Untitled Texas Attorney General Opinion

September 30, 1969 konorable Oscar B. McInnis Opinion NoIYj481 CriminalDistrict Attorney )ridalgO County Courthouse Re: Whether under certain Idinburg,Texas stated facts a so-called bingo game conducted over cable TV constitutes a lottery? Dear Mt. McInnis: You have requested an opinion from this office concerning Ihe following facts: "A Cable Television Company operating in this area proposes to conduct a Bingo Game on their Cable Television System. The Cable Television Com- pany sells service to subscribers much like the -. telephone company and included are the channels for the two local stations, the three Corpus Christi stations, three Monterrey, Mexico stations, a local . time and temperature channel and local channel for movies and other studio presentations of the Cable Television Company. The charge is $3.00 or $4.00 per month to each subscriber for the service. "The proposed game would be on the order of a Bingo game, with cards to be furnished to anyone who wished to play without charge and without the obligation to make any purchase. The sponsor would see to it that Bingo cards were available at various outlets to anyone interested in playing. The scheme would probably be advertised locally in the news- papers, radio, and perhaps the other television stations, as well as the Cable Television channel. - 9347 - Honorable Oscar B. McInnis, page 2 (M-481) Bingo games would be played two or three nights a week and there would be five games. As the numbers for each game were called, as soon as a winner had properly filled in his card he wou,ldcall the local number for the Cable Television Company, and, after a-spot verification by tele@one, a new game would be started until all five games had been played. It would later be necessary for the winner tp bring his card to the Cable Television Company office to verify that he did have a card that was properly issued by the sponsor. A prize of money or merchan- dise would be given to each winner. "In order to.find out what numbers were being called, it would be necessary for the viewer to watch on a television set which was connected to the Cable Television System. It would not be neces- sary for the winner tq be a subscriber to the Cable Television System or a member. of his family. Anyone who had one of the cards and had knowledge of the numbers being called .^ would be eligible to win." In State v. Socony Mobil Oil Company. Inc., 386 S.W.Zd 16% (Tex.Civ.App. 1964, error ref. n.r.e.) the court set forth the three elements of a lottery. At page 112, the court said: "Thus we see that a lottery is composed of three.elements, to-wit: (1) a prize or prizes: (2) the award or distribution of the prize or prizes by chance: (3) the payment either directly or indirectly by the participants of a consideration for the right or privilege of participating."~ It is clear that two of.the three elements of a lottery.d prize or prizes and the awarding thereof by chance, are presC:.'- in the Bingo Game as outlined in your letter. we will, there- fore, focus our attention on whether or not the element of consideration is present. - 2298 - Bonorable Oscar B. McInnis, page 3 (~-481) The Texas Court of Criminal Appeals, in Brice v. State, 156 Tex. Crim. 372, 242 S.W.2d 433, 435 (1951), had before it a scheme wherein merchants awarded~a prize or prizes by chance to registrants at a store, and registrants were not required to purchase anything but merely to register in the drawing. Th.emerchant thereby received the benefits of adver- tising. The Court said: "Under the authorities mentioned, we must conclude that in the absence of any character of favoritism shown to customers, the lottery statute, Art. 654. P-C., is not violated under a plan whereby a merchant awards a prize or prizes by chance to a registrant without requiring any registrant to be a customer or to purchase merchandise or to do other than to register withoutcharge at the store, though the donor may receive a benefit from the drawing in the way of advertising." On Motion For Rehearing, ,the Court further held: "The 'consideration' in this case which moves from the parties participatinq in,the drawinq for the prize, or prizes, to arjpellantis entirely fanciful. It is not sufficiently substantial to be classed . as a reality." (Emphasis added.) See also American Broadcastinq Cases, 347 U.S. 284, 98 __- .-_-_. L.Ed. 699 (19541. From the facts you relate, no subterfuge is shown, as existed and found in Cole v. State, 133 Tex. Crim. 548, 112 S.W. 725. The mere fact that cable TV subscribers are in a more favorable position to win at the game does not con- stitute a subterfuge. Likewise, the mere fact that the donor may receive a benefit in the way of advertising does not constitute consideration for purposes of a lottery in the State of Texas. The only consideration apparent in the TV cable subscriber's contract is the payment of a fee merely to watch and listen. Under the instant plan a person must complete his bingo card, either by watching a television set connected -2299- Honorable Oscar B. McInnis, page 4 (M-481) ‘, to the cable system or obtaining information from some other person who has such a.television connection. No payment for any purpose is necessary as a condition to receiving a prize. and there is no requirement that a person be a subscriber in order to win. It is our view that any consideration, other :?,. advertising, involved in the foregoing procedure would be "fanciful" or inconsequential, and not fall within the terms of Article 654, Vernon's Penal Code. In Attorney General's Opinion No. C-108 (1963), it was held that a scheme whereby merchants sponsored bingo on television, with the first party calling in with a "bingo" winning a prize, was not a lottery, the element of considerationbeing absent therefrom. In support of this opinion is cited Attorney General's Opinions :;-s, bers HIV-652 (1959) and WW-1421 (1962). involving similar prrre winning schemes over TV in which the element of consideration was not present. You are therefore advised that it is the opinion of this office that the aforementioned plan of the cable television company does not constitute a lottery within the terms of Article 654. SUMMARY Under the stated facts, a cable tele- vision company which sponsors a bingo type game over its facilities is not en- gaged in a lottery in violation of Article 654, Vernon's Penal Code. General of Texas Prepared by Malcolm L. Quick Assistant Attorney General -2300- Honorable Oscar 8. McInnis, page 5 (M-481) APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Cha~irman w. 0. Shultz Alfred Walker Harold Kennedy Bill Allen Richard Chote MEADE F. GRIFFIN Staff Legal Assistant BAWTEORNE PHILLIPS Executive Assistant NON WHITE First Assistant : ,-2301-