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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 inHidalgo 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 tobe 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, andwould presumably be used in future sales solicitations. The ruling decision on this subject in this State isBrice v. State, 242 S.W.211433 (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 apurchase 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 inBrice. 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.

_ _ . *'Distributingprizes by lot or chance toholders of tickets given away isnot carrying on a lottery, although itmay be donewith the view of drawing a large~crowd together in thehope ofprofit from such of them asmay choose tobuy medicines .fromthe distributor, or tickets toperformances given by,him, or topay for seats in the tentwhere theprizes.are selected,Where nopayment for any purpose isnecessary wasa condition of receiving aprize. . . . "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 aplan whereby amerchant awards a prdze orprizes by chance to.a registrant without requiring any registrant.to be a customer or topurchase merchandise or to do other than to register without .charge.at the store, though the donor may receive abenefit from the drawing in theway of advertising. . . . "The 'consideration' in this case which moves from theparties participating in the drawing for theprize, or proses, to appellant is entirely fanciful. -Itisnot sufficiently substantial tobe classed asa reality. If the,people who registered are tobe:construed tohave paid a-consideration bymerely stepping into.the~house -andsigning their names, we.would,find~ourselves .incon-: .flictwith.all~the decisions-of ourcivil courts onquesj tions of contract involving a~consideration. .Itwould ! ~hardlybe necessary,to discuss the.question if,involved i .ina civil-action. .Justwhy we~should use.a different rule tomeasure a~consideration isnot understandably."

SUMMARY Since themerchant does not require.any registrant to'~~be aIcustomer or to purchase merchandise .orto do other than to register v?ithout,c.harge at the store; and, although theholder of the drawing expects to,receive, andmay in fact, receive some ., benefit by way ofpatronage.or otherwise, the element of;consideration is lacking and the give-away program outlined isnot a lottery.

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

Yours very truly,

WAGGONER CARR Attorney General ofTexas

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

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