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A-,Ysm ~~&.z.?.lc”*& March 18, 1964 

I , 

/ .~i Mr. R. L. Lattimore Opinion No. C-228 

Criminal District Attorney 

Ridalgo County Courthouse Rex 'Whether the give-away 

Edinburg, Texas program of certain merchants 

in Hidalgo County, Texas, under 

the facts stated, constitute a 

Dear Mr. Lattimore: lottery. 

BY letter dated March 6, 1964, youhave requested an opinion 

from this office as to whether a give-away program now being 

conducted by certain merchants in your county, using registration blanks which require certain information in addition 

to name and address to be filled in so that the entrants may 

be eligible for the drawing, constitutes a lottery. 

The additional information required in the registration blanks 

relates to the age and make of certain of their appliances and 

what type of appliance they plan to purchase in the future, 

and would presumably be used in future sales solicitations. 

The ruling decision on this subject in this State is Brice v. 

State, 242 S.W.211 433 (Tex.Crim.App. 1951). In this case the 

give-away scheme required that anyone could register merely 

by going to the meszanine,floor and writing his name, address, 

and telephone number on a card, that one could not win a prize 

without so registering, and that no registrant was required to 

make a purchase or to be at the store at the time of the drawing. The Court held that this scheme did not constitute a 

lottery since the element of consideration was lacking. 

Although the fact situation you have outlined to us is somewhat different, we nevertheless feel it to be governed by the 

holding in Brice. It is true, that, in addition to name, address! and telephone number, the registrant must furnish further information, presumably so that salesmen may contact each 

of the registrants at some future time to attempt to sell them 

some merchandise: but this further element fails to constitute 

a consideration. 

In Brice, the Court stated: 

"The fact that the holder of the drawing expects 

thereby to receive, or in fact does receive, some benefit in the way of patronage or otherwise, as a result 

-1106- 
Mr:R..L..Lattimore, Page,2 (Opinion-No. C-228 ) 

of the drawing, does not SUpply the element of 

consideration paidby the chance holder for the 

chance. _ _ . 

*'Distributing prizes by lot or chance to holders 

of tickets given away is not carrying on a lottery, 

although it may be done with the view of drawing a 

large~crowd together in the hope of profit from such 

of them as may choose to buy medicines .from the distributor, or tickets to performances given by,him, or 

to pay for seats in the tent where the prizes.are selected, Where no payment for any purpose is necessary 

was a condition of receiving a prize. . . . 

"Under the authorities mentioned, we must conclude.that in the,absence of any character of favoritism shown to customers, the lottery.statute, Art. 654,~ 

'P.C., is not violated under a plan whereby a merchant 

awards a prdze or prizes by chance to.a registrant without requiring any registrant.to be a customer or to purchase merchandise or to do other than to register without 

.charge.at the store, though the donor may receive a benefit from the drawing in the way of advertising. . . . 

"The 'consideration' in this case which moves from 

the parties participating in the drawing for the prize, 

or proses, to appellant is entirely fanciful. -It is not 

sufficiently substantial to be classed asa reality. If 

the,people who registered are to be:construed to have 

paid a-consideration by merely stepping into.the ~house 

-and signing their names, we.would, find~ourselves .in con-: 

.flict with.all~the decisions-of ourcivil courts on quesj 

tions of contract involving a~consideration. .It would ! 

~hardly be necessary,to discuss the.question if,involved i 

.in a civil-action. .Just why we~should use.a different 

rule to measure a ~consideration is not understandably." 

SUMMARY 

Since the merchant does not require.any registrant 

to'~~be aIcustomer or to purchase merchandise .or to 

do other than to register v?ithout,c.harge at the 

store; and, although the holder of the drawing expects to,receive, and may in fact, receive some ., 

benefit by way of patronage.or otherwise, the element of;consideration is lacking and the give-away 

program outlined is not a lottery. 

-1107- 
Mr. R. L. Lattimore, Page 3 (Opinion No. C-228 ) 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

BY 

CHARLES B. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chaiknan 

Al10 B. Crow 

Wayne Rodgers 

W. ~0. Shultz 

Gordon Cass 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Howard W. May6 

-1108-