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

Criminal District Attorney 

Hidalgo County Re: Wheth$r "Lucky Car 

Edinburg, Texas Night > a give away 

program, constitutes 

a lottery under the 

Dear Sir: stated facts. 

You have requested an opinion of this office on 

the following questions: 

1. "Whether 'Lucky Car Night', a give 

away program $onstitutes a lottery under the 

stated facts. 

2. "Whether the answer would be 

different If the theatre, through some 

method of general circulation, freely 

distributed the registration cards to 

parked cars in the towns in $he area 

being served by the theatre? 

The following Information was submitted with the 

opinion request: 

"Every night 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 18 years of 

age, who drives a car to the theater. 

When a car is entering the theater, a 

registration card is given to the driver 

when the theater ticket is purchased. 

There is no limitation on the number of 

times anyone driving a car may register, 

(their car) and additional registration 

cards are given at any time upon request. 

Following the drawing each Tuesday night 

the card drawn, winner or not, is 

placed on the bulletin board on the 

Snack Bar, and a copy of such card is 

displayed at the Box Office. Each 

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Hon. R. L. Lattimore, page 2 (C-50 1 

Tuesday the sign in front of the 

theater, in addition to advertising 

the two features showing that night, 

also has the words 'Lucky Car Night'. 

Anyone desiring to register without 

paying admission and entering the 

theater may 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 speakers at the Box Office and the 

Snack Bar." (words in parentheses 

not part of quote) 

On the reverse side of the registration card is an 

explanation of the procedure followed by the Drive-In. 

"How It Works 

"1. Winning car will be announced 

at a drawlng through loud speakers at 

the snack bar and box office of the 

BUCKHORN DRIVE-IN THEATER at 8:45 P.M. 

every TUESDAY, to be eligible to 

receive the award, If your car is 

announced as a winner, you must present 

your car to the outside box office or 

inside snack bar 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 following week 

and $10.00 or more will be added 

weekly until a qualified winner appears. 

If the award reaches $500.00 a second 

will be started and 2 or more names 

announced. 

"3. The success of this plan 

depends upon free participation 

therefore, registration, qualificatiofl and awards are absolutely 

free. 

Article III, Section 47 of the Constitution of 

Texas provides: 

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Hon. R. L. Lattimore, page 3 (C-50 ) 

"The Legislature shall pass laws 

prohibiting the establishment of 

lotteries and gift enterprises in this 

State, as well as the sale of tickets 

in lotteries, gift enterprises or 

other evasions involving the lottery 

principle, estabiished or existing 

in other States. 

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

as follows: 

"If any person shall establish a 

lottery or dispose of any estate, real 

or personal, by lottery, he shall be 

fined not less than one hundred nor more 

than one thousand dollars; or if any 

person shall sell, offer for sale or 

keep for sale any tickets or part 

ticket in any lottery, he shall be fined 

not less,,than ten nor more than fifty 

dollars. 

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

"The term lottery has no technical signification in the law and since our statute 

does not provide a definition, its meaning must be determined from popular usage. 

According to that test a lottery is a 

scheme for the distribution of prizes by 

lot or chance among those who have paid or 

agreed to pay a consideration for the 

right to participate therein, for the 

distribtulon itself." (Emphasis added). 

Under the set of facts presented unquestionably 

two of the elements, prize and chance, are present. The 

question for our determination is, therefore, whether or 

not the element of consideration is present under the plan 

submitted. 

Various "Bank Nite" schemes conducted by motion 

picture theaters, have been considered by the Texas courts 

and almost without exception these plans have been held to 

be lotteries, despite the fact that both patrons and nonpatrons of the theaters were allowed to participate. The 

distrlbtion of "free" chances was held by the courts to be 

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Hon. R. L. Lattimore, page 4 (c-50 1 

a subterfuge, which would not have the effect of legalizing 

an otherwise illegal scheme. City of Wink v. Griffith Amusement Co 

112 S.W:$?d 725 ?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, 1.18 S.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 without buying a theater ticket. Judge Cureton, 

speaking for the Court said in part: 

"The actual money returns on 'bank 

night I would suggest that if any free 

numbers were ever distributed. thev were 

negligible. Wed ather from the whzle 

testimons that t i! eso-called 'free number' 

feature was largely one~~that existed in 

the minds of those who operated the 

theater, and that It was never made a 

real active part of the 'bank night' 

plan. True, no doubt if anyone had 

applied for a free registration to the 

drawing, it would have been given, but 

human nature is such that the average 

person would seldom, if at all, suffer 

the natural embarrassment of asking for 

a free registration. Indeed, If this 

were not so, the income from 'bank 

nights' would not have been sustantially 

more than that which had obtained 

prior to the operation of the plan. In 

fact, the whole plan Is built up and 

made profitable because no normal 

person likes to 'bum' his neighbor 

for something, 

the psycholog 

and by an appeal to 

some take a 

aalns by a 

invented and formulated the plan may 

not have been 'learned in the law,' but 

their knowledge of mass-psychology was 

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 registration cards and 

entering the theater. It Is true that under the plan, the 

registration cards are free upon request, but unless requested 

no registration card is given or offered to anyone unless 

they purchase a ticket to the show. 

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Hon. R. L. LattimOre, Page 5 (c-50 ) 

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 says he 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 winner needs 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 if his name was drawn, he had to 

present himself within 3 minutes in the 

showhouse. This was a strong motive, 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 showhouse until the night 

succeeding the 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 therefore present 

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 circumvented by a mere subterfuge or 

evasion of the lottery laws by offering a few "free chances' 

or making it practically impossible for a "free chance' to 

win. Featherstone v. 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 general distribution 

of the registration cards would not make a difference. 

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Hon. R. L. Lattimore, Page 6 (C-50 ) 

Even looking past the embarrassing feature of 

having non-patrons go up to the box office and ask for a 

registration card, which would be eliminated with a general 

distribution of the registration cards, the requirement of 

having thewlnner appear within five minutes would have the 

practical effect of limiting the winner to a patron of the 

theater. 

SUMMARY 

A plan which would have the practical 

effect of limiting the winners to patrons of 

the theater by requiring the winner to 

present his car within five minutes at the 

snack bar or box office is a lottery. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

Irwin R. Salmanson 

Assistant Attorney General 

1RS:cjs 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Howard Fender 

Samuel S. Pharr 

Malcolm Quick 

Ernest Fortenberry 

APPROVED FOR THE ATTORNEY GENERAL 

m: Stanton Stone 

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