,      promotion,     or administration        of an
            unlicensed       game in which prizes          are awarded on the
            basis      of designated       numbers or symbols           on a card
            conforming       to numbers or symbols selected               at random
            is    Illegal     unless    expressly     excepted      by the Texas
            Bingo      Enabling    Act,    Including,      for   example,     games
            conducted,         promoted,      or    administered         by   local
            newspapers         and   television       stations       even    though
            persons who participate           as players     furnish    nothing   of
            value for the opportunity            to participate.




                                                     JIM      MATTOX
                                                     Attorney  General      of   Texas

JACK HIGRTOWER
First   Assistant    Attorney    General

MARY KELLER
Executive    Assistant     Attorney    General

RICK GILPIN
Chairman, Opinion        Committee

Prepared    by Bruce Youngblood
Assistant    Attoruey General




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