Gerald C. Mann

A-n-rORNEYGKNERAL

Hon. Joe P. Batchltt District Attorney Opinion No. O-j.500 Re: Brownsville, Texas Whether the described prize plan c,onstltutesaviolation of the lottery statutes of Texas

Dear Sir:

Your letter of April 30, 19&l.,requests theopinion of this department upon the question ofwhether the described radio program constitutes a lottery in contravention of the statutes of Texas, The plan is described inyour letter as follows:

"I submit herein foryour ruling theproposition presented,to me by KRGV Radio Station located atWeslaco, which concerns the,prqgrsm qf theKreeMee IceCream Co., of Harllngen.

"Theprogram ispatterned after the Pot O'Gold program. KRGV is to select each day at random from the citizens of theValley thename of a certain person and at the time the selection ismade and announcement ismade
amessenger is sent to thehome of the citizen with a coupon entitling him to a quart of KreeMee Ice Cream. If the citizen has inhis orher posses,sion,ten~labelsor reasonable facsimiles of the Ice cream cartons labels, shewill receive In addition to the coupon entitling her to a quart of Ice cream, $5.00 cash. Ifhe or shehas less than ten labels or reasonable facsimiles shewill receive a coupon entitling her to a quart of ice cream for each label or reasonable facsimile shehas onhand. In the event that this citizen isnot athome andno one is athome, shewill receive a quart of Ice cresm but will not be eligible to receive anypart of the $5.00 which money will be carried over from day to day.increaslng as in the Pot O'Gold program."
Section 47of Article 3of the Constitution of Texas reads as follows:

"TheLegislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this State, aswell as the sale of tickets in lotteries, gift enterprises or other evasions involving the lotteryHon. Joe P. Hatchltt, page 2 (O-3500)

principle, established or existing in other States."

Pursuant thereto theLegislature enacted Article 6.54 of the Penal Code of Texas which reads as follows:

"If any person shall establish a lottery or dispose of any-estate, real orpersonal, by lottery, he shall be filed not less than onehundred nor more than one thousand dollars; or if any person shall sell, offer for sale or keep for sale any ticket in any lottery, he shallbe fined not less than tennor more then fifty dollars.*

In the concurring opinion of Judge Hawkins of the Court of-Criminal Appeals of Texas in Colev. State, 112 S.W. (2d) 725, there appears the following fine analysis ofwhat constitutes a lottery under the laws of Texas:

"There Isnot now, nor everhas been an attempt in this state todefine by statute what constitutesa lottery. The term is defined by the statutes of only a few of the states. Corpur Juris, vol. 38, p* 288, note 10, lists only four, but says 'that such definitions seldom vary in substance from those-established by the courts.' Having
no definition in our statute, wemust resort to themeaning given the termby popular usage as determined by the various courts. When that is done, it is clear that three thingsmust concur to establish a thing as a lottery: (a) Aprize or prizes; (2) the award or distribution of the prize or prizes by chance; (c) thepayment either directly or indirectly by the participants of a consideration for the ri orprivilege of participating. Texas Jur. vol. 2 409, j2,deduces from our own cases the &ile stated, and it appears that in every case from our own court where a schemehas denounced as a lottery that the three elements mentioned are shownby the facts tohave been present. SeeRandle v. State,

%6:ex21 580. Grant v. State, 54Tex.Cr.R. 403 112 S.W.

L iRA 876 130Am.St.Rep. 897, 16 Ann.&as. 8$+; k;~d~~~~~t vs: State, 41 Tex.Cr.R. 358, f$S.W. 850; Holoman v. State, 2 Tex.App. 610, 28Am.Rep. andother Texas cases cited in Texas Jur., supra. The'same rule demanding thepresence of the three elements named will be found stated In 17 Ruling Case Law, p. 1222, and 38 Corpus Juris, p* 286,with innumerable supporting cases cited under the text in each of said volumes."

In Boatwright v. State, 118 Tex.Crlm.Rep. 381, 38 S.W.(2d) 87, itwas said:Hon. Joe P. Hatchitt, page 3 (o-3500)

"Any scheme for the distribution of prize8 by chance, under our statute, is a lottery. Queen v. State; 93 Tex.Cr.A. 173 246 S.W. 384; Stanger v. State, 107 Tex.Cr.R. 574, 298 S.W. 906. The phrase 'game of chance' Is defined In 27Corpus Jurls at page 968, asfollows: 'It Is a game determined entirely or Inpart by lot ormere luck, and Inwhich judgment, practice, skill or adroitness have honestly
no office at all, or are thwarted by chance; a game Inwhich hazard entirely predominates.'"

Under the facts before us, aprize is given. The lucky citizen receives a quart of ice cream andmay receive $5.00 in cash or 8.nadditional quart of ice cre8m for each label
or reasonable facsimile thereof.

Likewise, the award or distribution of theprize or prizes isby chance. The participant 1s selected "atrandom from the citizens of theValley." His judgment, practice, experience, or skill enter innot at all.

And, inour opinion, there exists, also, thepayment either directly or Indirectly by theparticipant of a consideration wherefore the chances of receiving an additional prize are enhanced. This inheres in the fact that theparticipants in theplan, that is, the listening public, are induced topurchase the ice cream being advertised in order tobe eligible for the $5.00 cashprize by virtue of thepossession of ten labels, or,reasonable facsimiles, from the ice cream cartons, or, byhaving less than ten labels, tobe eligible to receive additional quarts of ice cream. The opportunity of receiving theprizes offered isnot the same for everybody but is enhanced in respect to those who have purchased theproduct being advertised. We donot believe this element of conslderation obviated by the fact that the citizenmay have inhis possession reasonable facsimiles of the labels, instead of the actual labels. This would pay homage to apO88ibility which is In Itsnature remote andunlikely.

In our opinion, for a scheme tobe entirely lacking in the element of apayment either directly or indirectly by the participants of a consideration for the right or privilege of participating fully in theprize or prizes given, suchprizes must be absolutely free. This isnot true in the facts before U5.

If the quart of ice cream only were given, or addltional prizes irrespective of and unconnected with the purchase of the product advertised, theplan would not, itwould appear, comewithin the condemnation of the law. But this question is not before us.Hon. Joe P. Hatchitt, page 4 (O-3500)

You are therefore respectfully advised that it is the opinion of this department that the radio program described inyour letter does constitute a lottery.under the Constitution and statutes of the State ofTexas.

Yours very truly

ATTORNEY GENERAL OF TEXAS
By /s/ Zollle C. Steakley Zollie C. Steakley, Assistant

APPROVED: MAY 20, 194-1 /s/ Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL
,&PROVED: OPINION COMMITTEE BY: Bws, CHAIRMAN
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