.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 storevisits, constitute a lottery in violaDear Mr. Moore: tion of the penal code?
Your request for an opinionhasp been received and carefully consideredby this office. We quote your letter as follows:

"A questionhas arisen with respect to whether or not the use by localmerchantsof a 'bonuscard' constitutesa,lottery in violation of the Penal Code. "Theexact type of card to be used is enclosed herein. /Ihisbonuscard bears the name of themerchant and his address and has a serial numberprinted on the back side of same. It is one card, but is.divlded Into two sectionsby 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. "Printedaround 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 personmakes a purchase and the amount of such purchase ispunched 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 $2.00purchase punch. When the purchase record is completelypunched, 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 stampprogram, which I do not question, ,beingin effect a tradediscount 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 completelypunched a specifiednumber of times, and without any purchases beingmade, 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 correctlyby 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 otherkind or character of obligations. At the,time the bonus cards are distributed, there are likewisedistributeddetailed, itemizedand specific instructionsas to how the progrsmoperates and same Is fully explanatory. A copy of such instructions Is~enclosedherewith and a reading of same fully apprises then reader of the operationof~theprogram. In addition to the~bonus cards and instructionsbeing distributed, 'factsheets' that contain the skill questions and answers printed under the seals,aredistributed. A copy of the 'factsheets'used Is enclosedherewith. "Anyoneholding a cardmay obtain from any store employee a free 'weeklyStore visit nunch'. The program does not require anyperson tonu=hase anymerchandise whatsoever In order to particjpate In attempting to answer the skill questionprinted under the seal. "Under the above given set of facts, and aisuming that the users of the cards strictlyadhere 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 receivedby this Department for an opinionbased upon this particular "ProfitSharing Bonus Card". The other request was answered in Opinion No. ~~-843 where'lt was held that the card did constitutea lotteryunder the laws of the State of Texas. The two portions of the card, with the set of Instructionsgiven in that ,factsituatlon, were used together in such a way that the bonus on the "storevisit" portion of the card could probably not be won until the "purchase record"end had been completelypunched out. This officemade it clear in both Opinion No. ~~-843 and in Opinion No. ~~-840 that in any scheme where the customer is ,glvenan advantage over the non-customer,the element of consideration is present.Mr. 0. S. Moore,page 3 (W-930)

We are now calledupon to statewhether the same bonus card constitutesa lotterywhen used with a different set of instructions,pertinentparts of which follow:

1. All bonus cards are dlstrlbuted free and without any requirementof any purchase whatsoever. 2. The bonus card advertisingplan entails two separate,distinct and independentplans for distribution of cash. (1)The purchase discount bonus, and (2)The St%'v%t game of skillprogram. 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 storevisit numbers appearing on the face of the card Ispunched out. No purchases,whatsoever, are required to have the,storevisit punch entered on the'card. When all of the storevisits are punch& out and lrrespective of whether or not any of the -purchaserecords are punched, the seal Is liftedby the store-manageror asslstant store-manager,and the holder of the card is asked the question which is concealedunder 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~paidat all. 5. So far as the questionunder the seal,is concerned, it Is not related to any purchasemade.~ It can be openedwhen the storevisit punches are completed, whether the purchaseshave,beenmade or not, and either before or after the purchases discounthas been paid. The purchase discountwill be paid whether or not the sealhas been opened and independentof the seal, 7. A person, other than the checker, will be deslgnated to punch the free visit record on the cards, and informationsheets will be distributed at a place in the store, clearlymarked and, away from the check-stand.
In answeringyour 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 inviolation of the penal code if the stores and employees adhere strictly to the instruction sheet attached to your letter. Asyou stated, thisportion of the "bonuscard" ismerely a trade discountprivilege and applicable to all customers on an equal basis.,

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

The "weeklystore 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 indirectlyby the particlpants of a considerationfor the right or

‘3%;7: Cole v. State, 133 Tex.Crim.R. 54 , iirivilege of partici112 S.W.2d 725

The first element is certainlypresentwith prizes from $1.00 to $1,000.00. The second element of chance is alsopresent In the "weekly storevisit"portion of the card. Everyone receives a prize, but the amount of the prize isbased upon chance.
It only remains to be determinedwhether the third element was present, that is, the payment of a considerationby theparticipants. We think this questionhas been completely foreclosed by the Court of CriminalAppeals In Brlce vs. State, 156 Tex. Crim.R. 372, 242 S.W.2d 433. We quote from the opinion:

"As shownby 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 telephonenumber on a registrationcard. Some six or eight thousand cards were filled out prior to the drawingheld at the store when the prizes shown In the state's second exhibitwere given away. "One could not be a prize winner without so registeringat the store and, as It was widely advertised,no registrantwas required to buy anything or to be at the store at the time of the drawing.

1) l * *
II. . .it is clear that three thingsmust concur to establish a thing as a lottery: (a)A prize or prizes; (b) the award or distributionof the prize or prizes by chance; (c) the payment either directly or indirectlyby the participants of a consideration for the right or privilege of participating. fl* * * "'Thefact that the holder of the drawing expects therebyto receive, or in fact does receive, some benefitMr. 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 chanceholder for the chance

. . . .I

. The crux of the opinion lies in the third section, or section 'cl,reading as follows: 'thepayment either directly or indirectlyby 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." Ifmerely going to the store, as held In the Brlce case, did not constitute a considerationwe can see no reason for holding that additionalvisits would so so, assuming the customer was required to pay nothing and was not obligated to buy anything. We are ,thereforeof the opinion and so hold that the proposed plan does not constitute a lottery. SUMMARY The "purchaserecord"portion of this bonus card, used with the,instruction sheet attached to this request and.distrlbutedby a grocery, does not constitute a lottery in violation ,ofthe Texas Penal Code; neither does the "storevisit" portion of this same card, distributedby a grocery and used with the instruction sheet attached to this request. Yours very truly,
WILL WIISON AttorneyGeneral 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