EMEIRAL
OF TEXAS
Hon. Gean B. Turner OpinionNo. 0-28L3
DistrictAttorney Re: Whether or not advertisingscheme
Johnson Count; ("AppreciationDay") of merchantsof
Cleburne,Texas Cleburneconstitutesa latter.
Dear Sir:
This will acknowledgereceiptof your letter of October22,
19l~0, requestingthe opinionof this departmentas to whether or not
the followingscheme constitutesa lottery in violationof Article 6%
of the Penal Code:
YThe merchantsof Cleburnewant officialrulingre-
gardinga trades day plan called 'Appreciation Day'. The
plan operatesby merchantswho pay to a caumon fund called
AppreciationDay. These merchantsgive couponscalled
'TreasureChest' coupons,which couponscontainmarkings
from 5 to 50%. -Afterperchasesare made in these partici-
pating~firms~thecustomeris given a couponwhich is
punchedfrom any denominationfrom the 5 to $I$. The custom
to be generallyfollowedthat a customerwho purchasesfrom
254 to 99g in a participatingstore is given a 5% punched
coupon;a purchaseof $1.00 to $1.99, a 10% COUpOn; a pur-
chase of $2.00 to $2.99, a 20% coupon;a $3.00 to $3.99, a
30% coupon;a $4.00 to 3bh.99, a LO% coupon,and a purchase
of.$S.OOto $10.00,a 50% coupon.
"The customerthen signs his or her name and address
onthe back of the coupon,drops it in a box. On 'Drawing'
day the ticketsor couponsare placed in a generalcontainer
from which is drawn a winning ticket. The personswhose
name is drawn is awardedthe 5, 10, 20,,30,40 and sC$ of
the trades day fund money dependingon the percentageof the
couponwhich is drawn.
"A wife may answer for her husbandand a husbandmay an-
swer for his wife.
"If neither of these people are present,anotherticket
or couponis drawn until someoneis actuallyawardedscme
part of the 'Appreciation Day Money'.
"Thoughit is the generalpracticethat ticketsor cou-
pons be given after each purchaseor payment on account,a
Hon. Gesn B. Turner,page 2 (O-28W)
person may requesta 'free'coupon of the merchantif
he does not have a coupon to participatein the draw-
ing.
"The purposeof the plan is to create interestin
the home communityby the merchantsgivingaway of such
prizes. Customerswho are loyal ta Cleburneare given
these couponsafter they have tradedwith local partici-
patingmerchants. No considerationof value is placed
on these tickets.
“A folder explainingthe plan, togetherwith a
sample of ticket,is includedherein for examination.
The merchantswould appreciatean immediateruling on the
legalityof this AppreciationDay plan."
This departmenthas on numerous occasionspassed on the question
of whether or not variousmercantileadvertisingschemesconstitutea lot-
tery, and withoutexceptionhas so brandedthem when the elementsof chance,
prize and considerationhave been found to be present.
We are enclosingcopies of three opinionspreviouslyrenderedby
this department(0-117h,O-2286, o-2563) which we believeto be directlyin
point.
For the reasonsset forth in OpinionsNos. O-1174,O-2286 and O-
2563, and under the authoritiesthere cited, it is our opinionand you are
respectfullyadvisedthat the mercantileadvertisingscheme describedin
your letter,"Appreciation Day", constitutesa lotteryas is condemnedby
Article69~ of the Penal Code of Texas.
Very truly yours,
ATTORNEYGENERALOF TEXAS
By /s/ Jas. D. Smullen
Jas. D. Smullen,Assistant
APPROVEDCCT 28, 191rO
/s/ GeraldC. Mann
ATTORNEYGENERALOF TEXAS
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
JDS:db:wb
Enclosures