## THEATTORNEY GENERAL OF TEXAS

Aus- aa, TExAe

March 29, 1961

Mr. A. W. Davis Opinion No. WW-1030 District

Attorney 50th Judicial

District Re: Whetherthe "Goodwill Award Paducah,

Texas Promotion" under the facts stated~constitutes

a lottery violative

of Section47, Article III, Constitution

of Texas and Dear Mr. Davis: Article 654, Vernon's Penal Code.

The following

opinionis rendered pursuant

to your requestand is based upon materialsubmitted settingforth the procedure for operation

of "Goodwill

Award Promotion"-

which procedure

we quote:

"B - A week to ten days before the date of the first drawinga representative of Goodwill

Advertising

Co. is placed in the stqreto register everyone

who comes in to it.
"(a) A desk or table is set up insidethe store but outsidethe sales'area.
"(b) The representative ask!, the storevisitor if he or she wishes to register- and if so, permits them to do so and explains that there is to be a drawingeveryweek and that X amount of dollars

will be given away on those nights - the day and time statedto the registrant. Registrant

is also told that the drawing is free and that it is not necessary to buy anything to be eligible.
"(c) Upon registering on a master registration sheet, the registrant

is given a qualification card and advisedagain - "Thesedrawings are everyweek, starting

on day at P.M. The drawing will be held%%de,'in front of the store, announced

over a publicaddress system, both inside and outside

the store. If your name is called,

you shall

be declared

the winner, if your card has been punchedand you present it within the allotted time. (The time allowedis printedon the card, as well a8 the time of day, dates,rules of the promotion

and full instructions governing

the game.)Mr. A. W. Davis,Page 2 (WW-1030)

"(d) The qualification card is punchedfor the first drawing

but the registrant Is instructed

that they must get it punched for subsequent weeks~ In order to be eligible for the drawing. A cashier

or a girl at the Courtesy Booth will punch and qualify

the cards.
"(e) One registration is good for all drawings,r:so long as the promotion continues. "Transcribing

to ControlCards - This plan has a uniqueway of control

by transcribing

names from the master registration sheet to alphabetical

and numerLca1

controlcardswhich operate in such a way that one who might register more than once will not have but one number in the drum -- thusly every registrant has an equal chanceon drawing night,,,which

stems from a numbered tab attached

to the alphabetical card, taken from it upon it being used and being placed in a revolving drum. "Drawing

Night - The Master of Cermonies will pick judges from volunteers

in the audience

as well a8 a childwho does the actualdrawing. The numbered tab drawn from the drum by &he child is compared

to the numerical

controlcard which the judges have in possession and the,name

appearing

on that card 14 declared

the winner.

"It is usual for the storeto award smallpresents to the judges and the child as'8 thank you for their services thoughthis is not an actualpart of the promotion.
"If a winner on any given night does not appearto collect his prize,that amount of money becomesa part of a largerprize to be given away the following week.

, "At the end of the term of the promotion any money not distributed

on prior nightswill be drawn for until a winner does appear -- so that the total aurn agreedupon at the startof the plan is disbursed to the registrants. Vuring the conversation by the+ster of Cermoniesproceeding every drawingit is clearlyexplained to his listeners that et no time is it necessary to bdy anythingin the store in order to participate in this give away p-tion plan."
Whileno Texas Statute attempts

to definea lottery, and Legislatures of other jurisdictions generally

make no attemptto definea Lottery, the text material

and case law of the overwhelming majority,

including

our own jurisdiction,

are uniform in settingforth the necessary elements

of a lottery,

namely: (1) A prize or prizes, (2) the award or distribution of. .

Mr. A. W. Davis, Page 3 (WW-1030)

the prize or prizesby chanceand, (3) the paymenteitherdirectly or indirectly

by the participants of a consideration for the right or privilege of participating.

Cole vs. State, 133 Tex. Crim. 548, 112 S.W.2d725 (19381; City of Wink vs. Griffith Amusement

Co., I.29

Tex: 40, 100 S.W.2d 695 (1936); Smith vs. State, 136 Tex. Grim. 611, 127 S.W.2d 297 (1939); Price vs. State, 242 S.W.2dli33 (Tex.Crim. 1951); F.C.C.vs. American Broadcasting

CO., 347 US 284, (1954); 34 Am. Jur. 647 lotteries, Sec. 3.
There can be no doubt that the first two elements,"prize" and "chance",

exist in the procedure for the operation

submitted,

therefore, your inquiry

pertains

to whetheror not the third element, "consideration", is present. In reaching a conclusion,

there are at least two possibleapproaches:
(a) The consideration required

to be paid x be any consideration

that would support

a simple contract,

or (b) The consideration required

to be paid must be a valuableconsideration.
While the cases cited above do not describe the necessaryconsideration,they do seem to negative the posiibility

that any consideration which would support.

a simple contract

is sufficient

to supplythis third and final element. On the contrary, the leading

case in Texas of Brice vs. State, supra, standsfor the proposition that,the

requisite

consideration

must be valuable,

citing with approval,

Griffith

Amusement

Co. vs. Morgan, 95 S.W.2d '884 (civ.

App. 1936). In the Brice case the defendant was charged

by complaint and information

with violations

of Article 654 E.C., the allegedviolation being the merchant's

invitation

to the generai

publicto'coms into his store and register

for a prize to be given away. Anyone could register once each day for a three day period and thus become eligiblefor the drawing by going to the storeand writinghis name, address, and telephone

number on a registration card. One couldnot be a prize winnerwithout so registering at the store;

no registrant

was required

to buy anything

or be at the storeat the time of the drawing. Conceding that the elements

of prize and chance were shownby the facts above the court held:

"Underthe authorities mentioned,

we must conclude that in the absenceof any character of favoritism shown to customers, the lotterystatute, Art. 654,~.~., is not violated

under a plan wherebya merchant awards a prize or prizesby chanceto a registrant withoutrequiringany~registrant o be a customer

or to purchase merchandise

or to do other than to register without chargeat the store,thoughthe donormay receive a benefit from the drawingin the way of advertising."Mr. A. W. Davis, Page 4 (WW-1030)

The Austin Court of CivilAppeals in the case of Griffith Amusement Co., vs. Morgan, supra,held:

"As above stated it is essential to a lottery that something

of value must:

be paid for the chance to win the prize. The elementof venture, the chance to lose or win something of value is essential...
"The fact that the holderof the drawingexpects therebyto receive, or in fact does receive,some benefit in the way of patronage or otherwise,

as a result of the drawing,

does not supplythe elementof consideration

paid by the chance

holder for the chance." Assuming

the facts as outlined above in the procedures for operation of Goodwill

Award Promotionit seems clear that this promotionis identical to that involved

in the Brice case, supra. No person ,is required

to make a purchase

at a participating store to become eligible for an award; any personmay conveniently register

and become eligiblefor an award; the transcribing

procedure

outlined

abovemakes it evidentthat all registrants have an equal chance on &awing night,'no advantages

being affordedcustomers of a participating storewho may actually make purchases

at the store in additionto registering.

It is our opinion,from the facts as outlined by you, that the necessary elementof consideration is absent,

and further,

the Goodwill

Award Promotion

does not constitute a lottery.

It is noted that the Supreme Judicial

Court of Maine in the case of State of Maine vs. Russiere, 154 A.2d 702, (1959) had before it an identical promotion,

namely, "Goodwill

Cash Bight". The Maine Court held:

"In order to constitute a crime under the statute in question,

three elements

must be present,

~$7.: (1) prize, (2) chance, and (3) a consideration having a pecuniary

value paid directly or indirectly

by some participant.Under the facts in this case the third element is not present, and the defendant

cannot be found guilty of the crime charged."

S U M'M A R Y
The Goodwill

Award Promotion

does not constitute a lottery,

under the submitted facts, becauseof the absenceof a valuableconsideration.. . .

Mr. A. W. Davis, Page 5 (WW-1030)

Very truly yours,

WILL WILSON Attorney

Generalof Texas

Maston C. Courtney I/ Assistant

Attorney

General MCC:br

APPROVED:

OPINIONCOMMIYTER W. V. Geppert,

Chairman
Jerry Roberts DudleyMcCall8 John Phillips
REVIlBEDFORTREATTORK?XGENERAL

BY: MorganNesbitt