Texas Attorney General Opinion: GA-0133 Page: 4 of 7
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The Honorable Leticia Van de Putte, R. Ph. - Page 4
Given this conclusion, we need not answer your sixth question. See Request Letter, supra
note 1, at 2 ("Whether, if the factual scenario set forth herein does constitute a violation of a matched
contest as set forth in Chapter 40 of the Business and Commerce Code, appropriate damages should
be the actual value of the vehicle in question (the 'prize vehicle').").
B. Whether the Promotional Materials Constitute an "Entry Form"
Second, you ask "[w]hether promotional materials, with sealed keys, which were
received by targeted individuals would constitute an entry form as set forth in section 40.003(a)(4)
of the Business and Commerce Code." Id. at 2.2 The Act uses the term "entry form" as an element
of the term "matched contest," see TEX. BUS. & COM. CODE ANN. 40.003(a)(7) (Vernon 2002), and
in provisions governing matched contests, see id. 40.006(a)(2), 40.065-.066. We answer this
question, however, because it is not conditioned on an affirmative answer to your first question.
Section 40.003 defines the term "entry form" to mean "a card, letter, entry blank, token, or
similar device that identifies a contestant by: (A) name; (B) number, letter, or symbol; or (C) both
name and number, letter, or symbol." Id. 40.003(a)(4). Because this definition includes within
its scope a "token" or "similar device," the term "entry form" is not limited to traditional printed
material like cards or letters. To be an entry form, however, the item must identify the contestant
by (i) name or by (ii) number, letter or symbol, or both. As we have discussed, a key itself is not a
number, letter, or symbol that would identify a contestant, as these terms suggest information that
may be written. But a key could be labeled with written information.
It is not clear from the information you have provided whether any of the promotional
materials mailed by the business, which would include the written materials, the sealed envelope,
or written information on the key, identifies the recipient by name or by number, letter, or symbol.
If any such item does identify a recipient by name or by number, letter, or symbol, then it may
constitute an "entry form" within the Act's definition.
C. Whether the Promotional Campaign Involves a "Sales Presentation"
In addition, you ask "[w]hether the statements made by the used auto sales business
as set forth herein would constitute a solicitation to execute a contract that obligates a consumer
to purchase goods or services as set forth in section 40.003(13) of the Business and Commerce
Code, so as to constitute a 'sales presentation."' Request Letter, supra note 1, at 2 (question 5).
The term "sales presentation" is an element of the term "contest." See TEX. Bus. & COM. CODE
ANN. 40.003(a)(1) (Vernon 2002). The Act also uses the term in provisions governing gift
giveaways, matched contests, and contests. See, e.g., id., 40.006, 40.035, 40.064-.066.
2Although you inform us that the business's agents register key-holders before "testing their keys in the 'prize
vehicle,'" Request Letter, supra note 1, at 1, you have not asked whether such registration generates an "entry form"
within the meaning of the Act.(GA-0133)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0133, text, January 13, 2004; (https://texashistory.unt.edu/ark:/67531/metapth275029/m1/4/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.