HonorableJack E. Hightower OpinionNo. WW-843 DistrictAttorney Vernon,Texas Re: Whethera "profit-sharing bonus card" distributed by a groceryconstitutes a lotteryschemeas defln- Dear Mr. Hightower: ed in the Penal Code?
You have asked us whetherthe use of a "BonusCard" as defined below Is in fact a lotteryas that term is definedin the Penal Code of Texas.
The "BonusCard" bears the name of a merchantand his address, and has a serialnumber printedthereon. Printedaround the edge of the card are a seriesof money values rangingfrom 106 to $2.00, fox a total of $100.00. These numbersor money values ere designedto be punched out with a hand punch each time the customermakes a purchaseat the issuingstore. There is also a punch recordat one end of the card to record the number of store visits by the customer. Thirty visitsmay be recorded. On each card i&:seweda small square seal. Under the seal there is printedR bonus amount from lO# to $l,OOO.OO,and a skill question.
The "BonusCard" is given free to each customer. The amount of any purchaseis punchedon the edge. Each Friday the customercan get a free $2.00 punch. One free store-visitpunch is made each week, punching out "1" on the 1st week, "2" on the 2nd week, etc. If a customerdoesn't start her card until the 5th week, "5" Is punched. Bonus store-visit punchesare offeredfrom time to time. The bonus punchesare startedet "30" and work backwardto the actual number of weeks.
When the "PurchaseRecord" is comp&etelypunched,the card will be given to the manager,at which time he will re-explainto the customer how she can receivethe "ExtraBonus up to $l,OOO.OO."She is alreadyen- titledto $1.00 in "SharedProfits".
When the "StoreVisit Record" is completelypunched,the card will be given to the manager,et which time he will break the seal to de- terminethe amount of extra bonus the customercan win. To qualifyfor the Extra Bonus,the customermust be able to answerthe questionsprint- ed under the seal. (A "fact sheet" is providedfree to customerswhich will be give\," to answer any of the questionson the cards.) HonorableJack E. Hightower, Page 2. (WW-843)
The above plan constitutesa lotteryand is a violationof Article 654, Vernon'sTexas Penal Code.
It is well settledthat e lotteryconsistsof three essential elements,namely: (1) a prize or prizes,(2) the award or distribution of the prize or prizes by chance,and (3)the paymenteitherdirectlyor indlrectlvby the uarticioantsof a consideration for the rlaht or ~rivi- lege of p&ticlpating. Cole v. State, 133 Tex. Grim. R. 548;112 SIW.2d 725-730(1937). There can be no disputetbet the first elementis present. The prizes range from $1.00 to $l,OOO.OO.
That there is an elementof chancepresentcannotbe questioned. Althougheveryonereceivessomething,the amountof the prize is based upon chance. The presenceof a "skill"questiondoes not alter the fact that chance is the dominatingelement. AttorneyGeneral'sOpinionNo. v-238. Brice v. State, 156 Tex. Grim. R. 372, 242 S.W.2d 433 (1951), held that there was no consideration passingfrom the participantto the merchantwhere there was no requirementthat any registrant"be a customer or . a , purchasemerchandiseor . . . do other than . . . registerwith- out chargeat the store,though the donor may receivea benefitfrom