Could a company legally broadcast a televised bingo game like BingoTV in Texas without a state bingo license?

TX AG Opinion GA-0248: BingoTV Not Legal in Texas

Plain-English summary

The Texas Lottery Commission asked whether the Bingo Enabling Act allowed the Bingo TVNet Corporation to operate "BingoTV" in Texas, and separately whether BingoTV counted as a legal sweepstakes. BingoTV was a free promotional bingo broadcast on a Dish Network channel, sponsored by advertisers whose products were tied to the game, with viewers also able to play online at the same time as the broadcast. Players got game cards for free by mail, marked them at home, and called a toll-free number to claim a win, with the first validated bingo ending the round.

The opinion concluded BingoTV met the legal definition of "bingo" under the Occupations Code, and since Bingo TVNet was not a licensed bingo operator, it needed to fit within one of the statute's specific unlicensed exemptions to operate legally. The only plausible fit was the exemption for promotional games run by or through a television station, but BingoTV failed that exemption on two independent grounds: the statute doesn't authorize conducting bingo online at all, and BingoTV's television broadcast wasn't actually open to the general public since only Dish Network subscribers could watch it, so the corporation couldn't rely on the online option to fill that gap. On the second question, the opinion found no Texas sweepstakes statute, including the mail-order sweepstakes law and several narrower sweepstakes provisions, that applied to what BingoTV was doing, so it had no legal basis to call itself a "sweepstakes" either.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

The Bingo TVNet Corporation: The opinion concluded the corporation could not legally conduct BingoTV in Texas without a bingo license, because its combined television-and-online format did not satisfy the promotional exemption's requirements that the game be conducted only by the exempted broadcast method and be genuinely open to the general public.

The Texas Lottery Commission: The opinion gave the Commission, which administers the Bingo Enabling Act, a basis to treat BingoTV as unlicensed and unauthorized bingo activity, and confirmed that the Commission's existing rule on exemptions from bingo licensing did not separately address the promotional exemption BingoTV tried to invoke.

Businesses considering promotional bingo or sweepstakes-style broadcasts in Texas: The opinion illustrated how narrowly the Bingo Enabling Act's promotional exemption applies: adding an online participation option, or limiting the broadcast to a subscription satellite audience, could each independently defeat the exemption, and no general Texas sweepstakes law covered a game structured like BingoTV.

Common questions

Did offering game cards for free make BingoTV exempt from Texas bingo licensing?
No. The opinion found that BingoTV still met the statutory definition of "bingo" (a game of chance where prizes go to designated numbers matched from a random draw) regardless of whether players paid anything to participate, so the free-cards format alone didn't avoid the Bingo Enabling Act.

Why didn't BingoTV qualify for the promotional games exemption that lets businesses run bingo on TV or radio without a license?
Because BingoTV didn't satisfy all of that exemption's conditions. The opinion found two separate problems: the exemption doesn't cover bingo conducted online at all, and BingoTV's television broadcast wasn't open to the general public since it only reached Dish Network subscribers, so the corporation couldn't point to online availability to make up for that.

Was BingoTV a legal sweepstakes even if it wasn't legal bingo?
No. The opinion reviewed Texas's mail-order sweepstakes statute and several narrower sweepstakes provisions in the Alcoholic Beverage Code and Utilities Code and found none of them applied to BingoTV as described, so the opinion found no basis for calling it a legal sweepstakes under any Texas law.

Background and statutory framework

Article III, section 47 of the Texas Constitution generally required the legislature to prohibit lotteries and gift enterprises, with narrow exceptions the legislature could authorize and regulate for charitable bingo, charitable raffles, and the state lottery, subject to reporting requirements and civil and criminal penalties. Under that authority, the legislature adopted the Bingo Enabling Act, Occupations Code chapter 2001, and charged the Texas Lottery Commission with administering it, including licensing persons to conduct bingo for charitable purposes and penalizing those who conduct bingo unlawfully.

Section 2001.551(a) defined "bingo" broadly as a game of chance in which prizes are awarded based on designated numbers or symbols on a card matching numbers or symbols drawn at random, regardless of whether a player pays anything to participate. Section 2001.551(b) made it an offense to conduct, promote, or administer bingo except under a license, or within several narrow exemptions: bingo played at home for nominal prizes, bingo run by certain senior citizens' organizations under nominal-value conditions, and bingo conducted by a business for promotional or advertising purposes, but only if the game runs through a newspaper, radio, or television station, is open to the general public rather than limited to the business's customers, materials are free on request, and no player has to pay to participate.

BingoTV, as described by Bingo TVNet, fit the general definition of bingo and was not licensed, so it needed to qualify for one of the exemptions. The home-use and senior-organization exemptions plainly didn't apply. The promotional exemption was the only realistic candidate, since BingoTV ran through a television station, but the opinion identified two independent defects. First, the exemption's text only covers games run through a newspaper, radio, or television station; it says nothing authorizing bingo conducted online, and BingoTV was also played online simultaneously with the broadcast, a method the statute simply didn't reach. Second, the exemption requires that participation be open to the general public, not limited to a particular audience, but BingoTV's broadcast reached only Dish Network subscribers, so the television portion of the game was not genuinely open to the general public, and the corporation could not cure that by pointing to the separate online option. The opinion noted this presented largely novel questions: a line of older cases and attorney general opinions had found earlier forms of televised promotional bingo were not unconstitutional lotteries, but none of them, and no judicial decision or prior opinion, had construed the specific promotional exemption at issue, and the Commission's own rule on unlicensed bingo exemptions didn't address it either.

On the separate sweepstakes question, the opinion looked at Business and Commerce Code chapter 45, which regulates sweepstakes conducted through the mail, and concluded it did not reach BingoTV as described. It also reviewed narrower sweepstakes-related provisions in the Alcoholic Beverage Code, governing sweepstakes by certain permit holders, and the Utilities Code, protecting consumers from deceptive sweepstakes tied to changing telecommunications providers, and found neither relevant to BingoTV's format. With no applicable statute recognizing BingoTV as a lawful sweepstakes, the opinion concluded there was no basis to treat it as one.

Citations

Statutes:

• TEX. CONST. art. III, § 47
• TEX. CONST. art. III, § 47(b)
• TEX. CONST. art. III, § 47(c)
• TEX. OCC. CODE ANN. §§ 2001.001, .051 (Vernon 2004)
• TEX. OCC. CODE ANN. §§ 2001.102(9), .454, .551
• TEX. OCC. CODE ANN. § 2001.551(a) (Vernon 2004)
• TEX. OCC. CODE ANN. § 2001.551(b)
• TEX. OCC. CODE ANN. § 2001.551(c) (Vernon 2004)
• TEX. OCC. CODE ANN. § 2001.551(b)(4)(A) (Vernon 2004)
• TEX. OCC. CODE ANN. § 2001.551(b)(4)(B)
• TEX. OCC. CODE ANN. § 2001.551(f)
• 16 TEX. ADMIN. CODE § 402.549 (2004)
• TEX. BUS. & COMM. CODE ANN. §§ 45.001(7), .002 (Vernon Supp. 2004-05)
• TEX. ALCO. BEV. CODE ANN. § 102.07(e) (Vernon Supp. 2004-05)
• TEX. UTIL. CODE ANN. §§ 17.102, 64.102 (Vernon Supp. 2004-05)

Cases:

• State v. Socony Mobil Oil Co., 386 S.W.2d 169 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0248
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0248.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 13, 2004

Mr. C. Tom Clowe Jr.
Chair, Texas Lottery Commission
Post Office Box 16630
Austin, Texas 78761-6630

Opinion No. GA-0248

Re: Whether the Bingo TVNet Corporation may legally conduct BingoTV within the State of Texas (RQ-0198-GA)

Dear Mr. Clowe:

You ask whether Occupations Code chapter 2001, which provides for regulating bingo, authorizes or prohibits the operation in Texas of BingoTV as described by the Bingo TVNet Corporation in the letter attached to your request. You also ask whether the activity described by the Bingo TVNet Corporation is a legal "sweepstakes" under Texas law. See Request Letter, supra note 1.

The Bingo TVNet Corporation writes that "BingoTV is a broadcast promotion sponsored by the Bingo TVNet Corporation, and presently delivered via Dish Network channel 104," available free of charge to all Dish Network subscribers. Bahr Letter, supra note 2, at 1. Persons not subscribing to Dish Network may play online simultaneously with persons receiving the broadcast. Id. at 2. "There is no purchase necessary to play BingoTV. Members of the public can obtain game cards without charge by sending a stamped self addressed envelope to a designated post office box." Id. at 1. "Viewers mark their cards with pennies or other household items." Id. The letter from the Bingo TVNet Corporation further states:

BingoTV will conduct the [g]ame using 99 numbered balls, which are selected randomly from an approved bingo device. Viewers who successfully complete the designated pattern call a toll free number within two minutes after having achieved "bingo". The bingo is validated by computer using a unique serial number which appears on the cards' face. Multiple winners will each win the same prize.

Once the first bingo is validated, no further numbers will be called. Various cash and merchandise prizes will be offered from game to game and the prizes will vary in nature and value over time. Online winners will also call the toll free number to register their claims of bingo.

Id. at 1-2.

Information from BingoTV's internet site explains the promotional aspect of the bingo broadcast as follows:

Each of our Bingo Games is title sponsored by one key advertiser. In each case, the game revolves around the advertised product. First, the bingo pattern which viewers need to achieve shall be connected with the product. "We're playing for a new [vehicle], and our bingo pattern is the letter ['V].'' The advertised product will appear on the BingoTV stage. Our hosts will physically demonstrate key features, while spokespeople and advertiser executives are given the opportunity to appear on camera with the BingoTV hosts to discuss the product.

BINGO TV, About BingoTV, available at http://www.bingotv.com/about.html (last visited Sept. 7, 2004). BingoTV, designed to address the problem of audience loss during commercials, is a vehicle "in which products are the program." Id.

Article III, section 47 of the Texas Constitution provides that "[t]he Legislature shall pass laws prohibiting lotteries and gift enterprises in this State," subject to limited exceptions for charitable bingo, charitable raffles, and the state lottery. TEX. CONST. art. III, § 47. See Tex. Att'y Gen. Op. Nos. GA-0103 (2003) at 1, JC-0482 (2002) at 5. Section 47(b) provides that the legislature may "authorize and regulate bingo games conducted" by various religious, fraternal, and charitable organizations. TEX. CONST. art. III, § 47(b); see also id. § 47(c) (legislation authorizing bingo must include certain reporting requirements and civil and criminal penalties). The legislature has adopted the Bingo Enabling Act (the "Act") and charged the Texas Lottery Commission (the "Commission") with administering it. See TEX. OCC. CODE ANN. §§ 2001.001, .051 (Vernon 2004). The Act provides for licensing persons to conduct bingo for charitable purposes and for penalizing persons who unlawfully conduct, promote, or administer bingo. See id. §§ 2001.102(9), .454, .551.

You state that the first question should focus on section 2001.551 of the Occupations Code, which defines the offense of conducting, promoting, or administering unlawful bingo and provides that it is a third degree felony. "Bingo" is defined for purposes of section 2001.551 as

a specific game of chance, commonly known as bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random, whether or not a person who participates as a player furnishes something of value for the opportunity to participate.

Id. § 2001.551(a) (emphasis added). BingoTV, as described by the Bingo TVNet Corporation, is "bingo" within the quoted definition.

Section 2001.551(b) addresses bingo offenses and provides that:

(b) A person conducting, promoting, or administering bingo commits an offense if the person conducts, promotes, or administers bingo other than:

(1) under a license issued under this chapter;

(2) within the confines of a home for purposes of amusement or recreation when:

(C) the prizes awarded or to be awarded are nominal;

(3) on behalf of an organization of individuals 60 years of age or over, a senior citizens' association [and other specific groups listed in the statute] when:

(A) no player or other person furnishes anything of more than nominal value for the opportunity to participate; and

(B) the prizes awarded or to be awarded are nominal; or

(4) on behalf of a business conducting the game for promotional or advertising purposes if:

(A) the game is conducted by or through a newspaper or a radio or television station;

(B) participation in the game is open to the general public and is not limited to customers of the business;

(C) playing materials are furnished without charge to a person on request; and

(D) no player is required to furnish anything of value for the opportunity to participate.

Id. § 2001.551(b). See also id. § 2001.551(f) (game exempted under subsection (b)(4) is subject to additional provisions relating to the involvement of persons licensed under chapter 2001, the purchase and sale of bingo equipment or supplies, and information to be provided to the Commission).

The Bingo TVNet Corporation is not licensed to conduct bingo in Texas, see Request Letter, supra note 1, and is therefore not within section 2001.551(b)(1). A game exempted by the other provisions of section 2001.551(b) need not be licensed under chapter 2001. See TEX. OCC. CODE ANN. § 2001.551(c) (Vernon 2004). Subsections (b)(2) and (3) do not apply to BingoTV. Because BingoTV is conducted "for promotional or advertising purposes . . . by or through a . . . television station," see id. § 2001.551(b)(4)(A), we will consider whether it qualifies for exemption under subsection (b)(4).

This question raises novel issues. The court in State v. Socony Mobil Oil Co., 386 S.W.2d 169 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.) and several attorney general opinions, see Tex. Att'y Gen. Op. Nos. M-481 (1969); C-108 (1963); WW-1421 (1962); WW-652 (1959), concluded that various forms of televised promotional bingo were not lotteries within article III, section 47, but BingoTV has complexities not addressed by these rulings. We have found no judicial decision or attorney general opinion that construes section 2001.551(b)(4). Nor does the Commission's rule on exemptions from licensing requirements refer to the exemption authorized by subsection (b)(4). See 16 TEX. ADMIN. CODE § 402.549 (2004) (requirements for a group or organization conducting bingo without a license).

While BingoTV is conducted "by or through a . . . television station," TEX. OCC. CODE ANN. § 2001.551(b)(4)(A) (Vernon 2004), it is also conducted online, a method of communication not authorized by subsection (b)(4). Thus, BingoTV as described by the Bingo TVNet Corporation does not comply with subsection (b)(4).

Section 2001.551(b)(4)(B) requires "participation in the game . . . [to be] open to the general public and . . . not limited to customers of the business." Id. § 2001.551(b)(4)(B). Participation in BingoTV is not limited to customers of the businesses whose products are advertised during a bingo game, nor is it limited to customers of the Bingo TVNet Corporation. However, participation in the game is not open to the general public, because BingoTV is available on television only to subscribers to Dish Network. The Bingo TVNet Corporation may not conduct bingo online. See id. § 2001.551(b)(4) (no authority to conduct bingo online without a license). Thus, the corporation cannot claim that BingoTV is available to the general public because it can be played online. BingoTV therefore does not comply with subsection (b)(4)(B). In answer to your first question, we conclude that BingoTV fails to comply with certain of the conditions forming the exemption provided by section 2001.551(b)(4) of the Occupations Code. Accordingly, the Bingo Enabling Act does not authorize the Bingo TVNet Corporation to conduct BingoTV in Texas.

You also ask whether BingoTV is a legal "sweepstakes" under Texas law. Business and Commerce Code chapter 45, which regulates "sweepstakes" conducted through the mail, defines "sweepstakes" for purposes of chapter 45 as "a contest that awards one or more prizes based on chance or the random selection of entries." See TEX. BUS. & COMM. CODE ANN. §§ 45.001(7), .002 (Vernon Supp. 2004-05) (prohibitions on conducting sweepstakes through the mail). Based on the information provided by the Bingo TVNet Corporation, chapter 45 is not relevant to BingoTV. While other Texas statutes relate to particular kinds of sweepstakes, none of these appear to be relevant to BingoTV, as described in this opinion. See, e.g., TEX. ALCO. BEV. CODE ANN. § 102.07(e) (Vernon Supp. 2004-05) (conduct of certain sweepstakes by certain permit holders); TEX. UTIL. CODE ANN. §§ 17.102, 64.102 (Vernon Supp. 2004-05) (protection of consumers from deceptive practices, including sweepstakes, that may cause consumers to unknowingly change their telecommunications service provider). We have no basis for concluding that BingoTV is a legal "sweepstakes" under any Texas law.

SUMMARY

The Bingo Enabling Act, Texas Occupations Code chapter 2001, does not authorize the Bingo TVNet Corporation to conduct BingoTV in Texas. BingoTV is not a legal "sweepstakes" within any Texas law.

Very truly yours,

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Mr. C. Tom Clowe Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Texas Attorney General (Mar. 17, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Letter from Mr. Ira Bahr, President, Bingo TVNet Corporation, to Mr. William Adkins, Director, Bingo Division, Texas Lottery Commission (Feb. 3, 2004) (attached to Request Letter) [hereinafter Bahr Letter].