Hon. James k. Barlow . . opinion NO. c-108 

Criminal Dletrlct Attorney 

Bexar County Courthouse Re: 

San Antonio 5, Texas 

Whether the playing of 

bingo on television conDear Sir: 

stitutes a lottery and 

related question. 

You have requested an opinion of this office on the following questiona: 

(1) ‘!I would ,llke to know whether in your 

opinion, in view of the authorities briefed above, 

whether you are of the opinion that the promotion 

described in the facta portion of thie request 

constitutes a lottery under the lottery law.” 

(2) “I would like to know whether In your 

opinion, in view of the authorities briefed above, 

whether the promotion herein described constitutes 

a ‘gift enterprlae’ or ‘evasion 1nvol:ving: the lottery 

principle’ violating the public policy of this 

State and flubject to Injunction at the request of 

the State. 

The following information- was submitted with the opinion 

request: 

“Cards of the normal bingo type will be 

distributed by merchants or other advertisers ae 

well as by the TV station. The cards ~~111 change 

In color from time to time and the game must be 

played on a current card., The cards will be 

given by themerohant to the player and will coat 

the player nothing except the time and effort 

to pick them up. It is implied that the merchant 

will pay for the time of the.:atation land the prdzee 

and will pay the promoter for the use of the plan. 

which is protected by copy-right. The exact details 

of the financial arrangements have not been disclosed. 

The cards are not to.be connected with the sale 

“of merchandise and ~‘111 be free to the player at 

the merchant’s place of bualness. 
.A ‘. ,’ 

Hon. James E. Barlow, page 2 (,c-108) 

,. 

“At a set time, bingo numbers will be selected 

by the announcer on television in full vlew of the 

audience, and the first party to call In with the 

bingo numbers covered (It will be black-out or 

cover-all bingo) wlll win a prize of $25.00. Ottfers 

will receive merchandise certificates as prizes. 

‘ Article 3, Section 47 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 enterprlaes or other evasions involving the lottery prlnctple, established or 

existing in other states. 

Our courts have held that, In order to establish a thing 

as a lottery, three things must concur: (1) a prize or 

prizes; (2) the award or distribution of the priselor prizes 

by chance; (3) the payments either dlrectIy.or Indirectly by 

the participants of a consideration for the right or privFJ 

~~~~~o~~A~~~~:~~~~‘“~~ S:W;2ds;24 (Tex.Clv.App.dtt28); 

rvice 

@ebb & Rowley ted. Inc at 127 S.‘W,2d 221 (Tex. 

civ.App. 1939); Brice v.’ State, 15?Tex.Crlm. 372, 242 

s;w.hl 433. 

Under the set of facts presented, unquestionably, two 

.o~f the elements, prize and chance, are present. The question 

for our determination la whether or not the element‘of consideration is present under the plan submitted. By Attorney 

General Opinions ~~-652 and WW-1421, copies .of which are 

attached, it was our opinion in similar fact situations that 

the element of consideration was not present. We have reconsidered these opinion8 and reaffirm them. 

Therefore, the answer to your first question IS answered 

in the negative. 

‘. In ‘determining the meaning of “gift enterprises” as that 

term le’uaed~.ln Section 47 of Br6lcle III of the %onetltutl!on 

It Is necessary to ascertain the meaning of such term. at the 

time of the adoption of such section of the Constitution. 

er’s Ins..Co. v. MarahalL 124 Tex. 45, 76 S.W.Ed 1007 

Especially helpful In ietermlnlng the meaning 6f the 

&ii enterprise” ia~lts relation to former statutes. 

., 

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. . i’ -535- 

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<Xi. 
Hon. James E, Barlow, page 3 (C-108) .'~' 

Only two years prior to the adoption of Article III, 

Section 47 of the Texas Constitution, supra, the Legislature 

enacted a statute providing for.the licensing of "gift 

enterprises". 

: 7708 - 

Paschals' Digest of the Laws of Texas,, Section 

"Gift enterprise" was defined therein as follows: 

'For every gift enterprise, $500. Every 

person, firm or corporation who shall sell anything with a promises either expressed or Implied, 

and give anything In consideration of such aale 

-and purchase> shall b$ regarded as the proprietor 

of a gift enterprise. 

.., 

There appears to be no sale with a promise, either expressed 

or Implied, accompanied wlth'~the giving of anything In consideration of a sale and purchase under the facts given. Conae: 

quently, it appears that the playing of bingo, under the,,facts 

stated does not fit the deflnltlon of a "gift enterprise + 

No cases were found which expressed in any degree of 

clarity what 'other evasions Involving the lottery~prlnclple" 

.constltute. The courts have struck down various schemes, but 

:always on the basis of being a lottery, The lottery principle, 

as stated,above, has three essential elements: prize; chance, 

and consideration. It would appear, therefore, that to be an 

evasion Involving the lottery pr+nclple the same essential 

elements would have to be present,. Here, again, we do not have 

the essential element of consideration and so It is our 

opinion that the plan in question Is not an evasion Involving 

the lottery principle. 

SUMMARY 

Under the facts presented the playing of bingo on 

televlson is not a lottery or an evasion Involving the 

lottery principle as the element of consideration 1s not 

Nor does the playing of blngo.on television 

~~~$n&e facts given fall within the definition of a 

"gift enterprise . 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

-1rwln R. Salmanson 

Assistant Attorney..General 

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Hon. James E. Barlow, page 4 (c-108) 

1RS:cjp 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

J. S. Bracewell 

Murray Jordon 

Robert Lewis 

Malcolm Quick 

APPROVED FOR THE ATTORNEY GENERAL 

By: Stanton Stone 

-537-