EMEIRAL OF TEXAS
Hon. Gean B. Turner OpinionNo. 0-28L3 DistrictAttorney Re: Whether or not advertisingscheme Johnson Count; ("AppreciationDay") of merchantsof Cleburne,Texas Cleburneconstitutesa latter.
Dear Sir:
This will acknowledgereceiptof your letter of October22, 19l~0, requestingthe opinionof this departmentas to whether or not the followingscheme constitutesa lottery in violationof Article 6% of the Penal Code:
YThe merchantsof Cleburnewant officialrulingre- gardinga trades day plan called 'Appreciation Day'. The plan operatesby merchantswho pay to a caumon fund called AppreciationDay. These merchantsgive couponscalled 'TreasureChest' coupons,which couponscontainmarkings from 5 to 50%. -Afterperchasesare made in these partici- pating~firms~thecustomeris given a couponwhich is punchedfrom any denominationfrom the 5 to $I$. The custom to be generallyfollowedthat a customerwho purchasesfrom 254 to 99g in a participatingstore is given a 5% punched coupon;a purchaseof $1.00 to $1.99, a 10% COUpOn; a pur- chase of $2.00 to $2.99, a 20% coupon;a $3.00 to $3.99, a 30% coupon;a $4.00 to 3bh.99, a LO% coupon,and a purchase of.$S.OOto $10.00,a 50% coupon.
"The customerthen signs his or her name and address onthe back of the coupon,drops it in a box. On 'Drawing' day the ticketsor couponsare placed in a generalcontainer from which is drawn a winning ticket. The personswhose name is drawn is awardedthe 5, 10, 20,,30,40 and sC$ of the trades day fund money dependingon the percentageof the couponwhich is drawn.
"A wife may answer for her husbandand a husbandmay an- swer for his wife.
"If neither of these people are present,anotherticket or couponis drawn until someoneis actuallyawardedscme part of the 'Appreciation Day Money'.
"Thoughit is the generalpracticethat ticketsor cou- pons be given after each purchaseor payment on account,a Hon. Gesn B. Turner,page 2 (O-28W)
person may requesta 'free'coupon of the merchantif he does not have a coupon to participatein the draw- ing.
"The purposeof the plan is to create interestin the home communityby the merchantsgivingaway of such prizes. Customerswho are loyal ta Cleburneare given these couponsafter they have tradedwith local partici- patingmerchants. No considerationof value is placed on these tickets.
"A folder explainingthe plan, togetherwith a sample of ticket,is includedherein for examination. The merchantswould appreciatean immediateruling on the legalityof this AppreciationDay plan."
This departmenthas on numerous occasionspassed on the question of whether or not variousmercantileadvertisingschemesconstitutea lot- tery, and withoutexceptionhas so brandedthem when the elementsof chance, prize and considerationhave been found to be present.
We are enclosingcopies of three opinionspreviouslyrenderedby this department(0-117h,O-2286, o-2563) which we believeto be directlyin point.
For the reasonsset forth in OpinionsNos. O-1174,O-2286 and O- 2563, and under the authoritiesthere cited, it is our opinionand you are respectfullyadvisedthat the mercantileadvertisingscheme describedin your letter,"Appreciation Day", constitutesa lotteryas is condemnedby Article69~ of the Penal Code of Texas.
Very truly yours,
ATTORNEYGENERALOF TEXAS
By /s/ Jas. D. Smullen Jas. D. Smullen,Assistant
APPROVEDCCT 28, 191rO /s/ GeraldC. Mann ATTORNEYGENERALOF TEXAS
BY: BWB, CHAIRMAN
Enclosures