THEA~TORNEY GENERAL 

OF TEXAS 

W3I.L WIIBON 

ATl’ORNEY aENEl%AI. 

Auemx~ 11. -

September 11, 1957 

Honorable E. James Kazen Opinion No. WW-222 

District Attorney 

49th Judicial District Re: Whether a game called "Play 

Laredo, Texas Marko" is a lottery. 

Dear Mr. Kazen: 

You have requested an Opinion as to whether a game 

called "Play Marko!' is ?n violation of the Texas Penal Laws. 

Honorable Joseph H. Mims, District Attorney, Midland, Texas, 

also requested an Opinion as to the legality of "Play Marko." 

This Opinion is, therefore, being written in response to these 

requests. 

As I understand the game "Play Marko", as described in 

your request and in the advertising materials which each of you 

forwarded, lt Is similar to the well-known game of "Bingo," although played on television. 

A copy of the contract to be entered into between a 

television station and local merchants or other advertising firms 

was forwarded. This contract provides that the t,elevFsion station sells a quantity of the small cards upon ;Ihich is printed 

the letters "M A R K 0". There are five numbers in a vertical 

row beneath each of these letters. The contract provides that 

these "Marko" cards will then be dlstrlbuted by the retail merchant or advertiser who buys them from the television station to 

those who ask for them without charge and with no requirement of 

a purchase being made. 

During each week the television station provides time 

for the playing of the game "Marko". A person in the station 

studio takes balls from a container. Upon each bell is printed 

one of the letters, I'M", "A", "R", "K", or ,'O", and a number. 

This letter and number is then shown on the telev:sion screen. 

If the viewer's card has a match!.ng number and ietter, the number is covered with an object. When a viewer has covered five 

numbers in a row, either horizontally, diagonally, or vertically, 

he has what is called a "Marko'!. He then calls the television 

station to have his card verified against a master card In the 

studio, and if verified as to having a "Msrko", he is declared 

the winner of that game. The number of games played is determined by the amount of time given to that particular program by 

the television station. New cards may or may not be distributed 

each week. The television station agrees to furnish prizes to 

the winners. 
Hon. E. James Kazen, page 2 WW-222 

Two questions are asked, being, Does the game "Play 

Marko" violate the Penal Statutes of Texas: 

1. When a prize is given to the winner by the 

television station? 

2. When the television station requires that 

the first person getting a Marko must then 

answer a so-called "skill" question correctly as a condition precedent to being declared a winner and eligible to receive a 

prize? 

Section 47 of Article III of the Constitution of Texas 

provides: 

"The Legislature shall pass laws prohibiting the 

establishment of lotteries and gift enterprises in this 

State, as well as the sale of tickets in lotteries, gift 

enterprises or other evasions involving the lottery principle, established or existing in other States." 

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 fined 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,,fined not less than ten nor 

more than fifty dollars. 

Since a lottery is not defined in the statutes, to determine whether a particular scheme or" game is a lottery, it is 

necessary to examlne the court decisions. No Texas decision nor 

prior Attorney General's Opinion can be found on the exact game 

you describe. 

It is well settled that a lottery consists of three 

essential elements, namely: (1) a prize or prizes, (2) the award 

or distribution of the prizes or prizes by chance, and (3) the 

payment either directly or indirectly by the participants of a 

consideration for the right or privilege of partici ating. Cole 

v. State, 133 Tex. Crlm. 548 112 S.W. 2d 725 (i?387; City of 

Wink v. Griffith Amusement Cimpany 129 Tex. 40, 100 S.W. 2d 

695 (1936); Smith v. State, 136 Tei. Grim. 611, 127 S.W. 2d 297 

(1939); &ice v. Stati, 242 S.W. 2d 433 (Tex. Crlm. 1951). 

Many courts have taken judicial notice of the countless 

varieties of schemes which have been "Invented" attempting to 

circumvent the lottery laws. It has been aptly stated recently 
Hon. 6. JAmes Kazen, page 3 WW-222 

by the United States Supreme Court in F.C.C. v. American Broadcasting Co., 347 US a 284 (1954) : 

"Enforcing such legislation has long been a difficult task. Law enforcement officers, federal and 

state, have been plagued with as many types of lotteries as the seemingly inexhaustible ingenuity of their 

promoters could devise in their efforts to circumvent 

the law. When their schemes reached the courts, the 

decision, of necessity, usually turned on whether the 

scheme, on its own peculiar facts, constituted a lottery. So varied have been the techniques used by promoters to conceal the joint factors of prize, chance, 

and consideration, and so clever have they.been in applying these techniques to feigned as well as legitimate 

business activities, that it has often been difficult 

to apply the decision of one case to the facts of another." 

Question No. 1, where no skill question Is asked. 

It seems clear that the essential elements of "prize!' 

and (Ichance!' are present. The difficult que:tion for determination concerns the element "consideration.' D . .(3) the payment 

either directly or indirectly by the participants of a consideration for the right or privilege of participating.V 

As noted, the merchant or advertiser buys the Marko 

cards, and in turn, distributes them free of i;%;ri-ge. The public 

can secure these cards only from those advertisers who nave purchased them, Likewise, the advertisers can get tne cards only 

from the television station tha,i: has purchased the franchise 

right from the owner to play this game over its zta.c:on. The 

consideration for the game is present, althougc jr; does not move 

directly from the player. The next question i3 whether it moves 

indirectly from the player. It is believed that this question 

is answered In State v. Smith, 136 Tex, Grim. App. 611, 127 S.W. 

2d 297 (1935) . ThFr case invoived a scheme known as "Noah's 

Ark." Here a number of merchants paid a license fee to a promotor and received cards to be distributed to customers. These 

cards had ten blank spaces upon Wnich were to be placed ten 

stamps. The cards were distributed to those who would ask for 

them upon exchanging a wrapper or a facsimile thereof from merchandise similar to that sold in the store. There was no requirement that the cust,omer buy anything before receiving a 

card. The stamps were distributed in the same manner. Wnen ten 

stamps had been placed upon a card the customer would then 

sign his name and drop it into a large container. At, designated 

times a drawing would be had and the person whose card was drawn 

would receive a prize paid for by the promoter. The argument 

that this was not a lottery was based on the fact that no con- 
Hon. E. James Kazen, page 4 ww-222 

sideration passed from the donor of the prize to the recipient. 

In refuting this argument the court, speaking through Judge 

Graves, made' this statement: 

"Bearing in mind that consideration may move 

either directly or indirectly from the person receiving the prize to the donor thereof, we are impressed with the fact that the consideration for 

the entering into such a contest for this prize 

came Indirectly from the hands of the merchant who 

joined the 'Noah's Ark' and paid appellant (promoter or donor of the prize) a license fee therefor, thus furnishing the consideration for all the 

participants who entered such contest from his 

store or place of business. . . Moving indirectly, it may be for the benefit'of the contestant, 

through the merchant or dealer who also received a 

benefit therefor, presumably at least in the advertising that he was obtaining as well as playing 

upon the natural cupidity of mankind to obtain 

something for nothing, and thus moving it completes 

the trinity of a prize arrived at by chance, and 

based upon a consideration, not only given by the 

contestant but received by the donor. 

On motion for rehearing, Judge Krueger gave additional reasons 

as to why there was consideration, using language as follows: 

"It is quite clear to us from the record 

that each business establishment which contributed 

a certain amount of money in order to join this 

'Noah s Ark' and by whom the prize is paid, receives 

a card or cards and stamps symbolic of some animal. 

These cards are furnished to the merchant or business 

establishment, and by them distributed to customers 

or others who come to the establishment. . . . It IS 

obvious that the dealer, merchant or business establishment not contributing to the prize, did not receive any card or stamp for distribution. Consequently, 

parties desiring to secure a chance at the prize would 

necessarily have to go to such merchant or business establishment as had contributed to the general fund. As 

a result, the good will and patronage of the person 

favored with the cards 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 1s a bait handed out to the gullible as an 

Inducement to become customers of the dealers or merchants subscribing to the plan.'! 
-. 

-_ 

, 

Hon. E. James Kazen, page 5 WW-222 

Applying the facts of the Smith case to the game of 

Marko, we find that the merchant who buys the Marko cards from 

the television station for distribution to the customers who 

come to the store Is furnishing a consideration for all those 

who play the game. 

The Smith case is directly in point. If the scheme 

in the Smith case was a lottery in violation of the Texas law, 

then the'scheme Involved in "Play Markoll is also a lottery in 

violation of the Texas law. The answer to Question No. 1 is, 

therefore, the game "Play Marko" 

Article 654 (V.P.C.). 

is a lottery and violates 

In reaching this conclusion, we are not unaware of the 

recent decision in Caales Co. v. United States, 243 F. 2d 232 

(U.S. Ct. App. D.C. 1957). In this case, the Federal Communications Commission had issued an order declaring that Play Marko 

was a lottery. On appeal from this ruli~ng, the Court of Appeals 

reversed the F.C.C.. holding that the essential element !!conslderatlon" was lacking, basing its decision upon F.C.C. v. American Broadcastinw Co., 347 U.S. 284, 75 S. Ct. 593, 99 L. Ed. 

699 (1954) 0 In our opinion, the dissenting opinion of J. Danaher &the Canles case, in which he distinguished Marko from 

the type of program involved in the American Broadcasting Co. 

case, is more consistent with the element of consideration as 

interpreted by the Texas courts in lottery cases. 

The possibility that the game Marko might be held to 

be a lottery by State law Ls.recognized in the adverj;isi~ng,,brochure of the Caples 

Marko"), 

Company; (owners of the copyright game 'Play 

where it states, Marko is a legal prize show,, and as 

such may be broadcast on any station where state laws are In conformity with Federal laws." (Emphasis added!. 

Question No. 2, where a skill auestlon Is asked. 

An alternative method of playing Mark0 Tequires that 

the erson who first gets a Marko (5 objects in a row on his 

card P must then correctly answer R skill ques:lon before finally 

being declared a winner, The question then is whetneT> the requirement of the correct answer to the skill question removes 

the element of chance from Marko? 

No Texas case directly in point can be found. There 

have been only a few cases involving an alleged lottery in which 

the Texas court held that the game or scheme was not a lottery. 

See Brice v. State, 242 S.W. 2d 433 (Tex. Civ. App. 1951). Other 

than the type of promotional scheme used in the Brice case (merchandise given to registrants at the opening of a new store, 

with no requirements precedent for registration), the Texas courts 

have been quick to condemn promotional schemes as a lottery. 
Hon. E. James Kazen, page 6 WW-222 

In determining whether a particular scheme is, or Is 

not, a lottery, the court looks at the plan In its entirety ard 

to the basic idea unon which the game is based. However. the 

primary object of the court's examination is whether the element 

of chance is present. The Court in City of Wink v. Griffith 

Amusement Co., supra, approved the following statement from 

another jurisdiction. "The ingredient of chance is. obviously. 

the evil-principle which the law denounces and will eradicate; 

however It may be clothed, 

a fair exterior." 

or however It may conceal itself in 

The Court of Criminal Appeals has adopted 

similar language in Cole v. State, supra, at page 727, where it 

stated, "The court will inquire. not Into the name. but into the 

game, however skillfully disqulsed, in order to ascertain If it 

is prohibited, or if it has the element of chance." 

In line with the tests used by the courts In determlning the true nature of the game, it is proper to examine statements of the promoter of the game. &. Mims forwarded an advertising brochure of the Caples Company, Chicago, Illinois, which 

states that this company is owner of the copyright "Play Marko." 

The Marko cards apparently are furnished by the Caples Company 

for a consideration paid by the television stations. This advertising brochure contains the following remarks which are~pertinent to our inquiry: "Mark0 is a prize give away program; 

the blgser the prizes, the more popular the program with the 

viewers ; Grand Prizes are very effective. An automobile, a 

big vacation trip or s:me zther major prize will increase interest and audience . . . ; Play Marko is a game of chance. This 

is its appeal . . . 

chance to win"; 

the fact that every player has an equal 

"Play Marko is simply old fashioned Lotto or 

Bingo produced as a television show, without cost or consideration to the player at home." 

Even with a question of skill, there is no doubt that 

those who become eligible to answer the skill question are determined by an element of chance. No Texas lottery case can be 

found involving a mixed 

7 

ame of chance and skill. In Adams v. 

Antonio, 88 S.W. 2d 503 Civ. App. 1935, error ref.), the question involved was whether a marble table was one of skill or 

one of chance. Justice Alexander noted that Article 619 (V.P.C.), I 

condemning gaming devices, made no distinction between games 

of chance or games of skill, and made this comment, "However, if 

a decision of this question be necessary to a solution of the 

case before us, it is our opinion from the evidence that the 

element of chance, as the game is played, so predominates over 

the element of skill as to make the game essentially one of chance 

and not of skill." 

In Hoffman v. State, 219 S.W. 2d 539 (Civ. App. 1949), 

the game sought to be condemned consisted of a board with holes 

cut into it with the player throwing different colored balls into 
Hon. E. James Kazen, page 7 uw-222 

this surface. The object of the game, like Marko and Bingo, 

was to line up the balls In a row, vertically, horizontally or 

diagonally. The contention was made that this was a game of 

skill, since the players developed skill in the throwing of 

the ball onto the surface. In condemning the game as one of 

chance, the court emphasized Article III, Section 47, of the 

Texas Constitution as follows, "The legislature shall pass laws 

prohibiting the establishment of lotteries . . . or other evasions lnvolvina the lottery nrinciole." (Emphasis by the 

court). Continuing, the court said, "Cur constitutional provisions against lotteries, 'or other evasions Involving the 

lottery principle' is strongly worded, the same or similar 

language appearing in all preceding Constitutions; being uniformly construed 'with a view to remedying the mischief intended 

to be prevented, and to suppress all evasions for the continuance of the mischief, 54 C.J.S. Lotteries, Section 19, p. 862." 

The court concluded as follows: "That we believe it is almost 

impossible for the most ingenious and subtle mind to devise any 

scheme or plan, short of a gratuitous distribution of his own 

property that will not be held by the courts 

in vlolaiion of the foregoing statute." 

of this State as 

(Emphasis by the court.) 

Prior Attorney General's Opinions have discussed at 

length the schemes involving mixed elements of chance and skill 

in~the determination of a winner of a contest. In Attorney General's Opinion No. v-238, June 7, 1947, 

cooperative advertising plan known as 

it was,,held that a 

Bonanza was a lottery. 

Opinion No. V-1483, July 18, 1952, discussed the legality of 

"Quiz Bank" or "Quiz Shows". This opinion shows the inherent 

difficulty in determining whether chance 'or skill predominates 

in any particular scheme. In Opinion No. O-1789, December 22, 

1939, the quiz show 'Dr. I. Q." was held not a lottery, the winners being determined solely by their answers based on skill or 

prior knowledge. In Opinion No. V-544, April 13, 1948, it was 

held that whether the "Bank of Knowledge" was one of skill or 

one of chance would depend upon the type of questions asked, 

whether the answers to the qu~estions asked would be based upon 

prior knowledge or upon guess. 

From a review of the analogous Texas cases, the reasoning used by the courts in the various decisions concerning lotteries, and based upon prior Opinions of this office, in our 

opinion, the game of "Play Marko", even though the ultimate winner would be required to answer a skill question, is primarily 

a game of chance, and is, therefore, a lottery, and violates the 

constitutional provisions and statute prohibiting lotteries. 

SUMMARY 

The game "Play Marko" is a lottery in violation of Section 47 of Article III, Constitution of 
Hon. E. James Kazen, page 8 WW-222 

Texas, and Article 654, V. P. C., because it lnvolves the elements of (1) giving a prize, (2) 

based on chance, and (3) the payment of a consideration for the privilege of participating In the 

game; 

answer 

and even though the winner of the game must 

correctly a skill" question before recelving a prize, It is still essentially based on 

chance, and Is a lottery. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

EPH:cm:wc 

By s/Edwin P. Horner 

Assistant 

APPROVED: 

OPINION COMMITTEE: 

George P. Blackburn, Chairman 

John Reeves 

E. M. DeGeurin 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

James N. Iudlum