Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Hemorable Cliat Barham County Attorney Erath County Stephenville, Texas
Dear Sir:
Oplation No. 0-3958 Re: Whether or not a voting contest whereby votes are given with the purchase of drugs or other merchandise from a certain drug stop, the number of votes varying with the amount of the purchase, and prices being awarded to the contestant having the largest number of votes after the contest has continued for a certain stated length of time acquistates a lottery.
Your letter of November 19, 1941, is quoted as follows:
"A drug store in this county is giving away prices for votes that are obtained by the purchase of merchandise in the store. Each penny's worth of merchandise purchased entities one to a vote. D
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the purehase of the article does not get the bene- fit in some eases of the purehase sinee he gives his votes to some other person. I am unable to find this precise question answered in the eases or any of your opinions. We are very anxious to have an opinion on this as soon as possible in or- der that we may inform the drug store manager as to whether or not he is violating the law. If at all possible please let us have an opinion in the next two or three days. In my opinion this state of facts does constitute lottery even though the purehasex does receive the benefit in some eases." Section 47 of Article 3 of the Constitution of Texas reads: "The Logislature shall peas laws prohibiting the establishment of lotteries and gift enter- prises in this State, as well as the sale of tickets in lotteries, gift enterprises or other versions involving the lottery principle, eatab- lished or existing, in other states."
In accordance with this provision of the Constitution of the State, the Logislature 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 ( ) Dollars nor more than One Thousand ( ) Dollars; or if any person shall sell, offer for sale or keep for sale any tickets or part tickets in any lottery, he shall be fined not less than ten ( ) Dollars nor more than fifty ( ) Dollars."
In city of Wink v. Griffin Amusement Company, 100 S. W. (24) 695, (Tex. Sup. Ct.) the court said: "The State Penal Code does not define a lottery, but our courts have interpreted it in accordance with public usage, to mean a scheme or plan which provides for a distribution of prises by ehanes among those who have paid, or agreed to pay,
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a consideration for the right to participate therein. 28 Tox. Jar. P. 409, Soe. 2, and the oases eited in the notes."
And in a later case Smith v. State, 127 S. W. (2d) 297, our Court of Criminal Appeals has the following to say: "A fair definition of a lottery is found in the holding that it is necessary, in order to establish a lottery, that three things concur: (1) there must be a prize; (2) the ownership of such prize must be arrived at by chance, and (3) there must be some consideration moving from the recipient of such prize to the donor of such prize. All these three necessary constituents must be present before the establishment of a lottery is shown."
On numerous occasions this department has passed on lottery questions. The file numbers of some of these opinions are . Should you desire copies of any or all of these opinions this department will be glad to furnish some at your request.
Our courts have held that any scheme for the distribution of prizes by chance is a lottery in State v. Randall, 41 Tox. 296, and Holman v. State, 47 S. W. 550, In City of Wink v. Griffin Amusement Company, supra, the bank night scheme was held to be a lottery, in Robb and Rowley, et al v. The State, 127 S. W. (2d) 221, the "Bank Night" scheme was held to be a lottery and in Smith v. The State, supra, the Noah's Ark sehene was ho1d to be a lottery.
We believe, however, that the plan desoribed in your letter and the eireulers and advertisements accompanying your letter is distinguishable from any and all of the schemes which the above eited opinions hold to be lotteries within the prohibition of Article 654 of the Ponal Code. The plan described by you wherein a drug store gives votes with the purchase of merchandise from such drug store, the number of votes depending upon the amount of the price of the purchase, the votes then being east by the purchaser of the merchandise for and in favor of any contostant in whose behalf
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the purchaser chooses to east aueh vote and prizes being awarded at the and of a atated time to the oontestant or oontestants having the greatest number of votes, the priaelpel prize being awarded to the oontestant having the greateat number of votes, the aecond most important prize going to the oontestent having the aecond lergest number of votes, ete., we think clearly has two of the elemeats meaessary to make it a lottery. First, the plan requires the payment of a consideration in order for the purchaser to participate in the oontest by reaciving votes in that he must make a purchase at this drug atore in order to reacive the votes, and the fact that the prioe of the merehandiee is no greater than it would be if no votes were given with the purchase does not alter the fest that it is "consideration" as consideration is defined in the opinions. Second, the prize element in also contained in this plam, beaause prizes are awarded to contestents in accordance with the number of votes east in their behalf. However, we do not believe that the third element "chance" is present in this plan so as to bring it within the definition of the opinion holding that selecting the reaipient of the prize or prizes by chance is an essential element to constitute a lottery aince the number of votes reacived by each eontestant seems to depend largely or entirely upon his popularity, upon his akill and olequenee and persuasive ability in persuading others to east their votes for him or his financial ability to buy merchandise entitling him to votes. Therefore, we are of the opinion that the "roting contest" deaeribed by you is lacking in one of the essential elements meaessary to make it a lottery and is not aueh a lottery as is made punishable under Artiale 884 of our Penal Code.
- We are unable to find in the reported deaisions of our State any ease bearing dirustly upon or deaeribing such Protiag eonteats" as thot deaeribed in your letter but upon searehieg ine Reaisions of other jurisdictions, we have found several eases in which ateb "roting conteste" were held not to be letterion and no eases in which such conteste were held to be letterios. While these eases from other atatea would not be considered as contrelling, we think they are persuasive and for your information we quote the applicable parts of sueh eases below, together with their oitations: "A voting contest in a atore with a plane and alivermere as prizes to be awarded to the contestents having at the ond of the contest the most
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votes, which could be acquired ouly by purahasing merchandize at the atore, or by procuring votes frou. -sher contestants, did not constitute a 'lottery', within Rev. Lawg, 0. 214, 87, Whltman v. Fournier, 125 N. E. 303, 233 Mass. 154. "The operator of a populerity contost under which merahants issued bellots to oustomers, entitling oustomers to vote for any person not ongaged in sponsoring or promoting the contest, the winners of which were entitled to certain prizes, was not gulity of operating a 'lottery' prohibited by atatute, sinee element of 'shance' was lasking. P. L. 8683. State v. Lindsay, Vt., 2 A. 2d 201. "A sehene by which a merahant or association on selling merchandise at reggler prioes issues to purchasers bellots entitling them to express their cholee a certain number of times, acoording to the prioe of artielea bought, in favor of any person competing for prizes to be given to the persons receiving or holding the greatest number of votes, is not a 'lottery' prohibited by statute. P. L. 8683. Itate v. Lindsay, Vt., 2 A. 2d 201. "A sehene by which a merahant, on selling merchandize at reggler prioes, issues to purchasers bellots entitling them to express their cholee a certain number of times, according to the prioe of artielea bought, in favor of any person competing for prizes to be given to the persons reseiving or holding the greatest number of votes, is not a 'lottery', not involving an elemeat of shance. National Sales Co. v. Maneiet, 162 P. 1055, 1056, 83 Or. 34, I. R. A. 1917D, 485. "The fest that there might have been fraud or sharp practice during populerity contest under which merahants issued bellots to oustomers enti4: tiling oustomers to vote for any person not ongaged in sponsoring or promoting the contest, the winners of which were entitled to certain prizes, did not render the contest a 'lottery', sinee any such fraud or sharp practice, if shown, would not tend to indieate that blind fate was the deeiding factor in the contest. P. L. 8683. State v. Lindsay, Vt., 2 A. 2d 201."
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You are respectfully advised that in the opinion of this department the plan deaseribed by you dees not oonstitute a lottery and is not prohibited or punlabable under the provisiom of our Penal code.
This plan may be "a girt onterprise" such as that deasribed by the provisions of the Constitution of Terses hercinabove set out. If it is the kind of "gift enterprise" deasribed in said oonstitutionel provislom then it is against pablic polley being in contravention of the Constitution of the state of Texas. However, the Logislature has thas far not asen fit to offeetuate this provislon of our Constitution and has not prohibited or provided omotions for the punishment of those operating girt enterprises if, in fact, the plan deasribed by pou is the kind of gift enterprise contemplated by the Constitution.
We trust that we have suffioiently and satisfactorily answered the inquiry contained in your letter.
Very truly yours
RFOimp