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A-,Ysm ~~&.z.?.lc”*& March 18, 1964
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.~i Mr. R. L. Lattimore Opinion No. C-228
Criminal District Attorney
Ridalgo County Courthouse Rex 'Whether the give-away
Edinburg, Texas program of certain merchants
in Hidalgo County, Texas, under
the facts stated, constitute a
Dear Mr. Lattimore: lottery.
BY letter dated March 6, 1964, youhave requested an opinion
from this office as to whether a give-away program now being
conducted by certain merchants in your county, using regis-
tration blanks which require certain information in addition
to name and address to be filled in so that the entrants may
be eligible for the drawing, constitutes a lottery.
The additional information required in the registration blanks
relates to the age and make of certain of their appliances and
what type of appliance they plan to purchase in the future,
and would presumably be used in future sales solicitations.
The ruling decision on this subject in this State is Brice v.
State, 242 S.W.211 433 (Tex.Crim.App. 1951). In this case the
give-away scheme required that anyone could register merely
by going to the meszanine,floor and writing his name, address,
and telephone number on a card, that one could not win a prize
without so registering, and that no registrant was required to
make a purchase or to be at the store at the time of the draw-
ing. The Court held that this scheme did not constitute a
lottery since the element of consideration was lacking.
Although the fact situation you have outlined to us is some-
what different, we nevertheless feel it to be governed by the
holding in Brice. It is true, that, in addition to name, ad-
dress! and telephone number, the registrant must furnish fur-
ther information, presumably so that salesmen may contact each
of the registrants at some future time to attempt to sell them
some merchandise: but this further element fails to constitute
a consideration.
In Brice, the Court stated:
"The fact that the holder of the drawing expects
thereby to receive, or in fact does receive, some ben-
efit in the way of patronage or otherwise, as a result
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Mr:R..L..Lattimore, Page,2 (Opinion-No. C-228 )
of the drawing, does not SUpply the element of
consideration paidby the chance holder for the
chance. _ _ .
*'Distributing prizes by lot or chance to holders
of tickets given away is not carrying on a lottery,
although it may be done with the view of drawing a
large~crowd together in the hope of profit from such
of them as may choose to buy medicines .from the dis-
tributor, or tickets to performances given by,him, or
to pay for seats in the tent where the prizes.are se-
lected, Where no payment for any purpose is necessary
was a condition of receiving a prize. . . .
"Under the authorities mentioned, we must con-
clude.that in the,absence of any character of favori-
tism shown to customers, the lottery.statute, Art. 654,~
'P.C., is not violated under a plan whereby a merchant
awards a prdze or prizes by chance to.a registrant with-
out requiring any registrant.to be a customer or to pur-
chase merchandise or to do other than to register without
.charge.at the store, though the donor may receive a ben-
efit from the drawing in the way of advertising. . . .
"The 'consideration' in this case which moves from
the parties participating in the drawing for the prize,
or proses, to appellant is entirely fanciful. -It is not
sufficiently substantial to be classed asa reality. If
the,people who registered are to be:construed to have
paid a-consideration by merely stepping into.the ~house
-and signing their names, we.would, find~ourselves .in con-:
.flict with.all~the decisions-of ourcivil courts on quesj
tions of contract involving a~consideration. .It would !
~hardly be necessary,to discuss the.question if,involved i
.in a civil-action. .Just why we~should use.a different
rule to measure a ~consideration is not understandably."
SUMMARY
Since the merchant does not require.any registrant
to'~~beaIcustomer or to purchase merchandise .or to
do other than to register v?ithout,c.hargeat the
store; and, although the holder of the drawing ex-
pects to,receive, and may in fact, receive some .,
benefit by way of patronage.or otherwise, the ele-
ment of;consideration is lacking and the give-away
program outlined is not a lottery.
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Mr. R. L. Lattimore, Page 3 (Opinion No. C-228 )
Yours very truly,
WAGGONER CARR
Attorney General of Texas
BY
CHARLES B.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chaiknan
Al10 B. Crow
Wayne Rodgers
W. ~0. Shultz
Gordon Cass
APPROVED FOR THE ATTORNEY GENERAL
BY: Howard W. May6
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