**OFFICE** OF **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

HonorableTom Seay county Attorney potter county hmarillo, Texarr Dear sir;

ue hare oarefull sented in your Utter **or** the oplnlon of this depar q?ree cash Gift AWardr aa you attatrhed

to your letter to be praotloedby a violationor nrtfole

r *et enry psrson in 

### this oity ding territory 8ay know mr0 **ore and**  more **about tha**  complete that we carry at the Very and so that you may visit our 8torb

pressriptlan

**department** and make the acquaintance or our tine **staff** or employees,and that we may **meet** you an& know pU personallyand be able to serve you bettor,W have adopted sn advertisingplan mbereb a rrubetantial cash award will be made **to** the pub io amry r day except Sundan and legal **holidays.**HonorableTom Seay, page 2

"The rules of this plan are aa follows:-- 1. Every person who pePtlclpatea must rin out one only permanentregistrationoard #iving his true name and oorreot address. iotitlousnames will not be aonaidered and there uelng them will not be allowed to partisipate. Thie registration **oerd** makes a person eliglblsbut euch person must sign the daily register 'book **every** day in order to qualify for that day*8 oash gift **award.** 2. It is not necessary for the publio to make a purahase in order to partiolpate. 3. Cash gift awards till be made at 3lSO P.M. every day (Sunday6 and holidays excepted).
**4.** Inrormutlonrelative**to** the **awards** will be posted in our windona and atore. 5. It la not neoessary ror partlolpantsto be present at the time of the drawing to reoeire the oash gift awards. 6. **Every** day some dlsintereated personwill draw a number stub rrom the box, suoh numbersd **atub** being the rlnnin~ **number ior**  **that** day. 7. In the **event** that the name ot the pereon holdfag~the

winning number does not appear on the daily register,$1.00 will be added every day until the girt award ti made to some person In the communitywhoee name appears on the dailyregister. 8. III ease of any dispute, the merohant's**de** cielon ehall be final. 9; Store emplopaes,their ramllfesand relatives, are not eligibleto partialpeteor receive the oaah gift awards. 10. IF YOU HAYE NOT XQX.STEf#D,PLEASE DO SO AT OlJCE

. "HonorableTom &my, pa@ 3

Your letter further #tates:
"It Is oontendedthat suoh sohome does not constitutea lottery,beoauee there Is no consideration

**lnvolvod and**  that ohsnose are rreslp and openly given **to** all **persons** deslrlug same,without regard to whether a purohaae la made from the mrsrohanta partlolpatlng

or not. We believe It to be the generalrule that ln order **to** oonstltutea lottary tbre must be three element@present, to-wit, (1) oonslderatlon,(2) @heme, **and (3)**  

### prize,end that all three such elementamust be pre6ent.

. . .- We believethat OplnlonHo. O-2063, a6 previously given by this 

### offloeto Honorable **Prsd** T. pertu, County httorneg or murmn **county,** is dlrsotly In point ror the oaaa you have at **hand.** Ne at%ach hereto a oopy or that opinion

. AS you will observe,this -Box orrlee fnouranoe* was obtainablefrom the 

### motionpioture theatre by a mere act or registration, without requlslteattendanoeat the theatre

. Also, the winner of tha award did not have to bo present at the.

theatre,but hl6 n&me as wlmer wa6 **posted** In the lobby, and he oould colleot thr money at any time wlthln thirty days; or upon hi8 tallure to presenthlmarli to receive the money, the said 6um would be given to the rarent teachers@aoolatlon.

OpinionHo. O-2063 aekmwledges the readily **ap** parent qualitieeof ohanoe ***nd** pFlxe, and 

### demt6s ltaelt ehlerly to the questionof oonalderatlon. In this respectt the eases of Cole va. Stats, 112 8. **W.** (2d) 725, $tate ~8. Robb and Rowley united, Ino., 118 s. w. 917, and Featherstone vs. Independent Servlae Station Assooiatlon,10 S. **Wh** (2d) 124, are eitedaa lnetanoes wherein the oourte hate held that the oonslderatlon Involved althoughto a de@ee lntaaglble

was nevertheless

effeatlve, and that the **absonee** of an aatual requiredpurohase or other lnveatmenton the part or the would-bereolplrntor the prize,was not aUtriolent to relievethe praotlce in question of the etigaae Or 0onki.n~ under the olasslrleatlon 

## or a lottery.Honorable Tots Seay, patie

4

In view of the authoritleeolted ln opinionMO. O-2063, and the parallelclroumatances whioh these oases have to the casewhich you present,you are respectfully advised that it is the opinion of this departmentthat the scheme describedby you and upon which ion does constitute a lottery in vlolat 1: ou request an oplnon or mtiole 654 of the yenal Code of this State. Very truly yours