Texas Attorney General Opinion: WW-652 Page: 1 of 3
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June 23, 1959 - ----
Honorable George E. Gilkerson Opinion No. 1W- 652
District Attorney
Lubbock County Courthouse Re: Whether a proposed game
Lubbock, Texas known as "Orbit" would con-
stitute a violation of the
lottery laws, Article 654,
Vernon's Penal Code.
Dear Sir:
You have requested an Opinion as to whether a game called "Orbit"
would be a violation of Article 654 of Vernon's Texas Penal Code. The game
"Orbit" as described in your request and in the advertising materials which
you forwarded is similar to the well-known game of "Bingo" and the game of
"Play Marko" as discussed in Attorney General Opinion M-22.
Players play "Orbit" through a local television program for
prizes. The cards carry advertising and are made available at participating
stores. There is no obligation to buy any goods in order to be given a card
and direct mailing to homes in a trading radius of each of the participating
stores will be made. Each week three games of "Orbit" are played and one
game of "Space" is played. "Space" is like "Orbit", but only people who have
won at "Orbit" are eligible to play.
The only basic difference between "Orbit" and "Play Marko" is that
"Orbit" cards are mailed within the trade radius while "Play Marko" cards
were only available at the participating stores. Attorney General Opinion
WW-222 held that "Play Marko" was a lottery.
It is well settled that a lottery consists of three essential
elements, namely: (1) a prize or prizes, (2) the award or distribution of
the prize or prizes by chance, and (3) the payment either directly or indi-
rectly by the participants of a consideration for the right or privilege of
participating. Cole v. State, 133 Tex. Crim. R. 548, 112 S.W.2d 725-730
(1937).
It is clear that the essential elements of "prize" and "chance"
are present; the question raised here is whether there was payment of consi-
deration. There is no "skill" question asked of winners as in "Play Marko".
In Brice v. State, 156 Tex. Crim. R. 372, 242 S.W.2d 433 (1951),
the Court of Criminal Appeals stated:
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Texas. Attorney-General's Office. Texas Attorney General Opinion: WW-652, text, June 23, 1959; (https://texashistory.unt.edu/ark:/67531/metapth267264/m1/1/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.