Hon. R. L. Lattimore Opinion No. C-50
Criminal District Attorney
Hidalgo County Re: Wheth$r "Lucky Car
Edinburg, Texas Night > a give away
program, constitutes
a lottery under the
Dear Sir: stated facts.
You have requested an opinion of this office on
the following questions:
1. "Whether 'Lucky Car Night', a give
away program $onstitutes a lottery under the
stated facts.
2. "Whether the answer would be
different If the theatre, through some
method of general circulation, freely
distributed the registration cards to
parked cars in the towns in $he area
being served by the theatre?
The following Information was submitted with the
opinion request:
"Every night of the week the regis-
tration cards are available at the Box
Office out side the theater and also at
the Snack Bar Inside the theater on
request of anyone, not under 18 years of
age, who drives a car to the theater.
When a car is entering the theater, a
registration card is given to the driver
when the theater ticket is purchased.
There is no limitation on the number of
times anyone driving a car may register,
(their car) and additional registration
cards are given at any time upon request.
Following the drawing each Tuesday night
the card drawn, winner or not, is
placed on the bulletin board on the
Snack Bar, and a copy of such card is
displayed at the Box Office. Each
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Hon. R. L. Lattimore, page 2 (C-50 1
Tuesday the sign in front of the
theater, in addition to advertising
the two features showing that night,
also has the words 'Lucky Car Night'.
Anyone desiring to register without
paying admission and entering the
theater may drive to the Box Office,
located outside the theater, request
a card, fill it out and return it to
the Box Office. The drawing is conducted
each Tuesday night inside the theater
and the winning car is announced through
loud speakers at the Box Office and the
Snack Bar." (words in parentheses
not part of quote)
On the reverse side of the registration card is an
explanation of the procedure followed by the Drive-In.
"How It Works
"1. Winning car will be announced
at a drawlng through loud speakers at
the snack bar and box office of the
BUCKHORN DRIVE-IN THEATER at 8:45 P.M.
every TUESDAY, to be eligible to
receive the award, If your car is
announced as a winner, you must present
your car to the outside box office or
inside snack bar within 5 minutes after
your car has been announced.
"2. If the award is not claimed
within the specified time, it will be
carried over to the following week
and $10.00 or more will be added
weekly until a qualified winner appears.
If the award reaches $500.00 a second
will be started and 2 or more names
announced.
"3. The success of this plan
depends upon free participation
therefore, registration, qualifi-
catiofland awards are absolutely
free.
Article III, Section 47 of the Constitution of
Texas provides:
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Hon. R. L. Lattimore, page 3 (C-50 )
"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 enterprises or
other evasions involving the lottery
principle, estabiished or existing
in other States.
Pursuant to this constitutional command, the Leg-
islature passed Article 654 of the Penal Code, which reads
as follows:
"If any person shall establish a
lottery or dispose of any estate, real
or personal, by lottery, he shall be
fined not less than one hundred nor more
than one thousand dollars; or if any
person shall sell, offer for sale or
keep for sale any tickets or part
ticket in any lottery, he shall be fined
not less,,thanten nor more than fifty
dollars.
In 2% Texas Jurisprudence, 409, we find the follow-
ing definition of a lottery:
"The term lottery has no technical sig-
nification in the law and since our statute
does not provide a definition, its mean-
ing must be determined from popular usage.
According to that test a lottery is a
scheme for the distribution of prizes by
lot or chance among those who have paid or
agreed to pay a consideration for the
right to participate therein, for the
distribtulon itself." (Emphasis added).
Under the set of facts presented unquestionably
two of the elements, prize and chance, are present. The
question for our determination is, therefore, whether or
not the element of consideration is present under the plan
submitted.
Various "Bank Nite" schemes conducted by motion
picture theaters, have been considered by the Texas courts
and almost without exception these plans have been held to
be lotteries, despite the fact that both patrons and non-
patrons of the theaters were allowed to participate. The
distrlbtion of "free" chances was held by the courts to be
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Hon. R. L. Lattimore, page 4 (c-50 1
a subterfuge, which would not have the effect of legalizing
an otherwise illegal scheme. City of Wink v. Griffith Amuse-
ment Co 129 T x. 40, 100 S.W 2d 69, 18;: ; Cole v. State,
112 S.W:$?d725 ?Tex.Crim. 193%); Rob2 v. U lted, v.
State, 127 S.W.&l 221 (TexCiv.App. I:-_,,
919); State vn; Robb &
Rowley, United, 1.18 S.W.2d 917 (Tex.Civ.1
RPp.i-9781.
City of Wink v. Griffith, supra, was a "bank
night"case, and persons were allowed to register for the
drawing without buying a theater ticket. Judge Cureton,
speaking for the Court said in part:
"The actual money returns on 'bank
night I would suggest that if any free
numbers were ever distributed. thev were
negligible. Wed ather from the whzle
testimons that ti!e so-called 'free number'
feature was largely one~~thatexisted in
the minds of those who operated the
theater, and that It was never made a
real active part of the 'bank night'
plan. True, no doubt if anyone had
applied for a free registration to the
drawing, it would have been given, but
human nature is such that the average
person would seldom, if at all, suffer
the natural embarrassment of asking for
a free registration. Indeed, If this
were not so, the income from 'bank
nights' would not have been sustantially
more than that which had obtained
prior to the operation of the plan. In
fact, the whole plan Is built up and
made profitable because no normal
person likes to 'bum' his neighbor
for something, and by an appeal to
the psycholog
some take a
aalns by a
invented and formulated the plan may
not have been 'learned in the law,' but
their knowledge of mass-psychology was
not wanting.
Human nature is such that a person is not likely
to drive out to the Buckhorn Drive-In Theater, get In a line
of cars entering the theater, ask at the Box Office for a
free card or cards, and then drive away while the patrons
are buying tickets, obtaining their registration cards and
entering the theater. It Is true that under the plan, the
registration cards are free upon request, but unless requested
no registration card is given or offered to anyone unless
they purchase a ticket to the show.
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Hon. R. L. LattimOre, Page 5 (c-50 )
Certainly the patron Is favored over the non-
patron since a registration card Is given to the patron
freely upon buying a theater ticket. However, the non-
patron must go to the box office and request a registration
card and suffer the embarrassment that naturally follows
when he says he is not buying a ticket to the show. See
Brice v. State, 252 S.W.2d 433 (Tex.Crim. 1951).
Also, the patron Is favored over the non-patron
since the winner needs to be present within five minutes
after the drawing to collect the prize. This would, of
course, almost eliminate anyone except a patron from winning.
In State v. Robb & Rowley, supra, the Court said on motion
for rehearing:
"All that was required of one desiring
to participate in a drawing, was to
have his name entered on the register.
But if his name was drawn, he had to
present himself within 3 minutes in the
showhouse. This was a strong motive, and
was intended as such, to make one who
desired to participate, pay for admis-
sion and be present on the night of a
drawing. If the one whose name was
drawn was not required to present him-
self in the showhouse until the night
succeeding the drawing in order to
become available to receive the award, the
motive to purchase a ticket of admission
would be greatly weakened. We construe the
opinion in the Cole case to hold, what we
conceived to be a motive, to be indirect
consideration, and further to hold that
Indirect consideration is consideration,
and that there was therefore present
in the transaction the essential element
of consideration to make of it a lottery."
It is evident from the Texas cases that the lottery
statute cannot be circumvented by a mere subterfuge or
evasion of the lottery laws by offering a few "free chances'
or making it practically impossible for a "free chance' to
win. Featherstone v. Independent Service Station Association
10 S.W.2d 124 (Tex.Civ.App. 192%).
It is our opinion that Lucky Car Night is a
lottery and, further, that a scheme of general distribution
of the registration cards would not make a difference.
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Hon. R. L. Lattimore, Page 6 (C-50 )
Even looking past the embarrassing feature of
having non-patrons go up to the box office and ask for a
registration card, which would be eliminated with a general
distribution of the registration cards, the requirement of
having thewlnner appear within five minutes would have the
practical effect of limiting the winner to a patron of the
theater.
SUMMARY
A plan which would have the practical
effect of limiting the winners to patrons of
the theater by requiring the winner to
present his car within five minutes at the
snack bar or box office is a lottery.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
Irwin R. Salmanson
Assistant Attorney General
1RS:cjs
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Howard Fender
Samuel S. Pharr
Malcolm Quick
Ernest Fortenberry
APPROVED FOR THE ATTORNEY GENERAL
m: Stanton Stone
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