Gerald C. Mann 

A-n-rORNEY GKNERAL 

Hon. Joe P. Batchltt 

District Attorney 

Opinion No. O-j.500 

Re: 

Brownsville, Texas 

Whether the described prize 

plan c,onstltutes a violation of the 

lottery statutes of Texas 

Dear Sir: 

Your letter of April 30, 19&l., requests the opinion 

of this department upon the question of whether the described 

radio program constitutes a lottery in contravention of the 

statutes of Texas, The plan is described in your letter as 

follows: 

"I submit herein for your ruling the proposition presented,to me by KRGV Radio Station located at Weslaco, 

which concerns the,prqgrsm qf the KreeMee Ice Cream Co., 

of Harllngen. 

"The program is patterned after the Pot O'Gold program. KRGV is to select each day at random from the citizens of the Valley the name of a certain person and at 

the time the selection is made and announcement is made 

a messenger is sent to the home of the citizen with a coupon entitling him to a quart of KreeMee Ice Cream. If 

the citizen has in his or her posses,sion,ten~labels or 

reasonable facsimiles of the Ice cream cartons labels, 

she will receive In addition to the coupon entitling her 

to a quart of Ice cream, $5.00 cash. If he or she has 

less than ten labels or reasonable facsimiles she will 

receive a coupon entitling her to a quart of ice cream 

for each label or reasonable facsimile she has on hand. 

In the event that this citizen is not at home and no one 

is at home, she will receive a quart of Ice cresm but 

will not be eligible to receive any part of the $5.00 

which money will be carried over from day to day.increaslng as in the Pot O'Gold program." 

Section 47 of Article 3 of the Constitution of Texas 

reads as follows: 

"The Legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this 

State, as well as the sale of tickets in lotteries, gift 

enterprises or other evasions involving the lottery 
Hon. Joe P. Hatchltt, page 2 (O-3500) 

principle, established or existing in other States." 

Pursuant thereto the Legislature 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 or personal, by lottery, he shall be 

filed not less than one hundred 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 shall be fined 

not less than ten nor more then fifty dollars.* 

In the concurring opinion of Judge Hawkins of the 

Court of-Criminal Appeals of Texas in Cole v. State, 112 S.W. 

(2d) 725, there appears the following fine analysis of what 

constitutes a lottery under the laws of Texas: 

"There Is not now, nor ever has been an attempt in 

this state to define 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, we must resort to the meaning given the term by popular usage as determined by the 

various courts. When that is done, it is clear that 

three things must concur to establish a thing as a lottery: 

(a) A prize or prizes; (2) 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 ri or privilege 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 scheme has denounced as a 

lottery that the three elements mentioned are shown by 

the facts to have been present. See Randle v. State, 

%6:ex21 

580. Grant v. State, 54 Tex.Cr.R. 403 112 S.W. 

L i R A 876 130 Am.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, 28 Am.Rep. 

and other Texas cases cited in Texas Jur., supra. 

The'same rule demanding the presence 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, it was 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 27 Corpus Jurls at 

page 968, asfollows: 'It Is a game determined entirely or In part by lot or mere luck, and In which 

judgment, practice, skill or adroitness have honestly 

no office at all, or are thwarted by chance; a game 

In which hazard entirely predominates.'" 

Under the facts before us, a prize is given. The 

lucky citizen receives a quart of ice cream and may receive 

$5.00 in cash or 8.n additional quart of ice cre8m for each label 

or reasonable facsimile thereof. 

Likewise, the award or distribution of the prize or 

prizes is by chance. The participant 1s selected "at random 

from the citizens of the Valley." His judgment, practice, experience, or skill enter in not at all. 

And, in our opinion, there exists, also, the payment either directly or Indirectly by the participant of a consideration wherefore the chances of receiving an additional 

prize are enhanced. This inheres in the fact that the participants in the plan, that is, the listening public, are induced 

to purchase the ice cream being advertised in order to be eligible for the $5.00 cash prize by virtue of the possession of 

ten labels, or,reasonable facsimiles, from the ice cream cartons, or, by having less than ten labels, to be eligible to 

receive additional quarts of ice cream. The opportunity of 

receiving the prizes offered is not the same for everybody but 

is enhanced in respect to those who have purchased the product 

being advertised. We do not believe this element of conslderation obviated by the fact that the citizen may have in his possession reasonable facsimiles of the labels, instead of the 

actual labels. This would pay homage to a pO88ibility which is 

In Its nature remote and unlikely. 

In our opinion, for a scheme to be entirely lacking 

in the element of a payment either directly or indirectly by the 

participants of a consideration for the right or privilege of 

participating fully in the prize or prizes given, such prizes 

must be absolutely free. This is not 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, the plan would not, it would appear, 

come within 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 in your letter does constitute a lottery.under the 

Constitution and statutes of the State of Texas. 

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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