Untitled Texas Attorney General Opinion

The Attormy General of Texas ,July9, 1986 JIM MAl-fOX Attorney General SupremeCourtBuilding Honorable James S. EcGrath Opinion No..JM-513 P. 0. Box 12548 Austin, TX. 78711. 2546 Criminal District I,ttorney 5121475-2501 P. 0. Box 2553 Be: Whether a lottery occurs where Telex 9101874.1387 Beaumont, Texas Y'7 704 persons make donations to a non- Telecopier 5121475.0288 profit organization and receive thereby a chance to win a painting 714 Jackson. Suite 700 Dallas, TX. 752024505 Dear yr. McGrath: 21U742-8944 You ask the following questions: 4824 Alberta Ave., Suite 160 El Paso. TX. 799052793 1. 113 it a ‘lottery’ if a nonprofit organiza- 915/53534&l tion giv#asaway artistic paintings to holders of numbered tickets, where the winners are chosen at random, ratdwhere each person receiving a numbered 1OOt Texas, Suite 700 ticket is asked to make a donation for' the pur- “uston, TX. 77002.311 t chase of art collections? J223-5886 If your answer to question number 1 is 2. 808 Broadway, Suite 312 ‘no, would your answer be different if persons Lubbock. TX. 79401.3479 making donations should be given more tickets and 806/747-5238 hence, m'xce chances of winning than those who do not make donations? 4309 N. Tenth, Suite S McAllen, TX. 78501-1885 You indicate that xickets for the drawing will be made available at no 5121882.4547 cost but that persons who want a ticket will be asked to make a "voluntary" donation. Your letter states that all tickets will in 200 Main Plaza. Suite 400 fact bear the statement "[dlonations of $5.00 requested." San Antonlo. TX. 78205.2797 51212254191 A "lottery" l.s,defined in section 47.01(6) of the Texas Penal Code as follows: An Equal Opportunity/ AffIrmalIve Action Employer 'Lottlzy' means any scheme or procedure whereby one or mOce prizes are distributed by chance among persons who have paid or promised consideration for a chance to win anything of value, whether such scheme (81 procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or some other name. See also Tex. Cons!:., art. III, $47. p. 2355 Honorable James S. McGrath - Page 2 (JM-513) The promotion you describe is intended to raise money for a charitable purpose. Nevertheless, as the court stated in State v. Amvets Post Number 80. 541 S.W.2d 481, 483 (Tex. Civ. App. - Dallas 1976, no writ), "a lottery is no less a lottery if the proceeds are used for charitable purpcses." See also Attorney General Opinion H-820 (1976). There is only a limited "bingo" exception for charities See V.T.C.S. art. 179d. under article III, section 47(b). - Under section 47.01(6). three elements comprise an illegal "lottery": (1) one or mom prizes, (2) distribution of the prizes by chance. and (3) the payment or promise of consideration for the chance to win. This statutory dt,finitionechoes the established definition of a "lottery" under article III, section 47 of the Texas Constitution and under prior Penal Code provisions. See Brice v. State, 242 S.W.Zd 433, 434 (Tex. Grim. App. 1951); GriffithAmusement Co. v. Morgan, 98 S.W.2d 844, 845 (Tex. Civ. App. - Austin 1936, no writ). You suggest that the element of consjderation is lacking in the situation you describe because it is por;sible to obtain a ticket without making a donation. Although the courts in Brice v. State and Griffith Amusement Co. v. Morgan fcund that no"lottery" occurred, both cases involved promotions where 'u) charge of any kind was exacted from any See also State v. Socony Mobil Oil Company, Inc., of the registrants. --- 386 S.W.2d 169 (Tex. Civ. Lpp. - San Antonio 1964, writ ref'd n.r.e.). Numerous Texas court #cases and Attorney General Opinions have addressed proposals simila::to the one you are inves~tigatingand have held that they constitute "lotteries." See Attorney General Opinion H-820 (1976) (and cases cjted therein). In Attorney General Opinion H-820, this office determined that a proposal to distribute tickets to persons who make a charjtable "donation" of a designated sum is indistinguishable from an outright sale of tickets. As the Texas Supreme Court.stated in City of Wink v. Griffith Amusement Co., with regard to a similar drawl.: True, no doubt l.f 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. (Emphasis in oril;inal). - 100 S.W.2d 695, 697 (Tex. 1.936). Further, the fact thztt one person receives a chance to win for free while another person "pays" for the chance does not negate the fact that someone in the contest has paid consideration for the chance to win. Of course, if in Eact no one actually makes a donation, then no lottery would occur. As a practical matter, we agree with the p. 2356 Honorable James S. McGrath - Page 3 (JM-513) court in City of Wink. If the organization did not anticipate some donations, no drawing would be held. Consequently, a drawing held by a nonprofit organization where tickets for the drawing are available for free but where persons who request tickets a,re askei. to make a donation would constitute a "lottery" unless no one actually made a donation. Accordingly, we need not reach your second question. .SUMMARY A random drawing for artwork, sponsored by a nonprofit organisation, in which tickets are available for free but where persons who request tickets are askei.to make a donation constitutes a "lottery" under ciection47.01(6) of the Texas Penal Code once any person actually makes a donation for a ticket. I JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney Goneral MARY KELLER Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Assistant Attorney General p. 2357