January 4, 1968 

Hon. Henry Wade 

District Attorney, 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 

recipient of 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 the memorandum brief attached thereto for a detailed description of the questioned "give away" 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 "dino dollars" 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 furnished a "Dino Dollars" card. 

The bottom half of the card has to be rubbed 

gently with a coin in order to be read. Each 

card will give a dollar amount along with the 

statement, "Drive With Care". Any customer 

or person who gets two cards which contain 

the same dollar amount and which complete 

the other half of the slogan, "And Buy Sinclair", 

is paid the face amount shown on the cards. 

The cards are not distributed at any location 

other than at Sinclair stations. It is not 

necessary for the customer to make 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 constitute a lottery within the purview of 

Article 654, Vernon's Penal Code, viz: 

(1) A prize or prizes. 

(2) An award or distribution c.'. aprize or prizes 

by chance, and 

(3) Payment, either directly or indirectly, by 

participants of a consideration for the right 

or privilege of participating. 

The authorities have heretofore been 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 the paramount question 

usually presented is the determination of the third element, 

i.e., whether there is payment by the participants of consideration, 

either directly or indirectly, for the right or privilege of 

participating. In view of the language of the opinion in 

Brice v. State, 242 S.W.Zd 433 (Tex.Crim. 19511, and Attorney 

General's Opinion M-67, it seems clear that any such program 

providing that anyone may participate without the necessity 

of a purchase, and given reasonable opportunity to register 

or otherwise become eligible, does not constitute a lottery 

as that term is defined in Article 654. 

Since these cards are available at each of the participating 

stations without charge, it is our opinion that the reasoning 

in Brice v. State, supra, applies and that the plans as submitted are not lotteries. 

SUMMARY 

The "give away" plans used by oil companies 

in distributing free cards from their service 

stations entitling the holder to win a prize, 

conducted in accordance with the facts stated, 

do not constitute lotteries within the purview 

of Article 654, Vernon's Penal Code. 

Y,&s very truly, 

General of Texas 

-848- 
’ 

1 

Honorable Henry Wade, page 3, (M-176) 

Prepared by R. L. (Bob) Lattimore 

Assistant Attorney 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. 

-849-