Hon. NormanW.Barr Opinion No. WW-1421

County Attorney TomGreen County Re: !>ether the gamecalled SanAngelo, Texas Tel-A-Bingo which appears on television constitutes a Dear Mr. Barr: lottery under stated facts. Youhave 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 gameplayed Is called 'Tel-A-Bingo,' which Is sponsored by sometwenty-odd merchants andwhich appears once each day over the local television station. Cards forplaying the game maybe obtained either by visiting one of the local merchants sponsoring the gameor by writing the television station andhaving a card mailed free of charge andpost paid to the participant. Thecards are given free andnopaymentfor the card or purchase Is necessary In order to obtain the same. Thetelevision program lasts thirty minutes each day andduring the program numbers are called out and the namesof merchants participating are given. Awinner must contact the station within a sp$clfied period of time andreceives a cash prize. Article 654, Vernon's Penal Code, provides: "If anyperson 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 anyperson 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 awardor distribution of the prize or or',ses by chance, and (3) payment either directly or indirectly by theHon. NormanBarr, page 2 (WW-1421)

participants of ao;on;fd;p;ion for the right privilege of participating. C e a e 122S.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 andproducts. They evidently feel that the patronage andgood will created by this gameof chance justifies their sponsoring cost. The question to be r$solved le whether this patronage and good will constitutes consideration.

Thetwo leading Texas cases on this question are Smith v. %t;;eltl~~dS,;i~ 297 (Tex.Crlm. 1939), where the Court held

@Ice v. State, 242S.W.2d 433, (Tex.Crlm. 1951), wherk the Court held that It did not. In the Smith case, the customer wasrequired to visit somesponsoring 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 memberof the organization. Somesuch wrappers, contalnera, etc., would be good for more stamps than others, governed by the price of the commodity that wasoriginally contaltied in such containers. The Court, upon these facta, held that the license fee payed by the’participating merchant wasthe payment of consideration moving Indirectly from the contestant and directly to the owner of the game. OnAppellant’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. Aaa result, the good will andpatronage of the person favored with the carda Is secured. This patronage, whatever It maybe, is given In exchange for cards and stamps, which is anindirect benefit to the operator of the scheme, andenables himto continue his gameof chance. It is a bait handed out to the gullible as anInducement to become customers of the dealers or merchants subscribing to the plan.!’ In the Brica case, the public wasinvited to the openlng of Defendant’s newstore andto register for prizes to be

## 5396

Hon. NormanBarr, page 3 (NW-1421)

givenaway. said: TheCourt, inholding that this wasnot a lottery,

?Jnder the authorities mentioned, wemustconclude that in the absence of any character of favoritism shownto 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$her than to registerwithout charge at the store, though the donor mayreceive a ben$fit from the drawing In the wayof advertisement. Andon 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. Theprinciple laid downIn the Brlce case wasreiterated In F.C.C. v. American Broadcastinn Co., U.S. 284, 75 S.Ct. 593, 98L.Ed;, 699 (1954). There the SupremeCourt held that a give-away program on radio and television wasnot a lottery. The Court, upon the question of consideration, said:

'The Courtshave defined consideration In various ways, but so far as weare aware none has ever held that a contestant listening at home to a radlo or television program satisfies the consideration requirement.

... Tobe eligible for a prize from the 'glve-away' program involved here, not a single homecontestant Is required to purchase anything, or pay any admission price or leave his hometo visit the promoter's place of business; the only ezfort required for participation is listening. "Hebelieve 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. NormanBarr, page 4 (WW-1421)

are controlling hef;e. You are therefore advised that in our opinion the game, Tel-A-Bingo" as described ~lnyour 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, WILLWILSON

_

BYMarvin F. Sentell Assistant Attorney

General MFS:bjh APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Gordon Zuber Bill Colburn BenHarrison W.0. Shultz REVIEWED

FORTHEA!tTORNti GENERAL BY: Leonard Passmore