Untitled Texas Attorney General Opinion

Hon. James k. Barlow .. opinion NO. c-108 Criminal Dletrlct Attorney Bexar County Courthouse Re: Whether the playing of San Antonio 5, Texas bingo on television con- stitutes a lottery and Dear Sir: related question. You have requested an opinion of this office on the follow- ing questiona: (1) ‘!I would ,llke to know whether in your opinion, in view of the authorities briefed above, whether you are of the opinion that the promotion described in the facta portion of thie request constitutes a lottery under the lottery law.” (2) “I would like to know whether In your opinion, in view of the authorities briefed above, whether the promotion herein described constitutes a ‘gift enterprlae’ or ‘evasion 1nvol:ving: the lottery principle’ violating the public policy of this State and flubject to Injunction at the request of the State. The following information- was submitted with the opinion request: “Cards of the normal bingo type will be distributed by merchants or other advertisers ae well as by the TV station. The cards ~~111 change In color from time to time and the game must be played on a current card., The cards will be given by themerohant to the player and will coat the player nothing except the time and effort to pickthem up. It is implied that the merchant will pay for the time of the.:atation land the prdzee and will pay the promoter for the use of the plan. which is protected by copy-right. The exact details of the financial arrangements have not been disclosed. The cards are not to.be connected with the sale “of merchandise and ~‘111 be free to the player at the merchant’s place of bualness. .A ‘. ,’ ,. Hon. James E. Barlow, page 2 (,c-108) “At a set time, bingo numbers will be selected by the announcer on television in full vlew of the audience, and the first party to call In with the bingo numbers covered (It will be black-out or cover-all bingo) wlll win a prize of $25.00. Ottfers will receive merchandise certificates as prizes. ‘ Article 3, Section 47 of the Constitution of Texas pro- vides: ‘The Legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this State, as well as the sale of tickets In lotteries, gift enterprlaes or other evasions in- volving the lottery prlnctple, established or existing in other states. Our courts have held that, In order to establish a thing as a lottery, three things must concur: (1) a prize or prizes; (2) the award or distribution of the priselor prizes by chance; (3) the payments either dlrectIy.or Indirectly by the participants of a consideration for the right or priv- FJ rvice ~~~~~o~~A~~~~:~~~~‘“~~ S:W;2ds;24 (Tex.Clv.App.dtt28); @ebb & Rowley ted. Inc at 127 S.‘W,2d 221 (Tex. civ.App. 1939); Brice v.’ State, 15?Tex.Crlm. 372, 242 s;w.hl 433. Under the set of facts presented, unquestionably, two .o~f the elements, prize and chance, are present. The question for our determination la whether or not the element‘of con- sideration is present under the plan submitted. By Attorney General Opinions ~~-652 and WW-1421, copies .of which are attached, it was our opinion in similar fact situations that the element of consideration was not present. We have recon- sidered these opinion8 and reaffirm them. Therefore, the answer to your first question IS answered in the negative. ‘. In ‘determining the meaning of “gift enterprises” as that term le’uaed~.ln Section 47 of Br6lcle III of the %onetltutl!on It Is necessary to ascertain the meaning of such term. at the time of the adoption of such section of the Constitution. er’s Ins..Co. v. MarahalL 124 Tex. 45, 76 S.W.Ed 1007 Especially helpful In ietermlnlng the meaning 6f the &ii enterprise” ia~lts relation to former statutes. ., .~ ,- ‘.. -535- .. i’ . &- a- shall b$ regarded as the proprietor of a gift enterprise. .., There appears to be no sale with a promise, either expressed or Implied, accompanied wlth'~the giving of anything In consid- eration of a sale and purchase under the facts given. Conae: quently, it appears that the playing of bingo, under the,,facts stated does not fit the deflnltlon of a "gift enterprise + No cases were found which expressed in any degree of clarity what 'other evasions Involving the lottery~prlnclple" .constltute. The courts have struck down various schemes, but :always on the basis of being a lottery, The lottery principle, as stated,above, has three essential elements: prize; chance, and consideration. It would appear, therefore, that to be an evasion Involving the lottery pr+nclple the same essential elements would have to be present,. Here, again, we do not have the essential element of consideration and so It is our opinion that the plan in question Is not an evasion Involving the lottery principle. SUMMARY Under the facts presented the playing of bingo on televlson is not a lottery or an evasion Involving the lottery principle as the element of consideration 1s not Nor does the playing of blngo.on television ~~~$n&e facts given fall within the definition of a "gift enterprise . Yours very truly, WAGGONER CARR Attorney General of Texas -1rwln R. Salmanson Assistant Attorney..General -536- ^_ _ Hon. James E. Barlow, page 4 (c-108) 1RS:cjp APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman J. S. Bracewell Murray Jordon Robert Lewis Malcolm Quick APPROVEDFOR THE ATTORNEY GENERAL By: Stanton Stone -537-