HonorableGeorge E. Gilkerson opinionno. WW- 652 DistrictAttorney LubbockCounty Courthouse Re: Whether a proposed game Lubbock,Texas known as "Orbit"would coa- stitutea violationof the lotterylaws, Article 654, Vernon'sPenal Code.
Dear Sir:
You have requestedan Opinionas to whether a gsme called "Orbit" would be a violationof Article654 of Vernon'sTexas Penal Code. The game "Orbit"as describedIn your requestand in the advertisingmaterialswhich you forwardedis similarto the well-knowngame of "Bingo"=d the game of ~."Play'Marko"as discussedin AttorneyGeneralOpiuiouWWwW-222.
Players play "Orbit"througha local televisionprogram for prizes, The cards carry advertisingand are made availableat participating stores. There is no obligationto buy any goods in order to be given a card and direct mailing to.homesin a trading radius of each of the participating stiores will be made. Each week three games of "Orbit"are played and one game of "Space" is played. "Space" is like "Orbit",but only people who have wotiat "Orbit"are eligibleto play.
The only basic differencebetween "Orbit"aud "Play Warko'~is that "Orbit".cards are mailed within the trade radius while "Play Marko" cards were ouly availableat the participatingstores. Attorney General Opinion WW-222 held that "Play Marko" was a lottery.
It is well settledthat a~'lottery consistsof three essential elements,namely: (1) a prize or prizes; (2) the award or distributionof the prize or prizes by chance,and (3) the payment either directlyor indi- rectly by the participantsof a considerationfor the right or privilegeof ~~a$ipating. Cole v. State, I.33 Tex. Grim. R. 548, 112 S.W.2d 725-730
It Is clear that the essentialelementsof "prize"and "chance" are present;the questionraised here is whether there was payment of consi- deration..There is M "skill"questionasked of winners as ih "Play Warko".
In Brice v. State, 156 Tex. Grim. R. 372, 242 S.W.2d 433 (1951), the Court of CriminalAppeals stated: .
HonorableGeorge E. Gilkerson,Page 2. (WV- 652)
"Underthe authoritiesmentioned,we must conclude that in the absenceof any characterof favoritism shown to customers,the lotterystatute,Art. 654, P.C., is.not violatedunder a plan wh&rebya merchantawards a prize or prizesby chance to a registrantwithout re- quiringany registrantto be a customeror to purchase merchandiseor to do other than to registerwithout charge at the store,though the donor may receivea benefitfrom the drawingin the way of advertising."
Followingthis view, there is no considerationpassing from the .participants and, therefore,there is no lottery in the present case. The facts in the present case are even less like a lotterythan the facts in the Brice case because in the presentcase the participantneed not go to the store to pick up the "Orbit"card. See also Attorney General Opinions v-167, S-49 and MS-94.
This opinionoverrulesAttorneyGeneralOpinionsWE-222 and O-2286 Insofaras they conflictwith the holdingof this opinion.'
SUMMARY
The game "Orbit"is not a lottery in violationof Article 654, Vernon's Penal Code, because it does not in- volve all the elementsof a lottery, namely: (1) gettinga prize, (2) based on chance,and (3) the pay- ment of a considerationfor pertici- pation in the game, becausethe ele- ment of considerationis lacking.
Very truly yours,
' WILLWIISGE Attorney General of Texas
BY / Gecil Cammack,Jr. AssistantAttorney General CC:aw HonorableGeorge E. Gilkerson,Page 3. (w-652)
APPROVED:
OPINION COMMITl'EE:
C. K. Richards,Chairman
3. C. U v::sJT. J.