September 30, 1969 

konorable Oscar B. McInnis 

Criminal District Attorney 

)ridalgO County Courthouse 

Idinburg, Texas 

Dear Mt. McInnis: 

Opinion NoIYj481 

Re: Whether under certain 

stated facts a so-called 

bingo game conducted over 

cable TV constitutes a 

lottery? 

You have requested an opinion from this office concerning 

Ihe following facts: 

"A Cable Television Company operating in this 

area proposes to conduct a Bingo Game on their 

Cable Television System. The Cable Television Company sells service to subscribers much like the 

-. 

telephone company 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 

Television Company. The charge is $3.00 or $4.00 

per month to each subscriber for the service. 

"The proposed game would be on the order of a 

Bingo game, with cards to be furnished to anyone 

who wished to play without charge and without the 

obligation to make any purchase. The sponsor would 

see to it that Bingo cards were available at various 

outlets to anyone interested in playing. The scheme 

would probably be advertised locally in the newspapers, radio, and perhaps the other television 

stations, as well as the Cable Television channel. 

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Honorable Oscar B. McInnis, page 2 (M-481) 

Bingo games would be played two or three nights a 

week and there would be five games. As the numbers 

for each game were called, as soon as a winner had 

properly filled in his card he wou,ld call the local 

number for the Cable Television Company, and, after 

a-spot verification by tele@one, a new game would 

be started until all five games had been played. 

It would later be 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 

issued by the sponsor. A prize of money or merchandise would be given to each winner. 

"In order to.find out what numbers were being 

called, it would 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 the winner 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 

numbers being called would be eligible to win." .^ 

In State v. Socony Mobil Oil Company. Inc., 386 S.W.Zd 16% 

(Tex.Civ.App. 1964, error ref. n.r.e.) the court set forth the 

three elements of a lottery. At page 112, the court said: 

"Thus we 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 prizes by 

chance: (3) the payment either directly or indirectly 

by the participants of 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, 

156 Tex. Crim. 372, 242 S.W.2d 433, 435 (1951), had before it 

a scheme wherein merchants awarded~a prize or prizes by 

chance to registrants at a store, and registrants were 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 authorities mentioned, 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 

registrant without requiring any registrant to be a 

customer or to purchase merchandise or to do other 

than to register withoutcharge at the store, though 

the donor may receive a benefit from the drawing in 

the way of advertising." 

On Motion For Rehearing, ,the Court further held: 

. 

"The 'consideration' in this case which moves from 

the parties participatinq in,the drawinq for the 

prize, or prizes, to arjpellant is entirely fanciful. 

It is not sufficiently substantial to be classed 

as a reality." (Emphasis added.) 

See also American Broadcastinq Cases, 347 U.S. 284, 98 

__- .-_- _. L.Ed. 699 (19541. 

From the facts you relate, no subterfuge is shown, as 

existed and found in Cole v. State, 133 Tex. Crim. 548, 112 

S.W. 725. The mere fact that cable TV subscribers are in a 

more favorable position to win at the game does not constitute a subterfuge. Likewise, the mere fact that the 

donor may 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's contract is the payment of a fee merely to 

watch and listen. Under the instant plan a person must complete 

his bingo card, either by 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 subscriber in 

order to win. It is our view that any consideration, other :?,. 

advertising, involved in the foregoing procedure would 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 sponsored bingo on television, with the first party 

calling in with 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 similar prrre 

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 aforementioned plan of the cable television 

company does not constitute a lottery within 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. 

Prepared by Malcolm L. Quick 

Assistant Attorney General 

General of Texas 

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Honorable Oscar 8. McInnis, page 5 (M-481) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Cha~irman 

w. 0. Shultz 

Alfred Walker 

Harold Kennedy 

Bill Allen 

Richard Chote 

MEADE F. GRIFFIN 

Staff Legal Assistant 

BAWTEORNE PHILLIPS 

Executive Assistant 

NON WHITE 

First Assistant : 

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