THEATTORNEY GENERAL 

OF TEXAS 

Aus- aa, TExAe 

March 29, 1961 

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

District Attorney 

50th Judicial District Re: Whether the "Goodwill Award 

Paducah, Texas Promotion" under the facts 

stated~constitutes a lottery 

violative of Section 47, Article 

III, Constitution of Texas and 

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

The following opinion is rendered pursuant to your request and is 

based upon material submitted setting forth the procedure for operation of 

"Goodwill Award Promotion"- which procedure we quote: 

"B - A week to ten days before the date of the 

first drawing a representative of Goodwill Advertising Co. 

is placed in the stqre to register everyone who comes in 

to it. 

"(a) A desk or table is set up inside the store 

but outside the sales'area. 

"(b) The representative ask!, the store visitor if 

he or she wishes to register - and if so, permits them to do so and explains that there is 

to be a drawing every week and that X amount 

of dollars will be given away on those nights - 

the day and time stated to 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 

advised again - "These drawings are every week, 

starting on day at P.M. The drawing 

will be held%%de,'in front of the store, 

announced over a public address system, both inside and outside the store. If your name is 

called, you shall be declared the winner, if 

your card has been punched and you present it 

within the allotted time. 

(The time allowed is printed on 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 punched for 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 Control Cards - This plan has a unique way of 

control by transcribing names from the master registration sheet 

to alphabetical and numerLca1 control cards which 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 chance on 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 child who does the 

actual drawing. The numbered tab drawn from the drum by &he 

child is compared to the numerical control card which the 

judges have in possession and the,name appearing on that card 

14 declared the winner. 

"It is usual for the store to award small presents to the judges 

and the child as'8 thank you for their services thoughthis is 

not an actual part of the promotion. 

"If a winner on any given night does not appear to collect his 

prize, that amount of money becomes a part of a larger prize 

to be given away the following week. , 

"At the end of the term of the promotion any money not distributed on prior nights will be drawn for until a winner 

does appear -- so that the total aurn agreed upon at the 

start of the plan is disbursed to the registrants. 

Vuring the conversation by the+ster of Cermonies proceeding every drawing it is clearly explained to his listeners 

that et no time is it necessary to bdy anything in the store 

in order to participate in this give away p-tion plan." 

While no Texas Statute attempts to define a lottery, and Legislatures 

of other jurisdictions generally make no attempt to define a Lottery, the 

text material and case law of the overwhelming majority, including our own 

jurisdiction, are uniform in setting forth 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 prizes by chance and, (3) the payment either directly 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.2d 725 

(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 whether or not the third element, "consideration", 

is present. In reaching a conclusion, there are at least two possible approaches: 

(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 valuable consideration. 

While the cases cited above do not describe the necessary consideration, they do seem to negative the posiibility that any consideration which 

would support. a simple contract is sufficient to supply this third and final 

element. On the contrary, the leading case in Texas of Brice vs. State, 

supra, stands for 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 alleged violation being 

the merchant's invitation to the generai public to'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 eligible for the drawing by going to 

the store and writing his name, address, and telephone number on a registration 

card. One could not be a prize winner without so registering at the store; no 

registrant was required to buy anything or be at the store at the time of the 

drawing. Conceding that the elements of prize and chance were shown by the 

facts above the court held: 

"Under the authorities mentioned, we must conclude 

that in the absence of any character of favoritism 

shown to customers, the lottery statute, Art. 654,~.~., 

is not violated under a plan whereby a merchant awards 

a prize or prizes by chance to a registrant without requiring any~registranto be a customer or to purchase 

merchandise or to do other than to register without 

charge at the store, though the donor may receive a 

benefit from the drawing in the way of advertising." 
Mr. A. W. Davis, Page 4 (WW-1030) 

The Austin Court of Civil Appeals 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 element of venture, the chance 

to lose or win something of value is essential... 

"The fact that the holder of the drawing expects 

thereby to receive, or in fact does receive, some benefit in the way of patronage or otherwise, as a result 

of the drawing, does not supply the element of consideration paid by the chance holder for the chance." 

Assuming the facts as outlined above in the procedures for operation 

of Goodwill Award Promotion it seems clear that this promotion is 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 

person may conveniently register and become eligible for an award; the 

transcribing procedure outlined above makes it evident that all registrants 

have an equal chance on &awing night,'no advantages being afforded customers 

of a participating store who may actually make purchases at the store in addition to registering. 

It is our opinion, from the facts as outlined by you, that the necessary element of 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, because of the 

absence of a valuable consideration. 
. . . 

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

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

Maston C. Courtney I/ 

Assistant Attorney General 

MCC:br 

APPROVED: 

OPINION COMMIYTER 

W. V. Geppert, Chairman 

Jerry Roberts 

Dudley McCall8 

John Phillips 

REVIlBEDFORTREATTORK?XGENERAL 

BY: Morgan Nesbitt