Hon. Jamesk. Barlow

.. opinion NO.c-108

Criminal Dletrlct Attorney Bexar County Courthouse **Re:** SanAntonio 5, Texas Whether the playing of bingo on television conDear Sir: stitutes a lottery and related question. Youhave requested an opinion of this office on the following questiona:

(1) ‘!I would ,llke to knowwhether 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 knowwhether 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. Thefollowing 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 TVstation. Thecards ~~111change In color from time to time and the gamemust be played on a current card., The cards will be given by themerohant to the player andwill coat the player nothing except the time and effort to 

### pickthemup. 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. Theexact details of the financial arrangements have not been disclosed. Thecards are not to.be connected with the sale

“of merchandise and
~‘111be free to the player at the merchant’s place of bualness..A ‘

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Hon. JamesE. 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, aswell as the sale of tickets In lotteries, gift enterprlaes or other evasions involving the lottery prlnctple, established or existing in other states. Ourcourts 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 paymentseither 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. Thequestion for our determination la whether or not the element‘of consideration is present under the plan submitted. ByAttorney General Opinions ~~-652 andWW-1421,copies .of which are attached, it was our opinion in similar fact situations that the element of consideration wasnot present. Wehave reconsidered these opinion8 and reaffirm them. Therefore, the answer to your first question IS answered in the negative.

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. **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, 

### 76S.W.Ed 1007 Especially helpful In ietermlnlng the meaning 6f the &ii enterprise” ia~lts relation to former statutes.

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**<Xi.**Hon. JamesE, Barlow, page 

### 3 (C-108) .'~'

Only twoyears prior to the adoption of Article III, Section 

### 47of the Texas Constitution, supra, the Legislature enacted a statute providing for.the licensing of "gift enterprises". :

### 7708 - Paschals' Digest of the Lawsof Texas,, Section "Gift enterprise" wasdefined therein as follows: 'For every gift enterprise, $500. Every person, firm or corporation whoshall sell anything with a promises either expressed or Implied, and give anything In consideration of such aale -and purchase> shall b$ 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 + Nocases were found which expressed in anydegree of clarity what 'other evasions Involving the lottery~prlnclple" .constltute. The courts have struck downvarious schemes, but :always on the basis of being a lottery, The lottery principle, as stated,above, has three essential elements: prize; chance, andconsideration. It would appear, therefore, that to be an evasion Involving the lottery pr+nclple the sameessential elements would have to be present,. Here, again, wedo 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 -536-^_

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Hon. JamesE. Barlow, page 4 (c-108)
1RS:cjp APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman J. S. Bracewell MurrayJordon Robert Lewis Malcolm Quick APPROVED

FORTHEATTORNEY

GENERAL By: Stanton Stone



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