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: Whether the 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 that make

the game more like a traditional raffle. 1

Article III, section 47(a) of the Texas Constitution requires the Legislature to pass laws

"prohibiting lotteries and gift 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

lSee Letter from Mr. James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney

General ofTexas, at 2 (July 16,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)

[hereinafter Request Letter].

2Subsection (c) ofarticle III, section 47, requires the Legislature to include certain provisions within the statute

authorizing bingo games.
Mr. James A. Cox, Jr. - Page 2 (GA-0592)

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 Legislature to "authorize the State

to operate lotteries and may authorize the State to enter into a contract with one or more legal entities

that will operate lotteries on behalf ofthe State." Id. § 47(e). In 1993 the Legislature enacted the

State Lottery Act, chapter 466 of the Government Code, to provide for the operation ,of the 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 in this 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 of article

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 of a prize, [2] the award ofthe prize by chance, and [3] the giving ofa consideration for an

opportunity to win the prize." Id. (quoting City ofWinkv. Griffith AmusementCo., 100 S.W.2d 695,

701 (Tex. 1936)). We pointed out that the court declared that ofthe three, "'chance' is the [element

that] constitutes the very basis of a lottery, and without which [a game] would not be a lottery." Id.

(quoting City ofWink, 100 S.W.2d at 701).

Attorney General Opinion GA-O103 then focused upon the significance ofthe term "lottery"

for purposes ofsubsection (e), article III, section 47, and concluded that its 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) that had found that the voters who adopted subsection

(e) did not thereby intend to permit the operation ofslot machines. Id. at 7. Because video lottery

terminals were not within the 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

in your letter, a raffle-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 of duplicate tickets would mean that if an individual

held the winning ticket, he or she need not fear sharing the prize with one or more other persons.

The common understanding of the term "state lottery" in 1991 did not embrace the concept of a

"raffle-style" game. A "raffle," in lay terms, is "a means of raising money by selling numbered
Mr. James A. Cox, Jr. - Page 3 (GA-0592)

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

But a more obvious clue pointsto a Yoterintent not to include "raffle" or "raffle-style" games

within the 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 must be presumed, therefore, to have been aware ofthe difference between the two 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 of conditions existing at the time of their 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 a raffle is not authorized by any exception to the article III, section 47(a) prohibition

against "lotteries and gift enterprises," we conclude that the Texas Lottery Commission may not

operate a "raffle-style" game, as you have described it, nor may it enter into a contract with a private

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 of all the tickets representing the

prize, and so he would have retained both the money and the prize. But here, in the raffle, all the tickets were disposed

of, and some one was bound to win the 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. - Page 4 (GA-0592)

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 behalf ofthe 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