Hon. R. Y. Lindsey,Jr. OpinionNo. V-1485 County Attorney Dawson County Re: Lamesa, Texas Legality of theatre prize schemes called "QnlsBank" or "Quiz Show" and "MovDear Sir: le Sweepstakes.?

You reqnest an opinion of this officeas to whether either of the following quoted fact situations constitutesa violation of Articles 654 and 655, Vernon's Penal *de, prohibiting lotteriesand raffles.

? "FACTSfTmTION NO. I..A n&vi& giveaway show ontitled either 'QuizDank' or 'Quizghow"is operated on the folloilng basis:

"At the time theatre ticketsare purchased at the Drive-In Theatre located on the outskirts of the City, an attendant in front of the ticket booth passes out to each patron in the respective automobiles
a card upon which is inscribedeither 'Quiz Dank' or 'QuizShow.' Also printed on the give-away cards are spaces for the answera to twelve questions.' On the 'QuizDank' cards, answers to questlonswhich are ;asked

over the loudspeakerdurlng~ intermission
are made by punching a hole through the card under theheading of either ‘Yes’ or 'NO', which constitute8 the patrons answers to questions asked by theMC, which questions cover topics Includinghistorical events, geographical locationsand subjects, or any other pertinent questions taken from encyclopedias or ather sources of information to test the patron's skill. In connectionwith the 'QuizShow' cards handed out to patrons, spaces are provided
on the cards for patrons to designateanHon. R. Y. Lindsey,Jr., Page 2, (V-1483)

answer to each of the ten questions projected on the screen by the process of punching a hole through the card and designating the patron's answer to be one of three possible answers also projected ,onthe,,

screen with the questions. The patron designates'which of the three answers he thinks to be correct by punching a hole through the letterA, B, or C, ,underthe respective number on the card. ,Inboth of the above set out give-away shows, the patrons are given ten minutes after the questions have been announced
over the loud-speaker or projected on the screen in which to complete their answers by making the appropriatepunch :marks on the card and then depositing their cardswith their names and addresses inscribed thereon in a common receptacle in or near the concession stand inside the theatre. Normally, the prize money starts off with an amount in the bank designatedat $25.00 up to $100.00,

as theprize for answering the questions correctly,and if none of the patrons win
on the $articularnight, then an addltional 25.00 is added to the prize money and carried over to the next week's program. In both of the Quiz Shows referred to patrons need not be present towin the prize money. Winners or the absence of a winner at each particular program are usually announced at the end of the last feature shown by the respective theatres for the evening. As stated above, one of the Quiz Shows restricts all of its questions tomatters pertaining to various subjectmatter that is found in encyclopedias and otherperiodicals. In the other quiz show, a porti n of the questions projected on the 1

scre n are lifted or derived from scenes or circumstancespertaining to a movie shown at thisparticular theatre several days prior to the date of the Quiz Show, the rest of the questionsare taken from and pertain to historical events and othermiscellaneous matters of a type normally given on radio quiz shows and other types of give-awayHon. R. Y. Lindsey,Jr., Page 3, (v-1483)

programs. Patronsmust purchasea theatre tlcke~t

;atthe respective ticket booths In order to be able to participate in ‘:Quiz

Rank’ or ‘QuizShow’ as above .outlined,etin.“though they do not have to be.:present

inthe theatre’

towin or obtain the prize money give-away to the personanswering all the questions correctly. It is my understanding that childrenunder the age of 12 years are not permitted to participate in either the ‘QuizDank’ or ‘QuizShow’ programs.

. e *”

”“FACT,

STTUATION’

N0. II. A local drive-In thestre,‘assunadded induc&&nt” for buildingup patronage and attendance of its theatre, on one night out of every week presents a game called ‘MovieSweepstakesI. ‘MovieSweepstakes’ Is a game in which films of famous horce races are shown as a special attraction in the theatre on a particularnight in theweek. On the ‘Sweepstakes’night, patrons inside the theatre select three of the films at random to be shown,which means that three separatehorse races from actual scenes at a race-track are shown on the screen. These are then shown in the order selected and anyone who has previously chosen the correctwinners In all three races wins a prize.

“To be eligible to win theprize, it is not necessary that one buy a ticket to the theatre,nor does one have to enter the theatre in order to collecthis prize. Also, he need not be in the vicinity of the theatreat the time the races are shown. In the operation of ‘MovieSweepstakes‘,a game card is handed to all adultswho uare to pick one up at the theatre,whether he’ intends to buy a ticket and see the regular show, or, not

. The cards are not handed out at the ticket office, but to anyone who.de- ,3 Ires ,one

,. Those snotentering the theabe. simplywrite theirnames and addresses on the bottoms of the cardswhich they then deposit in a;

nearby receptacle. Also,on these cards are their choices ofwhich horses theyHon. R. Y. Lindsey,Jr., Page 4, (V-1483)

believewill be thewinners in the races to be shown inside the theatre. Persons purchasinga ticket to see the regular movie on 'MovieSweepstakes'night are not given game cards at the time they purchase their tickets,but they must obtain them apart from the ticket office. They may either pick up the cards or not after or before they purchase their tickets, or theymay pick up cardswithout even purchasing tickets.

"It Is understood that the reason for not giving out the forms at the time the patrons purchase a ticket is to eliminate the possibility that the money paid for the ticket also pays In part for the game card. 'MovieSweepstakes' operates by having patrons purchase tickets to see the regular movie and added shorts of which the Movie Sweepstakes is one,without regard to winning money. Then, if a patron desires to be eligible to play the game, he may pick up a game cardwithout giving any consideration. He pays for movie entertainment only and if he does not buy a ticket,he stillmay be able to win a prize, although, of course, he will be excluded fromwatching themovie inside the theatre. The basis upon which this program operates is, that although there Is a prize and a chance involved, it lacks the necessary element of consideration.

. . .'

The Texas courts have defined a lotteryas a scheme for the distribution of prizes by lot or chance among persons who have paid, or who have sgreed to pay, a valuable consideration for the opportunity to win the awards. City ofWink v. GriffithAmusement co., 129 Tex. 40, 100 S.W.2d 695 (1936);54 C.J.S. 843, Lotteries, Sec. 1; 28 Tex. Jur. 409, 410, Lotteries, Sec. 2. Thus, every lottery contains three essential elements as follows: (1)prize; (2) chance; and (3) consideration.

Fact Situation No. I nvolves the question ofwhether the element of chsnci is to be found in the scheme. The same problem was considered inAttorneyHon. R. I'.Lindsey,Jr., Page 5, (V-1483)

General OpinionV-544 (1948). We there held in effect that if the conduct of a contest and the answers given to a set of questionsare dependent primarily upon skill and knowledge rather than upon mere chance,~;.the contest Is lawful. On the other hand, if any controllingportion of a contest calls for and is dependentupon pure guesses or chances, it is a lottery and thereforeunlawful. A determination ofwhether the scheme indicated by your Fact Situation Rob I violates the lottery statutesdepends upon the facts and circumstancesof each contest and may not thereforebe determined abstractly.

In Fact SituationRo. II, however, the problem concerns the presence or absence of the element of consideration. If participation in the game were limited to theater ticket holders, the element of considerationwould clearly be present, but such is not the case here. Non-patrons as well as patrons of the theatermay compete for the awards. Therefore, the question for our determination is whether the distribution of "free" chances removes the element of considerationfrom this plan.

'@Movie Sweepstakes,"as described in your

. request,"ls,

basically similar to thevarious motion picture <theater"RankRite" contestswhich have been consideredby the courts of Texas in a number of different cases. Despite the fact that both patrons and non-patrons of the theaterswere allowed to participate, theseplans were held to be lotteriesalmost without exception. The distribution of "free" chanceswas consideredbut a subterfugewhich would not have the effect of legalizingan otherwise illegal scheme. City of Wink v. GriffithAmusement co., I.29

Tex. 40,'lGO .W'.2d 695 (1936);Cole v. State, 133 Tex. Grim. Robb& Rowley, 48, 112 S.W.2d 725(lgljs);

United v. State, 127 S.W.28 221 (Tex. Civ. App. 19391. State v. Robb & Rowley, United, 1.18 S.W.2d 917 [Tex.Clv.App. 1938). Moreover, a number of other sales promotion enterprise8 Inwhich the participatingmerchants distributed chances for prizes among their customerswere declared lotteries
even thougha number of the chanceswere distributed to non-customers. Featherstonev. Independent Service StationAssociation, 10 S.W.2d 124 (Tex.Clu APP. 1928) See alsoAtt'y Gen. Ops.,O-2843 (1940); V-1420 (1952).Hon. R. Y. Lindsey, Jr., Page 6, (V-1483)

In only one case, Griffith Amusement Co.

den upheld. v. MOP an, 98 S.W.28 844, (Tex.Civ. App. 1936) was This decision.however. was neither cited-nor followed in themore recent cases, and it cannot be considered controllinghere. Neither have the principles enunciated in the “Bank Nits” cases been overturnedby the recent decision in Brice v. State, 242 S.W.2d-433 (Tex.Crim. 1951), which arose out of circumstancesentirelv different from those before us.

It is difficult of course to ascertain from descriptive literaturealone the exact nature of any given scheme. The written descriptionmight differ materially from the manner in which It is actually carried out. stakes” However, in ‘Movie Sweepas described in your request,~it appears that a substantialportion of the chances for prizes
are on the basis of the purchase of theater tickets. This constitutesa valuable considerationmoving from the contestants to the donor of the prizes, and, under the authorities cited above,tbatelement Is not removed by the distribution of a number of “free* chances on request. It is our opinion, therefore, that “Movie Sweepstakea” constitutesa lottery prohibited by Article 654, Vernon’s Penal Code.

SUMMARY

Whether the theatre quiz contestplan known as “Quiz Bank” or “Quiz Show” is a lottery and violatesArticle 654, Vernon’s Penal Code, is a question to be determined upon the facts and circumstancesof each contest and cannot be determined abstractly
as a matter of law. If the conduct of the c.ontest

and the answers to a given set of questions are dependent primarily upon skill and knowledge rather than upon mere chance, the contest is lawful. On the other hand if any controllingportion of the contest calls for and is dependent upon pure guess or chance, it Is a lottery and is thereforeunlawful.

The contest “Movie Sweepstakes,” in which prizes are distributed to motion picture theatre ticketholders, is a lotteryHon. R. Y. Lindsey,Jr., Page 7, (v-1483)

prohibited~

by Article 654, VP,C.., even though some of the chances for awards are distributed to non-patrons of the theatre.

Yours very truly,

PRICE DANIEL ;,ttorney

General

BYCal~vin

B. Gsrwood, Jr. Assistant

APPROVED;

E, Jacobson Reviewing Assistant

Charles D. Mathews First Assistant