THEA~TORNEYGENERAI. 

OF TEXAS 

Au- 11. ‘I-EXAS 

WILL WNLSON 

A-J?X-ORNEYOENERAL thy 26, 1960 

Honorable R. L. Lattlmore WW-840 

Criminal District Attorney . 

Edinburg, Texas Re: Whether Attorney General's 

opinion No. MS-94 is in 

conflicts with or overruled 

by Opitiion No. W-355 

Dear Mr. Lattlmore: relating to lotteries? 

You have asked whether or not this office still considers Opinion 

No. KS-94 to be valid in view of the epprent conflict of this Opinion with 

Opinion No. W-355. Your request further states: 

"We are particularly interested as to whether 

you still consider this opinion governing the legality 

of 'Appreciation Day' or retail trade promotion enterprises CvalldJ. . . . It would be my opinion that 

Opinion Ho. WW-355 1s definitely in conflict with the 

1953 opinion." 

It is the opinion of this office that Attorney General's Opinion 

No. KS-94, rendered on September 25, 1953, is a valid statement of the 

laws of this State. 

MS-94 holds that, where an award ia made each week to some lndividual by the merchants of 8 community, it is not a lottery where the award is 

determined in the following manner: 

"Coupons are distributed freely to all desiring 

them. The first public approach is by the distribution of thousands of printed announcements in the 

trade territory with thousands of theae coupons, all 

free. . . . 

"In addltlon, coupons may be freely had forthe 

asking at the office of the sponeoring organieation 

. . . and in the places of business of the participatLng merhhents. . . . 

"An individual may, in fact, ask for several coupons, 

or for a particular type of coupon and his request 
, , 

Honorable R. L. Iattlmore, Page 2. (WW- 840 ) 

is honored. Said coupon may be of the same 

value or varying values indicated by a percentage 

punched on the coupon. The percentage punched on 

the coupon will be either 5$, 16, 2C$, 30$, 4C$, 

or 50$ entitling the party who has received the 

coupon end written his or her name and address on 

the reverse side thereof to that percentage of the 

fund indicated. 

"A thoroughly mixed quantity of the coupons 

reposes in an open container et the Chamber of 

Commerce office and in an open container in each 

store. A visitor may if he desires ask for a 50$ 

coupon and he will receive it. Or he may merely 

reach into such a container and secure such coupon or coupons es he desires. Visitors are, In 

fact, invited to do this. . . . 

0 

. . . . 

"In addition to the ebove, a coupon is offered to anyone making e purchase in 'any of the 

stores. In these instances the percentage punched, 

on the coupon beers a relation to the total amount 

of the transection, in order that community surveys 

may be made periodically to determine the size, of 

the average unit purchase in e given atore, the 

exact boundaries of the trade territory from which 

e store individually and the business community 

collectively draws its trade, and the amount of 

money spent each month in the town from each of the 

surrounding erees. . . . 

"For the drawings, there is no distinction 

made between coupons distributed freely with the 

announcement folders, coupons distributed freely 

from the sponsor's office, coupons obtained freely 

by being drawn out of customers or non-customers 

from a container in the establishment of a member 

merchant, coupons given freely to the members of 

the audience attending the weekly program, and the 

*survey' coupons issued after purchases. . . l " 

The plan outlined above is legal, if no discrimination in favor 

of the customer arises. If, for example, the non-customer had a hard 

time getting 40$ or 50$ coupons, but the customer could get %urvey" coupons of this type without trouble the plan would then be a lottery since 

the customer is getting something e non-customer caMot acquire. If et 
Honorable R L. Lsttimore, Page 3, (WW- 840) 

any time e premium of any kind is allowed the customer over the non- : 

customer, the element of consideration Is present and there is a lottery. 

Good will and patronage of the persons favored with the coupons 

Is not consideration paid, for the purpose of determining if there is a 

lottery. Brice v. State, 242 S.W.2d 433 (1951). Also see Attorney General's 

Opinion WW-652. 

124 (Tex. 

In Featherstone v. Independent Service StetionAss'n, 10 S.W.!d 

Civ. App. 19281, the court said:, 

'1. . . While dealers, under the new plan, .di.s- ~, 

tributed tickets to non-customers es well as to 

customers, it seems that the scheme was to distribute tickets, in the main, to customers; . . .l( 

The courts will look through any subterfuge which tries to hide 

the element of consideration. 

Insofar es W-355 holds that e consideration is present by virtue 

of good will and patronage, it Is in conflict with the Brice case and the 

implied holding in &S-94, and WW-355, ia overruled to theextent of such conflict. 

SUMMARY 

1. Attorney General's Opinion No. MS-94 

is a valid statement of the laws of 

thie St&e relating to lotteries. 

2. Attorney General's Opinion No. i&i-355 

is overruled insofar as, It finds consideration arising from the good will 

of the participants of the plan. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By: 

wk~+ 

Cecil Cammack, Jr. 

Assistant 

CC:aw 
. . . 

Eonorab+e R. L. Lattimore, Page 4. (W-840) 

APPROVED: 

OPINION COMMITTEE: 

W. V. Gappert,'Chairman 

Msrvin Bmwn 

T'& ihrrus 

Charles D. Cebaniss 

James Parris 

REVIEWED FORTESATTORNEY GENERAL 

BY: 

Leonard Passmore