.I . 

TEE ATTORNEY GENES 

OF TEXAS 

Auemmv II. TEXAS 

September 9. 1960 

Mr. 0. S. Moore 

District Attorney 

Runt County Courthouse 

Greenville, Texas Opinion No. WW-930 

Re: Does a bonus card distributed 

by a grocery3 which card contains spaces for recording 

the amount of purchases and 

also the number of store visits, 

constitute a lottery in violaDear Mr. Moore: tion of the penal code? 

Your request for an opinion hasp been received and carefully 

considered by this office. We quote your letter as follows: 

"A question has arisen with respect to whether or 

not the use by local merchantsof a 'bonus card' constitutes a,lottery in violation of the Penal Code. 

"The exact type of card to be used is enclosed 

herein. /Ihis bonuscard bears the name of the merchant 

and his address and has a serial number printed on the 

back side of same. It is one card, but is.divlded Into 

two sections by a heavy black line as appears on the 

face of the card. Each of the two sections are separate 

from the other and are independent of the other. The 

right two-thirds of the card Is know&and referred to 

as the ‘weekly store visit recordl. 

"Printed around the edge of the purchase record 

side of the card are a series of'money values ranging 

from lO# to $2.00, totaling $100.00. These money values 

are designed to be punched out with a hand punch each 

time a person makes a purchase and the amount of such 

purchase is punched along the edge of the purchase 

record side of the card. On a designated day each .week, 

the holder of the card can obtain a free $2.00 purchase 

punch. When the purchase record is completely punched, 

a flat $1.00 is given to the holder of the card. ThlS 

amount does not vary and is guaranteed. The purchase 

record section of the card is similar to the trading 

stamp program, which I do not question, ,being in effect 

a trade discount privilege and applicable to all customers on an equal basis. 
0. s. Moore, page 2 (W-930) 

"The left portion of the card, the weekly store 

visit record, applies to anyone. Upon the weekly store 

visit record being completely punched a specified number 

of times, and without any purchases being made, required 

or requested, the seal appearing on the left section of 

the card Is opened by a store employee and If the skill 

question is answered correctly by the card holder, the 

amount of money printed under the seal Is paid. 

"The cards are distributed to the public free of 

charge and without any obligation, requisite or requirement of purchases or any other kind or character of 

obligations. At the,time the bonus cards are distributed, 

there are likewise distributed detailed, itemized and 

specific instructions as to how the progrsmoperates and 

same Is fully explanatory. A copy of such instructions 

Is ~enclosed herewith and a reading of same fully apprises 

then reader of the operation of~the program. In addition 

to the~bonus cards and instructions being distributed, 

'fact sheets' that contain the skill questions and answers 

printed under the seals,are distributed. A copy of the 

'fact sheets' used Is enclosed herewith. 

"Anyone holding a card may obtain from any store 

employee a free 'weekly Store visit nunch'. The program 

does not require any person tonu=hase any merchandise 

whatsoever In order to particjpate In attempting to 

answer the skill question printed under the seal. 

"Under the above given set of facts, and aisuming 

that the users of the cards strictly adhere to same, 

please advise whether the use of the bonus cards as above 

outlined constitutes a lottery in violation of the Penal 

Code of the State of Texas.!' 

This Is the second request received by this Department for 

an opinion based upon this particular "Profit Sharing Bonus Card". 

The other request was answered in Opinion No. ~~-843 where'lt 

was held that the card did constitute a lottery under the laws 

of the State of Texas. The two portions of the card, with the 

set of Instructions given in that ,factsituatlon, were used 

together in such a way that the bonus on the "store visit" portion of the card could probably not be won until the "purchase 

record" end had been completely punched out. This office made 

it clear in both Opinion No. ~~-843 and in Opinion No. ~~-840 

that in any scheme where the customer is ,glven an advantage over 

the non-customer, the element of consideration is present. 
Mr. 0. S. Moore, page 3 (W-930) 

We are now called upon to state whether the same bonus 

card constitutes a lottery when used with a different set of 

instructions, pertinent parts of which follow: 

1. All bonus cards are dlstrlbuted free and without 

any requirement of any purchase whatsoever. 

2. The bonus card advertising plan entails two 

separate, distinct and independent plans for distribution 

of cash. (1) The purchase discount bonus, and 

(2) The St%'v%t game of skill program. 

4. The store visit program is separate, distinct 

and independent of the purchase discount bonus program. 

Every week the holder of a ticket visits the store, one 

of the store visit numbers appearing on the face of the 

card Is punched out. No purchases, whatsoever, are required to have the,store visit punch entered on the'card. 

When all of the store visits are punch& out and lrrespective of whether or not any of the -purchase records are 

punched, the seal Is lifted by the store-manager or asslstant store-manager, and the holder of the card is asked 

the question which is concealed under the seal. If the 

holder answers the question correctly, then the Jndlcated 

bonus is paid to the holder. If the holder is unable to 

correctly answer, no bonus is ~paid at all. 

5. So far as the question under the seal,is concerned, it Is not related to any purchase made.~ It can 

be opened when the storevisit punches are completed, 

whether the purchases have,been made or not, and either 

before or after the purchases discount has been paid. 

The purchase discount will be paid whether or not the 

seal has been opened and independent of the seal, 

7. A person, other than the checker, will be deslgnated to punch the free visit record on the cards, and 

information sheets will be distributed at a place in the 

store, clearly marked and, away from the check-stand. 

In answering your question, we will take the two portions 

of the card and examine them separately. There seems to be 

little doubt but that the purchase record side of the card Is 

not a lottery in violation of the penal code if the stores and 

employees adhere strictly to the instruction sheet attached to 

your letter. As you stated, this portion of the "bonus card" 

is merely a trade discount privilege and applicable to all customers on an equal basis. 
, 

Mr. 0. S. Moore, page 4 (W&930) 

The "weekly store visit" end of the card will now be discussed. It is well settled that a lottery consists of three 

essential elements, 'namely: (1) A prize or prizes, (2) the 

award or distribution of the prize or prizes by chance, and 

(3) the payment either directly or indirectly by the particlpants of a consideration for the right or 

‘3%;7: 

Cole v. State, 133 Tex.Crim.R. 54 ii , 

rivilege of partici112 S.W.2d 725 

The first element is certainly present with prizes from 

$1.00 to $1,000.00. 

The second element of chance is also present In the "weekly 

store visit" portion of the card. Everyone receives a prize, 

but the amount of the prize is based upon chance. 

It only remains to be determined whether the third element 

was present, that is, the payment of a consideration by the participants. We think this question has been completely foreclosed 

by the Court of Criminal Appeals In Brlce vs. State, 156 Tex. 

Crim.R. 372, 242 S.W.2d 433. We quote from the opinion: 

"As shown by the exhibits and~the testimony, 

anyone could register once each day for the three day 

period and thus become eligible for the drawing by 

going~to the mezzanine floor and writing their name, 

address and telephone number on a registration card. 

Some six or eight thousand cards were filled out prior 

to the drawing held at the store when the prizes shown 

In the state's second exhibit were given away. 

"One could not be a prize winner without so 

registering at the store and, as It was widely advertised, no registrant was required to buy anything or 

to be at the store at the time of the drawing. 

1 ) l * * 

II 

. . . it is clear that three things must concur 

to establish a thing as a lottery: (a) A prize or 

prizes; (b) the award or distribution of the prize or 

prizes by chance; (c) the payment either directly or 

indirectly by the participants of a consideration for 

the right or privilege of participating. 

fl* * * 

"'The fact that the holder of the drawing expects 

thereby to receive, or in fact does receive, some benefit 
Mr. 0. S. Moore, page 5 (W-930) 

in the way of patronage or otherwise, as a result of the 

drawing, does not supply,the element of consideration 

paid by the chance holder for the chance . . . .I 

. The crux of the opinion lies in the third 

section, or section 'cl, reading as follows: 'the payment 

either directly or indirectly by the participants of a 

consideration for the right or privilege of participating.' 

"The 'consideration' in this case which moves from 

the parties participating in the drawing for the prize, 

or prizes, to appellant is entirely fanciful. It is not 

sufficiently substantial to be classed as a reality." 

If merely going to the store, as held In the Brlce case, 

did not constitute a consideration we can see no reason for 

holding that additional visits would so so, assuming the customer was required to pay nothing and was not obligated to buy 

anything. We are ,therefore of the opinion and so hold that 

the proposed plan does not constitute a lottery. 

SUMMARY 

The "purchase record" portion of this bonus card, 

used with the,instruction sheet attached to this request and.distrlbuted by a grocery, does not constitute 

a lottery in violation ,of the Texas Penal Code; neither 

does the "store visit" portion of this same card, 

distributed by a grocery and used with the instruction 

sheet attached to this request. 

Yours very truly, 

WILL WIISON 

Attorney General of Texas 

By: 

Assistant 

RZVIEWED FOR THE ATTORNEY 

GENERAL BY: 

Houghton Brownlee 

wRs:vj 

APPROVED: 

OPINION Ctii.X'iTEE 

W. V. Geppert, Chairman 

Marvin Thom:,L: 

C. K. Richcrds 

John Reeves 

Ben Harrison