ATTORNEY GENERAL OF TEXAS GREG ABBOTT

January 17, 2008

Mr. James A. Cox, Jr. Chair, Texas Lottery Commission Post Office Box 16630 Austin, Texas 78761-6630 Dear Mr. Cox: Opinion No. GA-0592 Re: Whetherthe Texas Lottery Commission may operate a raffle-style game (RQ-0602-GA)

You ask whether the Texas Lottery Commission may operate a raffle-style game. You describe such a game in the following terms: Tickets would be sold at licensed lottery retail locations that have access to a computer system that administers play, and plays would be for a specified drawing date. A raffle-style game would differ from the on-line games currently offered by the commission in that there could be no duplicate tickets and in that there would be a limited number oftickets available. These are the features thatmake the game more like a traditional raffle. 1 Article III, section 47(a) ofthe Texas Constitution requires the Legislature to pass laws 

### "prohibiting lotteries andgift enterprises in this State other than those authorized by Subsections (b), (d), and (e) ofthis section." TEX. CONST. art. III, § 47(a) (emphasis added). Subsection (b), approved by the voters in 1980, permits the Legislature to "authorize and regulate bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs."2 

### Id. § 47(b). Subsection (d), adopted in 1989, provides in relevant part: The Legislature by general law may permit charitable raffles conducted by a qualified religious society, qualified volunteer fire

lSeeLetterfrom Mr. James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney General ofTexas, at2 (July 16,2007) (on file withthe Opinion Committee, also available athttp://www.oag.state.tx.us) [hereinafter Request Letter]. 2Subsection (c) ofarticle III, section47, requires the Legislature to include certainprovisions within the statute authorizing bingo games.Mr. James A. Cox, Jr.

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department, qualified voluntary emergency medical service, or qualified nonprofit organizations under the terms and conditions imposed by general law. 

### Id. § 47(d). Finally, subsection (e), approved in 1991, permitsthe Legislatureto "authorizethe State to operate lotteries andmay authorizethe Stateto enterinto acontractwithone ormore legal entities that will operate lotteries on behalfofthe State." 

### Id. § 47(e). In 1993 the Legislature enacted the State Lottery Act, chapter 466 ofthe Government Code, to provide for the operation,ofthe state lottery. 

### See Act ofApr. 28',1993, 73d Leg., R.S., ch. 107, 

### § 4.03,1993 Tex. Gen. Laws 195,205. The same legislative session also established the Texas Lottery Commission to "exercise strict control and close supervision over all activities authorized and conducted inthis state under," 

### inter alia,**the~State** Lottery Act. Act ofMay 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299,1299 (now codified as TEX. GOV'T CODE ANN. 

### § 467.101(a) (Vernon 2004)). In a 2003 opinion, we considered the meaning ofthe term "lottery" for purposes ofarticle III, section 47(a). 

### See Tex. Att'y Gen. Ope No. GA-0103 (2003). In reviewing the historical development of the term, we noted that the Texas Constitution of 1845 and all subsequent constitutions have included a prohibition against lotteries. 

### See ide at 3. We then quoted a Texas Supreme Court case that articulated the three elements necessary to constitute a lottery: "[1] the offering ofaprize, [2] the award ofthe prize by chance, and [3] the giving ofa consideration for an opportunityto winthe prize." 

### Id. (quoting 

### City ofWinkv. GriffithAmusementCo., 100 S.W.2d 695, 701 (Tex. 1936)). We pointed outthatthe courtdeclared that ofthe three, "'chance' is the [element that] constitutes the very basis ofa lottery, and without which [a game] would not be a lottery." 

### Id. (quoting 

### City of Wink, 100 S.W.2d at 701). Attorney General Opinion GA-O 103 then focused uponthe significance oftheterm "lottery" for purposes ofsubsection (e), article III, section47, and concludedthatits meaning for purposes of subsection (e) is much more limited than under subsection (a). 

### See ide at 4. We first described the common understa1!ding of the term "lottery" in 1991, when the amendment was approved by the voters. 

### Id. at 5-6. We then considered the actual ballot language presented to the electorate. 

### Id. at 6. Finally, we reviewed Attorney General Opinion DM-302, a near-contemporaneous administrative construction ofsubsection (e) thathad found thatthe voters who adopted subsection (e) did not thereby intend to permit the operation ofslot machines. 

### Id. at 7. Because video lottery terminals were notwithinthe contemplation ofthose voters who' approved a "state lottery" in 199.1, we concluded that, under subsection (e), the Legislature was not authorized to permit the state to

. operate video lottery terminals as part ofthe state lottery. 

### Id. at 8-9. An analysis ofthe question you pose points to a similar conclusion. As you acknowledge inyour letter, araffle-style game differs from the kind ofgame approved as a "state lottery" in 1991: there would be no duplicate tickets and there would be a limited number oftickets available. 

### See Request Letter, 

### supra note 1, at 2. This lack ofduplicate tickets would mean that ifan individual held the winning ticket, he or she need not fear sharing the prize with one or more other persons. The common understanding ofthe term "state lottery" in 1991 did not embrace the concept ofa "raffle-style" game. A "raffle," in lay terms, is "a means ofraising money by selling 

### numbered

### Mr. James A. Cox, Jr.

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tickets." NEW OXFORD AMERICAN DICTIONARY 1405 (2001) (emphasis added). The concept of "numbered" tickets accords with your explanation that there would be no duplicate tickets. Prizes would therefore never be shared. 3 

### Butamore obvious cluepoints to aYoterintentnotto include "raffle" or"raffle-style" games withinthe meaning of"state lottery" in subsection (e). Only two years earlier, Texas voters had adopted article 

### III, section 47(d) ofthe Texas Constitution, the charitable raffle amendment. The electorate mustbe presumed, therefore, to have been aware ofthe difference betweenthetwo terms. 

### See Mumme 

### v. Mars, 40 S.W.2d 31,35 (Tex. 1931) ("Constitutional provisions, like statutes, are properly to be interpreted in the light ofconditions existing at the time oftheir adoption
...."). Nothing in the legislative history, the common understanding of the two terms, or the ballot proposition that offered subsection (e) indicates that either the Legislature that proposed it, or the Yoters who endorsed it, intended to include a "raffle" or "raffle-style" game within the ambit ofthe term '·'state lottery." Because araffle is notauthorizedby any exceptionto the article

### III, section47(a) prohibition against "lotteries and gift enterprises," we conclude that the Texas Lottery Commission may not operate a "raffle-style" game, as youhave described it, normay itenterinto acontractwith aprivate entity to operate such a game on behalf·ofthe state.

3This accords with the distinction drawn between a lottery and a raffle in Risien v. State, 71 S.W. 974 (Tex. Crim. App. 1903): "Ifit [the scheme described] had been a lottery, unless all the tickets had been sold, and there had been but the one prize, the keeper or exhibitor ofthe lottery may not have disposed ofall the tickets representing the prize, and so he would have retained both the money andthe prize. Buthere, in the raffle, all the tickets were disposed of, and some one was boundto winthe**pri~e.** This, it occurs to us, is another distinction between a raffle and a lottery." Id. at 975-76.

### Mr. James A. Cox, Jr.

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SUMMARY The Texas Lottery Commission may not operate a "rafflestyle" game, nor may it enter into a contract with a private entity to operate such a game on behalfofthe state.

KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee