Hon. R. L. Lattimore Opinion No. C-50

Criminal DistrictAttorney Hidalgo County Re: Wheth$r "LuckyCar Edinburg, Texas Night > a give away program, constitutes
a lotteryunder the Dear Sir: stated facts.

You have requested an opinion of this office on the following questions:

1. "Whether 'LuckyCar Night', a give away program $onstitutes a lotteryunder the stated facts.

2. "Whetherthe answer would be different If the theatre, through some method of general circulation, freely distributedthe registration cards to parked cars in the towns in $he area being servedby the theatre?

The followingInformation was submittedwith the opinion request:

"Everynight of the week the registration cards are available at the Box Office out side the theater and also at the Snack Bar Inside the theater on request of anyone, not under 18years of age, whodrives a car to the theater. When a car is entering the theater, a registrationcard is given to the driver when the theater ticket is purchased. There is no limitation on the number of times anyonedriving a car may register, (theircar) and additional registration cards are given at any time upon request. Followingthe drawing each Tuesday night the card drawn, winner or not, is placed on thebulletin board on the SnackBar, and a copy of such card is displayed at the Box Office. Each

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Tuesday the sign in front of the theater, in addition to advertising the two features showingthat night, also has the words 'LuckyCar Night'. Anyone desiring to registerwithout paying admission and entering the theatermay drive to the Box Office, located outside the theater, request a card, fill it out and return it to the Box Office. The drawing is conducted each Tuesday night inside the theater and the winning car is announced through loud speakersat the Box Office and the Snack Bar." (wordsin parentheses not part of quote)

On the reverse side of the registration card is an explanationof the procedure followedby the Drive-In.

"How ItWorks

"1. Winning car will be announced at a drawlng through loud speakersat the snackbar and box office of the BUCKHORN DRIVE-IN THEATER at 8:45 P.M. every TUESDAY, to be eligible to receive the award, Ifyour car is announced as a winner,you must present your car to the outsidebox office or inside snackbar within 5 minutes after your car has been announced.

"2. If the award is not claimed within the specified time, it will be carried over to the followingweek and $10.00or more will be added weekly until a qualifiedwinner appears. If the award reaches $500.00a second will be started and 2 or more names announced.

"3. The success of thisplan depends upon freeparticipation therefore, registration,qualificatiofl

and awards are absolutely free.
Article III, Section 47 of the Constitutionof Texasprovides:

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"TheLegislature shallpass laws prohibiting the establishment of lotteriesand gift enterprises in this State, as well as the sale of tickets in lotteries,gift enterprises or other evasions involving the lottery principle, estabiishedor existing in other States.

Pursuant to this constitutional command, the Legislature passed Article 654 of the Penal Code, which reads
as follows:

"Ifany person shall establish a

lottery ordispose of any estate, real
or personal,by lottery,he shall be fined not less than one hundred nor more than one thousanddollars; or if any person shall sell,offer for sale or keep for saleany tickets or part ticket in any lottery,he shallbe fined not less,,than

ten nor more than fifty dollars.

In 2% Texas Jurisprudence,409, we find the following definition of a lottery:

"Theterm lotteryhas no technical signification in the law and since our statute does not provide a definition, its meaning must be determined frompopular usage. According to that test a lottery is a scheme for the distribution of prizes by lot or chanceamong those who have paid or agreed to pay a consideration for the right to participatetherein, for the distribtulon itself." (Emphasisadded).

Under the set of factspresented unquestionably two of the elements,prize and chance, are present. The question for our determinationis, therefore, whether or not the element of considerationis present under the plan submitted.

Various "BankNite" schemes conducted by motion picture theaters,have been consideredby the Texas courts and almost without exceptionthese plans have been held to be lotteries,despite the fact that both patrons and nonpatrons of the theaterswere allowed to participate. The distrlbtion of "free"chanceswas held by the courts to be

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a subterfuge,which would not have the effect of legalizing
an otherwise illegal scheme. City of Wink v. Griffith Amusement Co 112 S.W:$?d725 ?Tex.Crim. 193%); Rob2

129 T x. 40, 100 S.W 2d 69, 18;: ; Cole v. State,
State, 127 S.W.&l 221 (TexCiv.App.I:-_,, v. U lted, State vn v. 919); Rowley, United, 1.18S.W.2d 917 (Tex.Civ.1 ;Robb & RPp.i-9781. City of Wink v. Griffith, supra,was a "bank night"case, and persons were allowed to register for the drawing withoutbuying a theater ticket. Judge Cureton, speaking for the Court said in part:

"Theactual money returns on 'bank nightIwould suggest that if any free numberswere ever distributed. thev were negligible. Wed ather from thewhzle testimons that t e

i! so-called 'freenumber' featurewas largely one~~that existed in the minds of those who operated the theater, and that It was never made a real activepart of the 'banknight' plan. True, no doubt if anyonehad applied for a free registrationto the drawing, it would have been given,but human nature is such that the average person would seldom, if at all, suffer the natural embarrassmentof asking for a free registration. Indeed, If this
were not so, the income from 'bank nights' would not have been sustantially more than that whichhad obtained prior to the operation of theplan. In fact, the whole plan Is built up and made profitablebecause no normal person likes to 'bum'his neighbor for something, thepsycholog and by an appeal to

some take a aalns by a invented and formulated the plan may not have been 'learnedin the law,'but their knowledge of mass-psychologywas not wanting.

Human nature is such that a person is not likely to drive out to the Buckhorn Drive-In Theater,get In a line of cars entering the theater, ask at the Box Office for a free card or cards, and then drive away while the patrons
are buying tickets, obtaining their registrationcards and entering the theater. It Is true that under the plan, the registrationcards are freeupon request,but unless requested
no registrationcard is given or offered to anyone unless they purchase a ticket to the show.

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Certainly the patron Is favored over the nonpatron since a registration card Is given to the patron freely upon buying a theater ticket. However, the nonpatron must go to the box office and request a registration card and suffer the embarrassment that naturally follows when he sayshe is not buying a ticket to the show. See Brice v. State, 252 S.W.2d 433 (Tex.Crim.1951).

Also, the patron Is favored over the non-patron since the winnerneeds to be present within five minutes after the drawing to collect the prize. This would, of course, almost eliminate anyone except a patron from winning. In State v. Robb & Rowley, supra, the Court said on motion for rehearing:

"All that was required of one desiring to participate in a drawing, was to have his name entered on the register. But ifhis name was drawn, he had to presenthimself within 3 minutes in the showhouse. This was a strongmotive, and
was intended as such, to make one who desired to participate,pay for admission and be present on the night of a drawing. If the one whose name was drawn was not required to present himself in the showhouseuntil the night succeedingthe drawing in order to become available to receive the award, the motive to purchase a ticket of admission would be greatly weakened. We construe the opinion in the Cole case to hold, what we conceived to be a motive, to be indirect consideration,and further to hold that Indirect consideration is consideration, and that there was thereforepresent in the transaction the essential element of consideration to make of it a lottery."

It is evident from the Texas cases that the lottery statute cannot be circumventedby a mere subterfugeor evasion of the lottery lawsby offering a few "free chances'
or making it practically impossible for a "freechance' to win. Featherstonev. Independent Service Station Association 10 S.W.2d 124 (Tex.Civ.App.192%).

It is our opinion that Lucky Car Night is a lottery and, further, that a scheme of generaldistribution of the registration cards would not make a difference.

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Even lookingpast the embarrassing feature of having non-patronsgo up to the box office and ask for a registration card,which would be eliminatedwith a general distribution of the registration cards, the requirementof having thewlnner appear within five minutes wouldhave the practical effect of limiting the winner to a patron of the theater.

SUMMARY

A plan which would have thepractical effect of limiting the winners topatrons of the theaterby requiring the winner to presenthis car within five minutes at the snackbar or box office is a lottery.

Yours very truly,

WAGGONER CARR Attorney General of Texas

Irwin R. Salmanson Assistant AttorneyGeneral
1RS:cjs

APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Howard Fender Samuel S. Pharr Malcolm Quick Ernest Fortenberry

APPROVED FOR THE ATTORNEYGENERAL
m: Stanton Stone

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