Case Information
*1 EMEIRAL OF TEXAS Opinion No. 0-28L3
Hon. Gean B. Turner Re: Whether or not advertising scheme District Attorney ("Appreciation Day") of merchants of Johnson Count; Cleburne constitutes a latter. Cleburne, Texas Dear Sir:
This will acknowledge receipt of your letter of October 22, 19l~0, requesting the opinion of this department as to whether or not the following scheme constitutes a lottery in violation of Article 6% of the Penal Code:
YThe merchants of Cleburne want official ruling re- garding a trades day plan called 'Appreciation Day'. The plan operates by merchants who pay to a caumon fund called Appreciation Day. These merchants give coupons called 'Treasure Chest' coupons, which coupons contain markings from 5 to 50%. -After perchases are made in these partici- pating~ firms ~the customer is given a coupon which is punched from any denomination from the 5 to $I$. The custom to be generally followed that a customer who purchases from 254 to 99g in a participating store is given a 5% punched coupon; a purchase of $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.OO to $10.00, a 50% coupon.
"The customer then signs his or her name and address onthe back of the coupon, drops it in a box. On 'Drawing' day the tickets or coupons are placed in a general container from which is drawn a winning ticket. The persons whose name is drawn is awarded the 5, 10, 20,,30, 40 and sC$ of the trades day fund money depending on the percentage of the coupon which is drawn.
"A wife may answer for her husband and a husband may an- swer for his wife.
"If neither of these people are present, another ticket or coupon is drawn until someone is actually awarded scme part of the 'Appreciation Day Money'.
"Though it is the general practice that tickets or cou- pons be given after each purchase or payment on account, a *2 Hon. Gesn B. Turner, page 2 (O-28W)
person may request a 'free' coupon of the merchant if he does not have a coupon to participate in the draw- ing.
"The purpose of the plan is to create interest in the home community by the merchants giving away of such prizes. Customers who are loyal ta Cleburne are given these coupons after they have traded with local partici- pating merchants. No consideration of value is placed on these tickets.
“A folder explaining the plan, together with a sample of ticket, is included herein for examination.
The merchants would appreciate an immediate ruling on the legality of this Appreciation Day plan."
This department has on numerous occasions passed on the question of whether or not various mercantile advertising schemes constitute a lot- tery, and without exception has so branded them when the elements of chance, prize and consideration have been found to be present.
We are enclosing copies of three opinions previously rendered by this department (0-117h, O-2286, o-2563) which we believe to be directly in point.
For the reasons set forth in Opinions Nos. O-1174, O-2286 and O- 2563, and under the authorities there cited, it is our opinion and you are respectfully advised that the mercantile advertising scheme described in your letter, "Appreciation Day", constitutes a lottery as is condemned by Article 69~ of the Penal Code of Texas.
Very truly yours, ATTORNEY GENERAL OF TEXAS By /s/ Jas. D. Smullen Jas. D. Smullen, Assistant APPROVED CCT 28, 191rO
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
JDS:db:wb
Enclosures