September 30, 1969

konorableOscar B. McInnis CriminalDistrictAttorney )ridalgO County Courthouse Idinburg,Texas

DearMt. McInnis: Opinion NoIYj481
Re: Whether under certain stated facts a so-called bingo game conducted over cable TV constitutesa lottery?

You have requested an opinion from this office concerning Ihefollowingfacts:

"A Cable Television Company operating in this areaproposes to conduct a Bingo Game on their CableTelevision System. The Cable Television Company sells service to subscribers much like the

-. telephonecompany and included are the channels for the two local stations, the three Corpus Christi stations,three Monterrey, Mexico stations, a local

. time and temperature channel and local channel for

movies and other studio presentations of the Cable TelevisionCompany. The charge is $3.00 or $4.00 permonth to each subscriber for the service. "Theproposed game would be on the order of a Bingogame, with cards to be furnished to anyone whowished to play without charge and without the obligationto make any purchase. The sponsorwould see to it that Bingo cards were available at various outlets to anyone interested in playing. The scheme wouldprobablybe advertised locally in the newspapers,radio, and perhaps the other television stations,as well as the Cable Television channel.

- 9347 -Honorable Oscar B. McInnis, page 2 (M-481)
Bingo games would be played two or three nights a week and therewould be five games. As the numbers for each game were called, as soon as a winner had properly filled inhis card he wou,ldcall the local number for the Cable Television Company, and, after a-spotverificationby tele@one, a new game would be started until all five games had been played. It would laterbe necessary for the winner tp bring his card to the Cable Television Company office to verify that he did have a card that was properly issuedby the sponsor. A prize of money or merchandise would be given to each winner.
"In order to.find out what numbers were being called, itwould be necessary for the viewer to watch on a television set which was connected to the Cable Television System. It would not be necessary for thewinner tq be a subscriber to the Cable Television System or a member. of his family. Anyone who had one of the cards and had knowledge of the numbersbeing calledwould be eligible to win."

.^ In State v. Socony Mobil Oil Company. Inc., 386 S.W.Zd16% (Tex.Civ.App.1964, error ref. n.r.e.) the court set forththe three elements of a lottery. At page 112, the court said:

"Thuswe see that a lottery is composed of three.elements,to-wit: (1)a prize or prizes: (2) the award or distribution of the prize or prizesby chance: (3)the payment either directly or indirectly by the participantsof a consideration for the right or privilege of participating."~
It is clear that two of.the three elements of a lottery. d prize or prizes and the awarding thereof by chance, are presC:.'- in the Bingo Game as outlined in your letter. we will, therefore, focus our attention on whether or not the element of consideration is present.

- 2298 -Bonorable Oscar B. McInnis, page 3 (~-481)

The Texas Court of Criminal Appeals, in Brice v. State, 156Tex. Crim. 372, 242 S.W.2d 433, 435 (1951),had before it a schemewherein merchants awarded~a prize or prizes by chance to registrantsat a store, and registrantswere not required to purchase anything but merely to register in the drawing. Th.e

merchant thereby received the benefits of advertising. The Court said:

"Under the authoritiesmentioned, we must conclude that in the absence of any character of favoritism shown to customers, the lottery statute, Art. 654. P-C., is not violated under a plan whereby a merchant awards a prize or prizes by chance to a registrantwithout requiring any registrant to be a customer or to purchasemerchandise or to do other than to registerwithoutcharge at the store, though the donor may receive a benefit from the drawing in the way of advertising."
On Motion For Rehearing, ,theCourt further held:

. "The 'consideration'in this case which moves from the parties participatinq in,the drawinq for the prize, or prizes, to arjpellantis entirely fanciful. It is not sufficiently substantial to be classed as a reality." (Emphasisadded.) See also American Broadcastinq Cases, 347 U.S. 284, 98 __- .-_-

_. L.Ed. 699 (19541. From the facts you relate, no subterfuge is shown, as existedand found in Cole v. State, 133 Tex. Crim. 548, 112 S.W. 725. The mere fact that cable TV subscribers are in a more favorableposition to win at the game does not constitutea subterfuge. Likewise, the mere fact that the donormay receive a benefit in the way of advertising does not constitute consideration for purposes of a lottery in the State of Texas. The only consideration apparent in the TV cable subscriber'scontract is the payment of a fee merely to watch and listen. Under the instantplan a person must complete hisbingo card, eitherby watching a television set connected

-2299-Honorable Oscar B. McInnis, page 4 (M-481) ‘,

to the cable system or obtaining information from some other person who has such a.television connection. No payment for any purpose is necessary as a condition to receiving a prize. and there is no requirement that a person be a subscriberin order to win. It is our view that any consideration, other :?,. advertising, involved in the foregoing procedurewould be "fanciful"or inconsequential,and not fall within the terms of Article 654,Vernon's Penal Code. In Attorney General's Opinion No. C-108 (1963),it was held that a scheme whereby merchants sponsoredbingo on television,with the firstparty calling inwith a "bingo"winning a prize, was not a lottery, the element of considerationbeing absent therefrom. In support of this opinion is cited Attorney General's Opinions:;-s, bers HIV-652(1959)and WW-1421 (1962). involving similarprrre winning schemes over TV in which the element of consideration was not present.
You are therefore advised that it is the opinion of this office that the aforementionedplan of the cable television company does not constitute a lotterywithin the terms of Article 654. SUMMARY

Under the stated facts, a cable television company which sponsors a bingo type game over its facilities is not engaged in a lottery in violation of Article 654,Vernon's Penal Code.

Preparedby Malcolm L. Quick Assistant Attorney General General of Texas



### -2300-HonorableOscar 8. McInnis, page 5 (M-481)

APPROVED: OPINIONCOMMITTEE
KernsTaylor, Chairman GeorgeKelton,Vice-Cha~irman

w. 0. Shultz AlfredWalker HaroldKennedy BillAllen RichardChote
MEADEF. GRIFFIN StaffLegalAssistant BAWTEORNEPHILLIPS ExecutiveAssistant
NON WHITE FirstAssistant :



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