Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Tom Seay
county Attorney
potter county
hmarillo, Texarr
Dear sir;
ue hare oarefull
sented in your Utter or
the oplnlon of this depar
q?ree cash Gift AWardr aa
you attatrhed to your letter
to be praotloed by a
violation nrtfole
r *et enry psrson in this oity ding territory 8ay know mr0 ore and more about tha complete that we carry at the Very and so that you may visit our 8torb pressriptlan department and make the acquaintance or our tine staff or employees, and that we may meet you an& know pU personally and be able to serve you bettor, W have adopted sn advertising plan mbereb a rrubetan- tial cash award will be made the pub io amry r day except Sundan and legal holidays.
Honorable Tom Seay, page 2
"The rules of this plan are aa follows:--
1. Every person who pePtlclpatea must rin
out one only permanent registration oard iving his true name and oorreot address.
# iotitlous names will not be aonaidered and there uelng them will not be allowed to partisipate. Thie registration oerd makes a person eliglbls but euch person must sign the daily register 'book every day in order to qualify for that day*8 oash gift award.
2. It is not necessary for the publio to make
a purahase in order to partiolpate.
3. Cash gift awards till be made at 3lSO P.M.
every day (Sunday6 and holidays excepted). 4. Inrormutlon relative awards will be
posted in our windona and atore. 5. It la not neoessary ror partlolpants to be
present at the time of the drawing to re- oeire the oash gift awards.
6. Every day some dlsintereated person will
draw a number stub rrom the box, suoh num- bersd atub being the rlnnin~ number ior that day.
7. In the event that the name ot the pereon
holdfag ~the winning number does not appear on the daily register, $1.00 will be added every day until the girt award ti made to some person In the community whoee name ap- pears on the daily register.
8. III ease of any dispute, the merohant's de-
cielon ehall be final. 9; Store emplopaes, their ramllfes and rela-
tives, are not eligible to partialpete or receive the oaah gift awards.
10. IF YOU HAYE NOT XQX.STEf#D, PLEASE DO SO AT
OlJCE . "
Honorable Tom &my, pa@ 3
Your letter further #tates: "It Is oontended that suoh sohome does not constitute a lottery, beoauee there Is no consideration lnvolvod and that ohsnose are rreslp and openly given to all persons deslr- lug same, without regard to whether a purohaae la made from the mrsrohanta partlolpatlng or not.
We believe It to be the general rule that ln order oonstltute a lottary tbre must be three element@ present, to-wit, (1) oonslderatlon, (2) @heme, and (3) prize, end that all three such elementa must be pre6ent.
. . .- We believe that Oplnlon Ho. O-2063, a6 previous- ly given by this offloe to Honorable Prsd T. pertu, County httorneg or murmn county, is dlrsotly In point ror the oaaa you have at hand. Ne at%ach hereto a oopy or that opinion . AS you will observe, this -Box orrlee fnouranoe* was obtainable from motion pioture by a mere theatre act or registration, without requlslte attendanoe at the theatre . Also, the winner of tha award did not have to bo present at the. theatre, but hl6 n&me as wlmer wa6 posted In the lobby, and he oould colleot thr money at any time wlthln thirty days; or upon hi8 tallure to present hlmarli to receive the money, the said 6um would be given to the rarent teachers @aoolatlon.
Opinion Ho. O-2063 aekmwledges the readily ap- parent qualitiee of ohanoe *nd pFlxe, and demt6s ltaelt ehlerly to the question of oonalderatlon. In this respectt the eases of Cole va. Stats, 112 8. W. (2d) 725, $tate ~8. Robb and Rowley united, Ino., 118 s. w. 917, and Feather- stone vs. Independent Servlae Station Assooiatlon, 10 S. Wh (2d) 124, are eited aa lnetanoes wherein the oourte hate held that the oonslderatlon Involved although to a de@ee lntaaglble was nevertheless effeatlve, and that the absonee of an aatual required purohase or other lnveatment on the part or the would-be reolplrnt or the prize, was not aUtri- olent to relieve the praotlce in question of the etigaae Or 0onki.n~ under the olasslrleatlon a lottery. *4 Honorable Tots Seay, patie 4
In view of the authoritlee olted ln opinion MO. O-2063, and the parallel clroumatances whioh these oases have to the case which you present, you are respectfully advised that it is the opinion of this department that the scheme described by you and upon which ou request an opln- on or mtiole 654 ion does constitute a lottery in vlolat 1: of the yenal Code of this State.
Very truly yours