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.
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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.
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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
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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
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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 :
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