March 17. 1987

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Eonorable BobBullock Comptroller of Public Accounts L.B.J. Building Austin. Texas 78774 Opinion No. JM-646 Re: Whether certain “give away” promotional games violate the Bingo Enabling Act DearMr. Bullock: You have asked about the legality of three games conducted by newspapers in the pages of their publications andone to be broadcast as a television game show for viewer participation. Each of them (variously called “Wingo,” “Bingo,I’ or “Banko ”) uses aformat similar to that of a bingo game. The games are designed to promote newspaper circulation or to **Increase** patron-traffic on behalf of local businesses. Free game materials arexade available to potential players andit is not necessary to purchase anything towin. 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 gamesunder certain circumstances:

(b) The Legislature by law mayauthorize and regulate bingo games conducted by a church, w=gow= f religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization 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. Abingo game is defined by section 2(2) of article 179dtomean

aspecific gameof chance, commonly knownasbingo 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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The definition of abingo gameis given more detail by section 39of 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:

or (t’,ze; the purposes of this section, ‘bingo ’ means 8 specific game of chance, commonly known asbingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols onacard 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 administering a gamecommits a felony of the third degree unless the person is conducting, promoting, or administering agame: (1) in accordance with avalid license issued under this Act; (2) within the confines of ahomefor purposes of amusement or recreation when: **(A)** no player or other person furnishes anything of more than nominal value for the opportunity to participate; (B) participation in the game does not exceed 15players; and (C) the prizes awarded or to be awarded are nominal; or (3) onbehalf of an organization of persons 60 years of age or over, asenior citizens’ association, or the patients in a hospital or nursing homeor residents of aretirement homesolely for the purpose of amusement and recreation of its members. residents. or patients, **when:** (A) no player or other person furnishes anything **of** more than nominal **value** for the opportunity to participate; and (B) the prizes awarded or to be awarded are nominal.

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(c) This section applies to all political subdivisions regardless of local option status. (d) Agameexempted 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 gamesin question constitute “bingo ” within themeaning of section 39.
Inlight 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, 242S.W.2d 433 (Tex. Grim. App. 1951); see also State”

. Socony Mobile Oil Company. 386 S.W.2d 169 (Tex. Civ. App. - SanAntonio 1964, writ ref ’d n.r.e.); Hoffman v. State, 219 S.W.2d 539 (Tex. Civ. App. - Dallas 1949, nowrit); 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). Theeffect of the last clause of subsection (a) of section 39is to remove the element of consideration from the specific criminal offense described in subsections (a) of section 39, i.e., the conduct, promotion, or administration of a

“bingo ” gameasdefined in subsection (a). Since you have determined that the games about which you inquire actually constitute “bingo ” within the meaning of section 39. they mustbeconducted in compliance with subsection (b) regardless of whether a person whoparticipates as a player furnishes something of value for the opportunity to participate. Subsection (b) requires that avalid license be obtained if the gamein 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 acriminal offense. Because some of these games are conducted over television, you also askwhether federal lawpreempts the Bingo Enabling Act. Section 1304of Title 18of the United States Codeprovides:

Whoever broadcasts by means of any radio station for which alicense is required byanylaw of the United States, or whoever, operating any such station, knowingly permits the broadcasting of. anyadvertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent inwhole 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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enterprise, or scheme, whether said list contains anypart 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 47U.S.C. §153(b) (1982); Allen B. DumontLaboratories v. Carroll, 184 F.2d 153 (3rd Cir. 1950). cert. denied, 340U.S. 929 (1951). The SanAntonio 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 hadno jurisdiction to enjoin the broadcast because Congress had

“preempted the field’ of regulating the broadcasting of [it] over TV.” 386S.W.2d at 174. TheSocony Mobil holding would be in point if apromotional 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 whoparticipates as aplayer furnishes something of value for the ouuortunitv touarticipate. However, the federal statute does not reach- ‘“give away”-programs. Federal Communications Commission v. American Broadcasting Company, v. 347 U.S. 284 (1954); Caples Co. United States, 243F.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 awayprograms” requiring nomovement 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. 230F. 773 (1st Cit. 1916). Thus, federal lawdoes not punish the use of the mails or broadcasting facilities to conduct, promote or administer abingo gameif the person whoparticipates as aplayer 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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criminal laws relating to lotteries or “give away” promotions, the Texas law is enforceable. Wedo not believe it was the intent of Congress in enacting sections 1302 and 1304 to occupy the field of criminal lawwith 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, 781F.2d 384 (5th Cir. 1986).

- In Headv. NewMexico Board of Examiners in Optometry. 374U.SI 424 (1963), the United States Supreme Court rejected a claim that a state restriction onradio advertising of optometry prices wasinvalid because, supposedly, the enactment of the Federal Communications Act preempted the field. Mr. Justice Brennan. concurring, said:

TheNewMexico 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 legislation, whether concerned with the health andsafety of consumers, or with their protection against fraud anddeception, embodies atraditional 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 onewhoholds afederal license. 374U.S. at 445. Webelieve thf Texas ban onunlicensed bingo games presents.an analogous situation. Cf. Attorney General Opinion MW-488 - (1982)

. Thepolicy andscope of section 1304wasconsidered by the Second Circuit in 1969, afewyears after the Bead case was decided. InNew 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 1304and 1302might preempt astate lawwhich 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 donot preempt astate law that would prevent the production of the material which, if it were produced, might then bebroadcast or mailed. Cf. Brooklyn Daily Eagle v. Voorhies. 181F. 579 (E.D.N.Y. Cir. 1910). -

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In prohibiting the broadcasting of lottery information Congress was not acting in avacuum; for more than one hundred years a prohibition ouconducting 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 andtechnology of broadcasting, but as enforcement of the clear congressional policy embodied in section 1304. (Emphasis added).
414U.S. at 995. Thepolicy of the federal statute is to prohibit (in aid of the states) the broadcast of certain types of information; it is not onepromoting the broadcast of whatever has not been specifically prohibited by federal law.’ Theoperation of state law toprevent the broadcast of “give away” programs is not **at** odds with any federal policy favoring such broadcasts. Asthe 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 astate statute would

2. Thescope of section 1304wasfurther restricted by the Third Circuit in NewJersey 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 1307of Title 18(making section 1304 inapplicable to information about state-conducted lotteries), sub__ sequently enacted. United States v. NewJersey State Lottery Commission, 420U.S. 371 (1975).

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prevent au act that a federal statute would otherwise "permit" (but not urotect as a oollcv matter) is not sufficient to warrant preemptiod. 437U.S. at'131.O **Cf. King** v. Gemini Food Services, Inc., 438F. Supp. 964 (E.D. Va. 1976),aff'd per curiam, 562F.2d 297 (4th Cir. 1977) (adopting district court's reasoning), cert. denied, 434 U.S. 1065 (1978); Vincent v. General Dynamics Corp., 427F. 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 whoparticipate asplayers furnish nothing of value for the opportunity toparticipate.

JIM MATTOX Attorney General of Texas


### JACKHIGRTOWER First Assistant Attorney General


### MARYKELLER Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared byBruce Youngblood Assistant Attoruey General



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