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Honorable Henry Wade Opinion No. ~-67
District Attorney
Dallas, Texas Re: Whether, under the stated facts,
a promotion program known as
"Texas Treasure Hunt" consti-
Dear Sir: tutes a lottery.
Your opinion request on the above captioned sub;jectreads,
in part, as follows:
"A local soft drink bottling company has recently
begun a promotion program which, according to posted
advertising,operates substantiallyas follows:
Under the cork liner of the bottle crowns are
pictures of a 'famousTexas landmark or a
Texas Treasure', ranging from motorbikes,TV
sets3 cameras and record albums to cartons
and bottles of soft drinks, Anyone finding
a 'Treasure'under the cork may surrender
it to the olant and receive whatever Is
pictured, -Free crowns:are available from
the route salesman, tHe retail dealer or the
local plant. The advertising further StiPu-
lates that the 'Offer can be withdra.wnwithout
notice and is void where prohibitedby law.'
A copy of some of the advertisingmaterial referFed
to above is enclosed herewith for your consideration.
enclosed with your request we
thine to buv!
ionprogram we find the
peel the cork from under
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Honorable Henry Wade,.Page 2, (M-67)
dealer." Also the following:,"NOTICE Mr. Dealer! Crowns that
say 'one free.carton' will yourplease redeem -- we will redeem
these crowns
be redeemed at
11 prizes not
It now.se&ms settled in this state that only three elements
are essentlaltto' constitutea lottery wlthin'thepurview of
Article 654, Vernon's Penal Code.of Texas, viz;
A prize or prizes.
i
II An award or dlstrlbutlonof.a prize or prizes by cha,nce,
and,
(3) Payment, either directly or indirectly,by participants
of a considerationfor the right or privilege of
participating.
In most schemes or programs of the type here presented, the first
two elements of a lottery next hereinabovelisted are normally
present and the paramount question usually presented Is the
determinationof the third element,~i.e.,whether there is pa.y-
ment by the participantsof consideration,either directly or
Indirectly,for the right or privilege of participating. In
view of the language of the o inion of Brice v. State, 242 S.W.
26, 433 (Tex, Crlm. App. 1951P , and Attorney General's opinions
WW-934, w-652 and M-6, It seems clear that any such pr0gra.m
providing that anyone m&y participatewithout the necessity of
a.purchase, and given reasonable opportunityto register or
otherwise become ellgib'leat each of the pa,rticlpating stores,
does not constitutea lottery as.that term is d,eflnedin sa,id
Article 654, Vernon's Penal Code of Texas.
Since these caps are available without~charge, we believe
that the reasoning ln,,Bricev. State, supra, apolies and that
the program known as 'TexasTreasure Hunt" Is not a lottery.
SUMMARY
The promotion program known as "Texas Treasure
Hunt". conducted Inaccordance wlth,the facts stated,
does not constitutea lottery within the purview of
Article 654, VetinonrsPenal Cod
- 310 -
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Honorable Henry Wade, Page 3, (M-67)
Prepa~redby Robert L. Lattimore a.nd
Monroe N. Clayton, Assistant Attorneys
General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Sam Kelley
Robert Owen
John Banks
Jack Sparks
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.