# THEA~TORNEY GENERAL OF TEXAS

W3I.LWIIBON ATl’ORNEY 

### aENEl%AI. Auemx~ 

### 11. -
September 11, 1957

Honorable E. James Kazen OpinionNo. WW-222 District Attorney 49thJudicialDistrict 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 "PlayMarko!'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 "PlayMarko." This Opinion is, therefore, beingwritten in response to these requests.
As I understand the game "PlayMarko", as described in your request and in the advertising materialswhich each of you forwarded, lt Is similar to thewell-known game of "Bingo,"although played on television.

A copy of the contract to be entered intobetween a television stationand local merchants or other advertising firms was forwarded. This contract provides that the t,elevFsionstation sells a quantity of the small cardsupon ;Ihichis printed the letters "MA R K 0". There are five numbers in a vertical row beneath each of these letters. The contractprovides that these "Marko"cardswill then be dlstrlbuted by the retail merchant or advertiserwho buys them from the television station to thosewho ask for them without charge and with no requirementof a purchase being made.

During eachweek the television stationprovides 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 coveredwith 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 thewinner of that game. The number of games played is determined by the amount of time given to that particularprogram by the television station. New cards may or may not be distributed eachweek. The television stationagrees to furnishprizes 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 firstpersongetting a Marko must then answer a so-called "skill"question correctly as a conditionprecedent to being declared a winner and eligible to receive a prize? Section 47 of Article III of the Constitution of Texas provides:
"TheLegislature shallpass laws prohibiting the establishment of lotteriesand gift enterprises in this State, as well as the sale of tickets in lotteries,gift enterprisesor other evasions involving the lottery principle, established or existing in other States." Article 654, Vernon's Penal Code, provides:
"Ifany person shall establish a lottery or dispose of any estate, real or personal, by lottery, he shallbe fined not less than one hundred nor more than one thousanddollars; or If any person shall sell, offer for sale or keep for saleany ticket or part ticket in any lottery,he shallbe,,fined not less than ten nor more than fifty dollars. Since a lottery isnot defined in the statutes, to determinewhether a particular scheme or" game is a lottery, it is necessary to examlne the courtdecisions. No Texas decisionnor priorAttorneyGeneral's Opinion can be found on the exact game you describe.

It iswell settledthat 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 eitherdirectly or indirectlyby the participants of a considerationfor 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 AmusementCimpany 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 judicialnotice of the countless varieties of schemeswhich have been "Invented"attempting to circumvent the lottery laws. It has been aptly stated recentlyHon. 6. JAmesKazen, page 3 WW-222

by the United States Supreme Court in F.C.C. v. American Broadcasting Co., 347 US a284 (1954) :

"Enforcingsuch legislation has long been a difficult task. Law enforcement officers, federal and state,have been plaguedwith 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 techniquesused 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." QuestionNo. 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 eitherdirectly or indirectlyby the participants of a consideration for the right or privilege of participating.V

As noted, the merchant or advertiserbuys the Marko cards, and in turn, distributes them free of i;%;ri-ge. The public can secure these cards only from those advertiserswho 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 considerationfor 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 merchantspaid a license fee to a promotor and received cards to be distributed to customers. These cards had ten blank spacesupon Wnich were to be placed ten stamps. The cardswere distributed to those who would ask for them upon exchanginga 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 stampswere distributed in the samemanner. Wnen ten stamps had been placedupon a card the customerwould then sign his name and drop it into a large container.At, designated times a drawingwould be had and the person whose card was drawn would receivea prize paid for by the promoter. The argument that thiswas not a lotterywas based on the fact that no con-Hon. E. James Kazen, page 4 ww-222

siderationpassed 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 considerationmay move eitherdirectly or indirectly from the person receiving the prize to the donor thereof,we are impressedwith the fact that the consideration for the entering into such a contest for this prize came Indirectly from the hands of the merchantwho joined the 'Noah'sArk' and paid appellant (promoter or donor of the prize) a license fee therefor, thus furnishing the consideration for all the participantswho 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 obtainingas 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 contestantbut received by the donor.
Onmotion 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 establishmentwhich contributed a certain amount of money in order to join this 'Noahs 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 otherswho 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 securea chance at the prize would necessarily have to go to suchmerchant or business establishment as had contributed to the general fund. As a result, the good will and patronage of the person favoredwith the cards is,secured. This patronage, whatever it may be, is given in exchange for cards and stamps,which is an indirectbenefit 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 subscribingto 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 customerswho come to the store Is furnishing a consideration for all those who play the game.

The Smith case is directly inpoint. If the scheme in the Smith casewas a lottery in violation of the Texas law, then the'scheme Involved in "PlayMarkollis also a lottery in violation of the Texas law. The answer to Question No. 1 is, therefore, the game "PlayMarko" Article 654 (V.P.C.). is a lotteryand 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 ofAppeals 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, inwhich he distinguishedMarko from the type of program involved in the American Broadcasting Co. case, is more consistentwith the element of considerationas interpretedby the Texas courts in lottery cases.

The possibilitythat the game Markomight 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 copyrightgame 'Play

where it states, Marko is a legalprize show,, and as such may be broadcast on any station where state laws are In conformity with Federal laws." (Emphasis added!.

QuestionNo. 2, where a skill auestlon Is asked.
An alternativemethod of playing Mark0 Tequires that the ersonwho first gets a Marko (5 objects in a row on his card P must then correctlyanswer R skill ques:lon before finally being declared a winner, The question then iswhetneT>the requirement of the correctanswer 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 inwhich the Texas court held that the game or schemewas 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 requirementsprecedent for registration),the Texas courts have been quick to condemn promotional schemesas a lottery.Hon. E. James Kazen, page 6 WW-222

Indeterminingwhether a particular scheme is, or Is not, a lottery,the court looks at the plan In its entiretyard to the basic ideaunon which the game is based. However. the primary object of the court's examination iswhether the element of chance is present. The Court in City ofWink v. Griffith Amusement Co., supra,approved the following statement from another jurisdiction. "The ingredient of chance is. obviously. the evil-principlewhich the law denounces and will eradicate; however It may be clothed, a fair exterior." or however It may conceal itself in The Court of CriminalAppeals has adopted similar language in Cole v. State, supra,at page 727,where it stated, "Thecourtwill inquire.not Into the name. but into the game, however skillfullydisqulsed, in order to ascertain If it is prohibited, or if it has the element of chance."

In linewith the testsused by the courts Indetermlning the true nature of the game, it isproper to examine statements of the promoterof the game. &. Mims forwardedan advertising brochure of the Caples Company, Chicago, Illinois,which states that this company is owner of the copyright "PlayMarko." The Marko cardsapparentlyare furnishedby the Caples Company for a considerationpaid by the television stations. This advertisingbrochure contains the following remarkswhich are~pertinent to our inquiry: "Mark0 is a prize give away program; the blgser the prizes, the more popular the programwith the viewers ; Grand Prizes are very effective. An automobile,a big vacation trip or s:me zther major prizewill increase interest and audience

. . . ; Play Marko is a game of chance. This is its appeal

. . . chance to win"; the fact that everyplayer has an equal "PlayMarko is simply old fashionedLotto or Bingo producedas a television show,without cost or consideration to the playerat home."

Evenwith a question of skill, there is no doubt that thosewho become eligible to answer the skill question are determinedby an elementof chance. No Texas lottery case can be found involvinga mixed 7ame of chance and skill. In Adams v. Antonio, 88 S.W. 2d 503 Civ. App. 1935, error ref.), the question involvedwas whether a marble tablewas one of skill or one of chance. JusticeAlexander noted that Article 619 (V.P.C.), I condemninggamingdevices, made no distinctionbetween games of chance orgames 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 skillas to make the game essentiallyone of chance and not of skill."

InHoffman v. State, 219 S.W. 2d 539 (Civ.App. 1949), the game soughtto be condemned consisted of a board with holes cut into itwith the player throwingdifferent colored balls intoHon. 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 contentionwas made that this was a game of skill, since the playersdeveloped skill in the throwing of the ball onto the surface. In condemning the game as one of chance, the court emphasizedArticle III, Section 47, of the Texas Constitutionas follows, "The legislature shallpass laws prohibiting the establishmentof lotteries

. . . or other evasions lnvolvina the lottery nrinciole." (Emphasisby the court). Continuing, the court said, "Curconstitutionalprovisions against lotteries, 'orother evasions Involvingthe lottery principle' is stronglyworded, the same or similar language appearing in all preceding Constitutions;beinguniformly construed 'witha 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 concludedas follows: "Thatwe believe it is almost impossible for the most ingeniousand subtlemind 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 (Emphasisby the court.) PriorAttorney General's Opinions have discussedat length the schemes involvingmixed elements of chance and skill in~thedetermination of a winner of a contest. In AttorneyGeneral's OpinionNo. 

### v-238,June 7, 1947, cooperative advertisingplan known as itwas,,heldthat a Bonanza was a lottery. OpinionNo. 

### V-1483,July 

### 18, 1952,discussed the legality of "QuizBank" or "QuizShows". This opinion shows the inherent difficulty in determiningwhether chance 'orskillpredominates in any particular scheme. In OpinionNo. 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 thatwhether the "Bank of Knowledge"was one of skill or one of chance would depend upon the type of questionsasked, whether the answers to the qu~estions asked would be basedupon prior knowledge orupon guess.

From a review of the analogous Texas cases, the reasoningused by the courts in the variousdecisions concerninglotteries, and based upon prior Opinions of this office, in our opinion, the game of "PlayMarko", even though the ultimatewinner would be required to answer a skillquestion, is primarily a game of chance, and is, therefore, a lottery, and violates the constitutionalprovisions and statuteprohibiting lotteries.
SUMMARY The game "PlayMarko" is a lottery in violation of Section 47 of Article III, Constitution ofHon. E. JamesKazen, 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 thewinner of the game must correctly a skill" question before recelving a prize, It is still essentiallybased 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