March 17. 1987 . 

Eonorable Bob Bullock 

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 

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 newspaper 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 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. 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. 

p. 2931 
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: 

or 

(t’,ze; the purposes of this section, ‘bingo’ 

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 administering 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 anything of more than nominal value for the opportunity 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’ association, 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 anything of more than nominal value for the opportunity to participate; and 

(B) the prizes awarded or to be awarded are 

nominal. 

p. 2932 
Honorable Bob Bullock - Page 3 (JM-646) 

(c) This section applies to all political subdivisions 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 consideration 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 

p. 2933 
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 broadcasting 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 

p. 2934 
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 legislation, 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), subsequently enacted. United States v. New Jersey State Lottery Commission, 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 

p. 2937