January 4, 1968

Hon. Henry Wade DistrictAttorney, Dallas County Dallas County Government Center Dallas, Texas 75202

Dear Sir: Opinion No. M-176
Re: Whether the driving into a service station by a person,who may or may not make a purchase and who is given a free card which is distributed by the station entitling the holder to win a prize, if by chance he thereby becomes a recipientof a similar card, constitutes a consideration for the prize, so as to .be in violation of the lottery statute, Article 654, Vernon's Penal Code.

Your opinion request on the above captioned subject, refers to thememorandum brief attached thereto for a detailed description of the questioned "giveaway"plans used by various oil companies. It is stated in such brief that the plans used by the various companies are substantially the same and the "dinodollars"plan is presented as an example of the other plans used in Texas. This example is as follows: "When a customer comes into a Sinclair

station,he is furnisheda "DinoDollars" card. The bottom half of the card has to be rubbed gently with a coin in order to be read. Each cardwill give a dollar amount alongwith the statement, "DriveWith Care". Any customer or person who gets two cardswhich contain the same dollar amount andwhich complete the other half of the slogan, "AndBuy Sinclair", is paid the face amount shown on the cards. The cards are not distributedat any location other than at Sinclair stations. It is not necessary for the customer tomake a purchase to get a card."

-au-Honorable Henry Wade, page 2, (M-176)

It is settled in this state that three elements are essential to constitutea lotterywithin the purview of Article 654, Vernon's Penal Code, viz:

(1) A prize or prizes. (2) An award or distributionc.'. a prize or prizes by chance, and (3) Payment, either directly or indirectly,by participants of a consideration for the right or privilege of participating. The authoritieshave heretoforebeen cited and reviewed by this office in Attorney General's Opinion C-619 (1966)and it is not necessary to repeat them here. In most schemes or programs of the type here presented, the first two elements of a lottery, are normally present, and theparamount question usuallypresented is the determinationof the third element, i.e.,whether there is payment by the participantsof consideration, either directly or indirectly, for the right or privilege of participating. In view of the languageof the opinion in Brice v. State, 242 S.W.Zd 433 (Tex.Crim.19511, andAttorney General's OpinionM-67, it seems clear that any such program providing that anyone may participatewithout the necessity of a purchase, and given reasonableopportunity to register or otherwisebecome eligible,does not constitute a lottery as that term is defined in Article 654.

Since these cards are availableat each of the participating stationswithout charge, it is our opinion that the reasoning in Brice v. State, supra, applies and that theplans as submitted are not lotteries.
SUMMARY

The "giveaway"plans used by oil companies in distributing free cards from their service stations entitling the holder towin a prize, conducted in accordancewith the facts stated, do not constitute lotterieswithin the purview of Article 654,Vernon's Penal Code. Y,&s very truly,

General of Texas

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HonorableHenry Wade, page 3, (M-176)

Prepared by R. L. (Bob)Lattimore AssistantAttorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman Kerns Taylor, Cokhairman W. V. **GeDPert** Robert O%n Malcolm Quick Larry Craddock STAFF LEGAL ASSISTANT A. J. Carubbi, Jr.

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