Can the Texas Lottery Commission run a raffle-style game?

TX AG Opinion GA-0592: Can the Texas Lottery Commission run a raffle-style game?

Plain-English summary

The Chair of the Texas Lottery Commission asked whether the commission could offer a raffle-style game. As described, tickets would be sold at licensed lottery retailers connected to the commission's computer system, and each ticket would be tied to a specific drawing date. The twist that made it raffle-like was that there would be no duplicate tickets and only a limited number of tickets, so a winner would never have to split a prize with someone holding the same numbers.

The Attorney General concluded the commission may not do this. The Texas Constitution, in article III, section 47(a), directs the Legislature to prohibit lotteries and gift enterprises, with only three exceptions written into the Constitution: charitable bingo (subsection (b), approved in 1980), charitable raffles conducted by qualified religious societies, volunteer fire departments, emergency medical services, and nonprofits (subsection (d), adopted in 1989), and the state lottery (subsection (e), approved in 1991). The state lottery is run under the State Lottery Act, with the Texas Lottery Commission supervising it. The question was whether a raffle-style game fits within the "state lottery" the voters authorized in 1991.

Drawing on its 2003 opinion analyzing the term, the office explained that "lottery" in subsection (e) is narrower than in subsection (a), and is read according to what voters understood "state lottery" to mean in 1991. A lottery has three elements: a prize, awarded by chance, for consideration. But the common 1991 understanding of "state lottery" did not embrace a raffle, which by ordinary definition sells numbered tickets so prizes are never shared. A stronger clue was timing: voters had adopted the separate charitable-raffle amendment just two years before, in 1989, so they are presumed to have understood that "raffle" and "lottery" are different things. Nothing in the legislative history, the common meaning of the terms, or the ballot language for subsection (e) suggested that the Legislature or the voters meant to fold a raffle into the term "state lottery." Because a raffle is not authorized by any exception to the section 47(a) prohibition on lotteries and gift enterprises, the commission may not operate a raffle-style game as described, nor may it contract with a private entity to operate one on the state's behalf.

Currency note

This opinion was issued in 2008. 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.

Article III, section 47 of the Texas Constitution, the State Lottery Act (Government Code chapter 466), and the related case law cited here may have changed since 2008. Confirm the current constitutional and statutory text before relying on this analysis.

Who this opinion affected (as of 2008)

The Texas Lottery Commission: The opinion told the commission it could not add a raffle-style game to its offerings, because such a game fell outside the "state lottery" the voters authorized in 1991 and outside every other constitutional exception to the lottery ban.

Private lottery vendors and contractors: The opinion made clear the commission could not get around the limit by contracting with a private company to run a raffle-style game on the state's behalf.

Charitable organizations and the public: The opinion reinforced that raffles in Texas are a separate, constitutionally distinct category (charitable raffles under subsection (d)) from the state lottery, run by qualified nonprofits rather than the state.

Common questions

Why can't the state lottery just run a raffle?
Because the constitutional exception that authorizes the state lottery (subsection (e)) was understood in 1991 to mean a "lottery," not a "raffle." The opinion found no indication the voters meant to include raffles in that term, especially since they had approved a separate charitable-raffle amendment two years earlier.

What makes the proposed game a "raffle" rather than a lottery?
The described game had no duplicate tickets and a limited number of tickets, so prizes would never be shared. That matches the ordinary meaning of a raffle (selling numbered tickets), which the opinion distinguished from a lottery.

Could a private company run the raffle for the state instead?
No. The opinion concluded the commission may not contract with a private entity to operate a raffle-style game on the state's behalf, because the game is not authorized by any exception to the section 47(a) ban.

Background and statutory framework

Article III, section 47(a) requires the Legislature to prohibit lotteries and gift enterprises except those authorized by subsections (b), (d), and (e) (Tex. Const. art. III, § 47(a)). Subsection (b) (1980) permits charitable bingo, with subsection (c) directing certain statutory provisions; subsection (d) (1989) permits charitable raffles by qualified organizations; and subsection (e) (1991) permits the state to operate lotteries or contract for their operation (id. § 47(b)-(e)). The Legislature enacted the State Lottery Act in 1993 and created the Texas Lottery Commission to supervise it (Act of Apr. 28, 1993, 73d Leg., R.S., ch. 107, § 4.03, 1993 Tex. Gen. Laws 195, 205; Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299; Tex. Gov't Code Ann. § 467.101(a)).

A lottery has three elements: a prize, awarded by chance, for consideration, with chance the essential element (City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 701 (Tex. 1936)). The office's 2003 opinion read "lottery" in subsection (e) according to the common 1991 understanding of "state lottery," which did not include a raffle. Constitutional provisions are interpreted in light of conditions at adoption, and because voters approved the charitable-raffle amendment in 1989, just before the 1991 state-lottery amendment, they are presumed aware of the difference between the two terms (Mumme v. Mars, 40 S.W.2d 31, 35 (Tex. 1931)). Texas case law has long distinguished a raffle, in which all tickets are sold and someone must win, from a lottery (Risien v. State, 71 S.W. 974, 975-76 (Tex. Crim. App. 1903)).

Citations

Statutes:

• Tex. Const. art. III, § 47(a), (b), (c), (d), (e)
• Tex. Gov't Code Ann. § 467.101(a) (Vernon 2004)
• Act of Apr. 28, 1993, 73d Leg., R.S., ch. 107, § 4.03, 1993 Tex. Gen. Laws 195, 205
• Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299

Cases:

• City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 701 (Tex. 1936)
• Mumme v. Mars, 40 S.W.2d 31, 35 (Tex. 1931)
• Risien v. State, 71 S.W. 974, 975-76 (Tex. Crim. App. 1903)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0592
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0592.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 17, 2008

Mr. James A. Cox, Jr.
Chair, Texas Lottery Commission
Post Office Box 16630
Austin, Texas 78761-6630

Opinion No. GA-0592

Re: Whether the Texas Lottery Commission may operate a raffle-style game (RQ-0602-GA)

Dear Mr. Cox:

You ask whether the Texas Lottery Commission may operate a raffle-style game. You describe such a game in the following terms:

Tickets would be sold at licensed lottery retail locations that have access to a computer system that administers play, and plays would be for a specified drawing date. A raffle-style game would differ from the on-line games currently offered by the commission in that there could be no duplicate tickets and in that there would be a limited number of tickets available. These are the features that make the game more like a traditional raffle.[1]

Article III, section 47(a) of the Texas Constitution requires the Legislature to pass laws "prohibiting lotteries and gift enterprises in this State other than those authorized by Subsections (b), (d), and (e) of this section." TEX. CONST. art. III, § 47(a) (emphasis added). Subsection (b), approved by the voters in 1980, permits the Legislature to "authorize and regulate bingo games conducted by a church, synagogue, religious society, volunteer fire department, nonprofit veterans organization, fraternal organization, or nonprofit organization supporting medical research or treatment programs."[2] Id. § 47(b). Subsection (d), adopted in 1989, provides in relevant part:

The Legislature by general law may permit charitable raffles conducted by a qualified religious society, qualified volunteer fire department, qualified voluntary emergency medical service, or qualified nonprofit organizations under the terms and conditions imposed by general law.

Id. § 47(d). Finally, subsection (e), approved in 1991, permits the Legislature to "authorize the State to operate lotteries and may authorize the State to enter into a contract with one or more legal entities that will operate lotteries on behalf of the State." Id. § 47(e). In 1993 the Legislature enacted the State Lottery Act, chapter 466 of the Government Code, to provide for the operation of the state lottery. See Act of Apr. 28, 1993, 73d Leg., R.S., ch. 107, § 4.03, 1993 Tex. Gen. Laws 195, 205. The same legislative session also established the Texas Lottery Commission to "exercise strict control and close supervision over all activities authorized and conducted in this state under," inter alia, the State Lottery Act. Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299, 1299 (now codified as TEX. GOV'T CODE ANN. § 467.101(a) (Vernon 2004)).

In a 2003 opinion, we considered the meaning of the term "lottery" for purposes of article III, section 47(a). See Tex. Att'y Gen. Op. No. GA-0103 (2003). In reviewing the historical development of the term, we noted that the Texas Constitution of 1845 and all subsequent constitutions have included a prohibition against lotteries. See id. at 3. We then quoted a Texas Supreme Court case that articulated the three elements necessary to constitute a lottery: "[1] the offering of a prize, [2] the award of the prize by chance, and [3] the giving of a consideration for an opportunity to win the prize." Id. (quoting City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 701 (Tex. 1936)). We pointed out that the court declared that of the three, "'chance' is the [element that] constitutes the very basis of a lottery, and without which [a game] would not be a lottery." Id. (quoting City of Wink, 100 S.W.2d at 701).

Attorney General Opinion GA-0103 then focused upon the significance of the term "lottery" for purposes of subsection (e), article III, section 47, and concluded that its meaning for purposes of subsection (e) is much more limited than under subsection (a). See id. at 4. We first described the common understanding of the term "lottery" in 1991, when the amendment was approved by the voters. Id. at 5-6. We then considered the actual ballot language presented to the electorate. Id. at 6. Finally, we reviewed Attorney General Opinion DM-302, a near-contemporaneous administrative construction of subsection (e) that had found that the voters who adopted subsection (e) did not thereby intend to permit the operation of slot machines. Id. at 7. Because video lottery terminals were not within the contemplation of those voters who approved a "state lottery" in 1991, we concluded that, under subsection (e), the Legislature was not authorized to permit the state to operate video lottery terminals as part of the state lottery. Id. at 8-9.

An analysis of the question you pose points to a similar conclusion. As you acknowledge in your letter, a raffle-style game differs from the kind of game approved as a "state lottery" in 1991: there would be no duplicate tickets and there would be a limited number of tickets available. See Request Letter, supra note 1, at 2. This lack of duplicate tickets would mean that if an individual held the winning ticket, he or she need not fear sharing the prize with one or more other persons. The common understanding of the term "state lottery" in 1991 did not embrace the concept of a "raffle-style" game. A "raffle," in lay terms, is "a means of raising money by selling numbered tickets." NEW OXFORD AMERICAN DICTIONARY 1405 (2001) (emphasis added). The concept of "numbered" tickets accords with your explanation that there would be no duplicate tickets. Prizes would therefore never be shared.[3]

But a more obvious clue points to a voter intent not to include "raffle" or "raffle-style" games within the meaning of "state lottery" in subsection (e). Only two years earlier, Texas voters had adopted article III, section 47(d) of the Texas Constitution, the charitable raffle amendment. The electorate must be presumed, therefore, to have been aware of the difference between the two terms. See Mumme v. Mars, 40 S.W.2d 31, 35 (Tex. 1931) ("Constitutional provisions, like statutes, are properly to be interpreted in the light of conditions existing at the time of their adoption ...."). Nothing in the legislative history, the common understanding of the two terms, or the ballot proposition that offered subsection (e) indicates that either the Legislature that proposed it, or the voters who endorsed it, intended to include a "raffle" or "raffle-style" game within the ambit of the term "state lottery."

Because a raffle is not authorized by any exception to the article III, section 47(a) prohibition against "lotteries and gift enterprises," we conclude that the Texas Lottery Commission may not operate a "raffle-style" game, as you have described it, nor may it enter into a contract with a private entity to operate such a game on behalf of the state.

SUMMARY

The Texas Lottery Commission may not operate a "raffle-style" game, nor may it enter into a contract with a private entity to operate such a game on behalf of the state.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Mr. James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney General of Texas, at 2 (July 16, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Subsection (c) of article III, section 47, requires the Legislature to include certain provisions within the statute authorizing bingo games.

[3] This accords with the distinction drawn between a lottery and a raffle in Risien v. State, 71 S.W. 974 (Tex. Crim. App. 1903): "If it [the scheme described] had been a lottery, unless all the tickets had been sold, and there had been but the one prize, the keeper or exhibitor of the lottery may not have disposed of all the tickets representing the prize, and so he would have retained both the money and the prize. But here, in the raffle, all the tickets were disposed of, and some one was bound to win the prize. This, it occurs to us, is another distinction between a raffle and a lottery." Id. at 975-76.