Hon. Norman W. Barr Opinion No. WW-1421 

County Attorney 

Tom Green County Re: !>ether the game called 

San Angelo, Texas Tel-A-Bingo which appears 

on television constitutes a 

Dear Mr. Barr: lottery under stated facts. 

You have requested an oplnl~n concerning whether a 

certain television program called Tel-A-Bingo constitutes a 

lottery under the following facts submitted In your request: 

"The game played Is called 'Tel-A-Bingo,' 

which Is sponsored by some twenty-odd merchants 

and which appears once each day over the local 

television station. Cards for playing the game 

may be obtained either by visiting one of the 

local merchants sponsoring the game or by writing the television station and having a card 

mailed free of charge and post paid to the participant. The cards are given free and no payment for the card or purchase Is necessary In 

order to obtain the same. The television program 

lasts thirty minutes each day and during the 

program numbers are called out and the names of 

merchants participating are given. A winner must 

contact the station within a sp$clfied period of 

time and receives a cash prize. 

Article 654, Vernon's Penal Code, provides: 

"If any person shall establish a lottery or 

dispose of any estate, real or personal, by 

lottery, he shall be fine not less than one 

hundred nor more than one thousand dollars; or 

if any person shall sell, offer for sale or keep 

for sale any ticket or part ticket in any lottery, 

he shall be fine no; less than ten nor more 

than fifty dollars. 

Every lottery, as judicially defined in this state, consists of the following three essential elements: (1) a prize 

or prizes, (2) the award or distribution of the prize or or',ses 

by chance, and (3) payment either directly or indirectly by the 
Hon. Norman Barr, page 2 (WW-1421) 

participants of ao;on;fd;p;ion for the right privilege of 

participating. C e a e 122 S.W.2d 725 

Smith v. State, 127 S.W.2d 29j (Tex.Crim. 

Tex.Crim. 1937); 

Brice v. Stata 

242 S.W.2d 433 (Tex.Crlm. 1959). 

Since the elements “prize” and “chance” are clearly 

present In the facts outlined In your request, your question 

involves the presence or absence of the element of consideration. 

Sponsoring merchants of this program are using it to 

advertise and solicit business for their stores and products. 

They evidently feel that the patronage and good will created by 

this game of chance justifies their sponsoring cost. The question to be r$solved le whether this patronage and good will 

constitutes consideration. 

The two leading Texas cases on this question are Smith v. 

%t;;eltl~~dS,;i~ 297 (Tex.Crlm. 1939), where the Court held 

@Ice v. State, 242 S.W.2d 433, (Tex.Crlm. 

1951), wherk the Court held that It did not. 

In the Smith case, the customer was required to visit 

some sponsoring merchant in order to secure the cards by which 

to play the game. lie was also required to surrender box tops, 

wrappers, cartons, or containers of any commodity that was sold 

by any member of the organization. Some such wrappers, contalnera, etc., would be good for more stamps than others, governed 

by the price of the commodity that was originally contaltied in 

such containers. The Court, upon these facta, held that the 

license fee payed by the’ participating merchant was the payment 

of consideration moving Indirectly from the contestant and 

directly to the owner of the game. On Appellant’s Motion for 

Rehearing, the Court said: 

“Consequently, parties desiring to secure a 

chanc’e at the prize would necessarily have to go 

to such merchant of bueineae eetabllahment as had 

contributed to the general fund. Aa a result, the 

good will and patronage of the person favored with 

the carda Is secured. This patronage, whatever It 

may be, is given In exchange for cards and stamps, 

which is an indirect benefit to the operator of the 

scheme, and enables him to continue his game of 

chance. It is a bait handed out to the gullible as 

an Inducement to become customers of the dealers 

or merchants subscribing to the plan.!’ 

In the Brica case, the public was invited to the openlng of Defendant’s new store and to register for prizes to be 
5396 

Hon. Norman Barr, page 3 (NW-1421) 

given away. 

said: 

The Court, in holding that this was not a lottery, 

?Jnder the authorities mentioned, we must conclude that in the absence of any character of 

favoritism shown to customers, the lottery statute, 

Article 654, P.C., is not violated under a plan 

whereby a merchant awards a prize or prizes by 

chance to a registrant without requiring any reglstrant to be a customer or to purchase merchandise 

or to do o$her than to register without charge at 

the store, though the donor may receive a ben$fit 

from the drawing In the way of advertisement. 

And on the Motion for Rehearing, said: 

"The 'consideration' in this case which moves 

from the parties participating In the drawing for 

the prize, or prlzegto Appellant Is entirely 

fanciful. It is not suf;iclently substantial to 

be.classed as a reality. 

The principle laid down In the Brlce case was reiterated 

In F.C.C. v. American Broadcastinn Co., U.S. 284, 75 S.Ct. 

593, 98 L.Ed;, 699 (1954). There the Supreme Court held that 

a give-away program on radio and television was not a lottery. 

The Court, upon the question of consideration, said: 

'The Courts have defined consideration In 

various ways, but so far as we are aware none 

has ever held that a contestant listening at home 

to a radlo or television program satisfies the 

consideration requirement. . . . To be eligible for 

a prize from the 'glve-away' program involved here, 

not a single home contestant Is required to purchase anything, or pay any admission price or leave 

his home to visit the promoter's place of business; 

the only ezfort required for participation is 

listening. 

"He believe that It would be stretching the 

statute to the breaking point to give an in;erpretation that makes such prcgrams a crime. 

It is our opinion that the facts in the Smith case distinguish it from this case and that the holdings in Brlce v. 

State, suora, and F.C.C. v. American Broadcasting co., ,ELQZ% 
Hon. Norman Barr, page 4 (WW-1421) 

are controlling hef;e. You are therefore advised that in our 

opinion the game, Tel-A-Bingo" as described ~ln your request 

does not violate Article 654, Penal Code of Texas. 

SUMMARY 

The advertising program described In your 

request Is not a lottery within Article 654, 

Penal Code of Texas, because of the ,absence 

of any consideration passing either directly 

or Indirectly from the participant to the donor. 

Yours very truly, 

WILL WILSON _ 

BY 

Marvin F. Sentell 

Assistant Attorney 

General 

MFS:bjh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Gordon Zuber 

Bill Colburn 

Ben Harrison 

W. 0. Shultz 

REVIEWED FORTHE A!tTORNti GENERAL 

BY: Leonard Passmore