Did free newspaper and television promotional games using randomly selected bingo-style numbers violate the Texas Bingo Enabling Act, and did federal broadcasting law preempt the state rule?

TX AG Opinion JM-646: Did free promotional bingo games violate state law?

Plain-English summary

The Comptroller asked about three newspaper promotions and a television game show called variants of "Wingo," "Bingo," or "Banko." They used bingo-like formats to promote circulation or customer traffic, distributed game materials for free, and did not require a purchase to win.

The opinion emphasized that former article 179d, §39 defined the criminally regulated game to include prize awards based on randomly selected numbers or symbols "whether or not" the player furnished anything of value. That language distinguished the Bingo Enabling Act offense from the general lottery offense, which required consideration from the participant.

Because the Comptroller had determined that the promotions were bingo within §39, they had to comply with its licensing rule unless one of the limited home, senior-citizen, hospital, nursing-home, or retirement-home exceptions applied. The absence of an entry fee did not by itself make the games lawful. Whether a particular operator committed a felony still depended on proof of every element of the offense.

Federal law prohibited broadcasting or mailing certain lottery information but, under federal cases, did not reach free giveaways lacking participant consideration. The opinion concluded that Congress had not occupied the entire field of lottery and giveaway criminal law. Texas could prohibit the underlying unlicensed bingo game even though federal law did not prohibit its broadcast or mailing.

Currency note

This opinion was issued in 1987 under former article 179d and historical federal communications statutes. Texas gaming law, licensing exceptions, offense classifications, and federal broadcasting rules may have changed. Treat the opinion as historical context and verify current law before running or promoting a game.

What the opinion said for affected groups in 1987

Newspapers and television stations

A free entry method did not remove a bingo-format promotion from §39. An unlicensed game was unlawful unless an express exception applied.

Promotional-game participants

Players did not have to furnish money or other value for the state bingo prohibition discussed in the opinion to apply.

Regulators and prosecutors

The opinion treated the game's statutory format and licensing status as decisive, while recognizing that criminal liability required proof of all offense elements.

Broadcasters

Federal law did not preempt Texas from prohibiting the underlying promotional game merely because federal broadcasting law did not prohibit free giveaways.

Common questions

Was consideration required under the Bingo Enabling Act offense?
No. Section 39 expressly applied whether or not a player furnished something of value.

Were all private bingo games criminal?
No. The statute contained narrow exceptions for specified small home games and recreational games for certain senior or institutional groups.

Did federal law prohibit broadcasting every free giveaway?
No. The federal cases discussed in the opinion held that the relevant statute did not reach giveaways lacking participant consideration.

Did that federal rule make the Texas game lawful?
No. The opinion found no federal policy protecting such promotions and no preemption of the state prohibition.

Background and legal framework

Article III, §47 of the Texas Constitution required laws against lotteries and gift enterprises while permitting the Legislature to authorize and regulate bingo for specified organizations. The Bingo Enabling Act implemented that authorization.

Article 179d, §39 defined bingo for the offense provision and made conducting, promoting, or administering an unlicensed game a third-degree felony unless a stated exception applied. Its express removal of player consideration controlled the state-law analysis.

Title 18 U.S.C. §1304 prohibited specified lottery broadcasts, while §1302 addressed lottery matter in the mails. Federal Communications Commission v. American Broadcasting Company held that free giveaway programs were outside §1304. The opinion nevertheless found that these federal provisions aided state lottery policy and did not displace state criminal law addressing conduct the federal statutes did not regulate.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. III, §47, lotteries and authorized bingo
• article 179d, V.T.C.S., Bingo Enabling Act
• V.T.C.S. art. 179d, §39, bingo offense and exceptions
• Penal Code §47.01(6), lottery definition discussed by the opinion
• 18 U.S.C. §§1302 and 1304, mailed and broadcast lottery information
• 47 U.S.C. §153(b) (1982), radio definition discussed for television

Principal cases:

• Brice v. State, 242 S.W.2d 433 (Tex. Crim. App. 1951), consideration in the lottery offense
• State v. Socony Mobil Oil Company, 386 S.W.2d 169 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.), federal broadcast preemption
• Federal Communications Commission v. American Broadcasting Company, 347 U.S. 284 (1954), free giveaway programs
• Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (1963), state regulation affecting a federal licensee
• New York State Broadcasters Assn. v. United States, 414 F.2d 990 (2d Cir. 1969), purpose and scope of §1304
• Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978), federal permission versus protected federal policy

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0646
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0646.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

JIM MATTOX
ATTORNEY GENERAL

March 17, 1987

Honorable Bob Bullock Opinion No. JM-646

Comptroller of Public Accounts

L.B.J. Building Re: Whether certain "give away"

Austin, Texas 78774 promotional games violate the

Bingo Enabling Act

Dear Mr. Bullock:

You have asked about the legality of three games conducted by newspapers in the pages of their publications and one to be broadcast as a television game show for viewer participation. Each of them (variously called "Wingo," "Bingo," or "Banko") uses a format similar to that of a bingo game. The games are designed to promote newspaper circulation or to increase patron-traffic on behalf of local businesses. Free game materials are made available to potential players and it is not necessary to purchase anything to win.

The Texas Constitution requires the legislature to enact laws prohibiting "lotteries" and "gift enterprises." Tex. Const. art. III, §47. A 1980 amendment to that provision allows the legislature to authorize bingo games under certain circumstances:

(b) The Legislature by law may 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. . . . (Emphasis added).

Generally, the Bingo Enabling Act, article 179d, V.T.C.S., seeks to implement a constitutionally-contemplated regulatory scheme for legalized bingo games. A bingo game is defined by section 2(2) of article 179d to mean

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.

The definition of a bingo game is given more detail by section 39 of the Bingo Enabling Act -- the part of the statute that makes the conduct, promotion, or administration of an unlawful bingo game a crime. It reads:

(a) For the purposes of this section, 'bingo' or 'game' means 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.

(b) Any person conducting, promoting, or administering a game commits a felony of the third degree unless the person is conducting, promoting, or administering a game:

(1) in accordance with a valid license issued under this Act;

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

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

(B) participation in the game does not exceed 15 players; and

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

(3) on behalf of an organization of persons 60 years of age or over, a senior citizens' association, or the patients in a hospital or nursing home or residents of a retirement home solely for the purpose of amusement and recreation of its members, residents, or patients, 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.

(c) This section applies to all political subdivisions regardless of local option status.

(d) A game exempted by Subdivision (2) or (3) of Subsection (b) of this section does not need to be licensed. (Emphasis added).

V.T.C.S. art. 179d, §39. Your office has determined that the games in question constitute "bingo" within the meaning of section 39.

In light of the concluding words of subsection (a) of section 39, it is unnecessary to review cases decided under other laws that deal with the use of advertising or merchandising promotions having a "bingo," "gift enterprise," or "lottery" format. See Brice v. State, 242 S.W.2d 433 (Tex. Crim. App. 1951); see also State v. Socony Mobil Oil Company, 386 S.W.2d 169 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.); Hoffman v. State, 219 S.W.2d 539 (Tex. Civ. App. - Dallas 1949, no writ); Attorney General Opinion JM-513 (1986). The payment of consideration, directly or indirectly by the participant, is an essential element of the lottery offense under the Penal Code. See Penal Code §47.01(6); Brice v. State, 242 S.W.2d at 434-35; Attorney General Opinion JM-513 (1986). The effect of the last clause of subsection (a) of section 39 is to remove the element of consideration from the specific criminal offense described in subsections (a) of section 39, i.e., the conduct, promotion, or administration of a "bingo" game as defined in subsection (a). Since you have determined that the games about which you inquire actually constitute "bingo" within the meaning of section 39, they must be conducted in compliance with subsection (b) regardless of whether a person who participates as a player furnishes something of value for the opportunity to participate. Subsection (b) requires that a valid license be obtained if the game in question fails to fall within two limited exceptions. Whether the conduct, promotion, or administration of these games without a license actually constitutes a third degree felony also depends upon proof of all of the other elements of a criminal offense. Because some of these games are conducted over television, you also ask whether federal law preempts the Bingo Enabling Act.

Section 1304 of Title 18 of the United States Code provides:

Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Each day's broadcasting shall constitute a separate offense.

"Radio" broadcasting in this context includes television broadcasting. See 47 U.S.C. §153(b) (1982); Allen B. Dumont Laboratories v. Carroll, 184 F.2d 153 (3rd Cir. 1950), cert. denied, 340 U.S. 929 (1951).

The San Antonio Court of Civil Appeals in State v. Socony Mobil Oil Company, 386 S.W.2d 169 (Tex. Civ. App. - San Antonio 1964, writ ref'd n.r.e.), citing 18 U.S.C. §1304, considered whether an injunction could be granted prohibiting the broadcast of a "TV-Bingo" game. The court concluded that even if the bingo-format promotional scheme at issue there was a "lottery" under Texas law, the state had no jurisdiction to enjoin the broadcast because Congress had "preempted the field of regulating the broadcasting of [it] over TV." 386 S.W.2d at 174.

The Socony Mobil holding would be in point if a promotional game with a bingo format were a "lottery, gift enterprise, or similar scheme" within the meaning of the federal statute whether or not a person who participates as a player furnishes something of value for the opportunity to participate. However, the federal statute does not reach "give away" programs. Federal Communications Commission v. American Broadcasting Company, 347 U.S. 284 (1954); Caples Co. v. United States, 243 F.2d 232 (D.C. Cir. 1957).

The precise act prohibited by section 1304 of Title 18 is the broadcasting of prohibited information or knowingly permitting its broadcast (by one operating a station). It was held in Federal Communications Commission v. American Broadcasting Company, supra, that "give away programs" requiring no movement of consideration from the participant were not lotteries, gift enterprises, or similar schemes within the meaning of section 1304. In part, the Supreme Court based its conclusion on a long standing administrative interpretation (by the Post Office Department) of the same language found in section 1302 of Title 18, which prevents the mailing of lottery tickets and related matters. Cf. Post Publishing Co. v. Murray, 230 F. 773 (1st Cir. 1916).

Thus, federal law does not punish the use of the mails or broadcasting facilities to conduct, promote or administer a bingo game if the person who participates as a player does not furnish something of value for the opportunity to participate. But the Texas Bingo Enabling Act does. Unless Congress has preempted the entire field of criminal laws relating to lotteries or "give away" promotions, the Texas law is enforceable. We do not believe it was the intent of Congress in enacting sections 1302 and 1304 to occupy the field of criminal law with respect to lotteries or "give away" schemes. Those statutes, in our opinion, do not preempt the operation of a state criminal law that reaches conduct nowhere addressed by a federal statute. Cf. United States v. Fesler, 781 F.2d 384 (5th Cir. 1986).

In Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (1963), the United States Supreme Court rejected a claim that a state restriction on radio advertising of optometry prices was invalid because, supposedly, the enactment of the Federal Communications Act preempted the field. Mr. Justice Brennan, concurring, said:

The New Mexico law is one designed principally to protect the state's consumers against a local evil by local application to forbid certain forms of advertising in all mass media. Such legislation, whether concerned with the health and safety of consumers, or with their protection against fraud and deception, embodies a traditional state interest of the sort which our decisions have consistently respected. (Citation omitted.) Nor is such legislation required to yield simply because it may in some degree restrict the activities of one who holds a federal license.

374 U.S. at 445. We believe the Texas ban on unlicensed bingo games presents an analogous situation. Cf. Attorney General Opinion MW-488 (1982).

The policy and scope of section 1304 was considered by the Second Circuit in 1969, a few years after the Head case was decided. In New York State Broadcasters Assn. v. United States, 414 F.2d 990 (2d Cir. 1969), the court held that section 1304 applies to the television broadcast of prohibited information about legal, state-sponsored lotteries as well as illegal ones. In determining the scope of the congressional enactment, the court stated:

In prohibiting the broadcasting of lottery information Congress was not acting in a vacuum; for more than one hundred years a prohibition on conducting a lottery by use of the mail facilities had existed. See 18 U.S.C. §§1302, 1303. Similarly, prohibitions on importation and interstate shipment of lottery material also existed when section 1304 was enacted. See 18 U.S.C. §1301. It is true that Congress has not attempted to prohibit the conduct of lotteries; with narrowly prescribed exceptions the states have done that. But Congress has exercised its power -- the existence of which petitioners concede -- to inhibit lotteries and to aid the states by denying lottery promoters access to facilities over which the federal government has control.

It is in this light that the Commission's action must be considered -- not as an exercise of the power to regulate broadcasting in the public interest necessitated by the nature and technology of broadcasting, but as enforcement of the clear congressional policy embodied in section 1304. (Emphasis added).

414 F.2d at 995.

The policy of the federal statute is to prohibit (in aid of the states) the broadcast of certain types of information; it is not one promoting the broadcast of whatever has not been specifically prohibited by federal law. The operation of state law to prevent the broadcast of "give away" programs is not at odds with any federal policy favoring such broadcasts. As the United States Supreme Court noted in Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978), a "conflict" found only in the possibility that a state statute would prevent an act that a federal statute would otherwise "permit" (but not protect as a policy matter) is not sufficient to warrant preemption. 437 U.S. at 131. Cf. King v. Gemini Food Services, Inc., 438 F. Supp. 964 (E.D. Va. 1976), aff'd per curiam, 562 F.2d 297 (4th Cir. 1977) (adopting district court's reasoning), cert. denied, 434 U.S. 1065 (1978); Vincent v. General Dynamics Corp., 427 F. Supp. 786 (N.D. Tex. 1977). In our opinion the Bingo Enabling Act is not preempted by federal law.

SUMMARY

The conduct, promotion, or administration of an unlicensed game in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random is illegal unless expressly excepted by the Texas Bingo Enabling Act, including, for example, games conducted, promoted, or administered by local newspapers and television stations even though persons who participate as players furnish nothing of value for the opportunity to participate.

Very truly yours,

JIM MATTOX

Attorney General of Texas

JACK HIGHTOWER

First Assistant Attorney General

MARY KELLER

Executive Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Bruce Youngblood

Assistant Attorney General

1. While sections 1304 and 1302 might preempt a state law which attempted to penalize the broadcast of the same lottery information condemned by the federal law, or which attempted to penalize the mailing of such lottery information, they do not preempt a state law that would prevent the production of the material which, if it were produced, might then be broadcast or mailed. Cf. Brooklyn Daily Eagle v. Voorhies, 181 F. 579 (E.D.N.Y. Cir. 1910).

2. The scope of section 1304 was further restricted by the Third Circuit in New Jersey State Lottery Commission v. United States, 491 F.2d 219 (3rd Cir. 1974), another case involving a state-sponsored lottery. Certiorari was granted by the Supreme Court in order to resolve the conflict created but the cause was remanded to determine mootness in the light of section 1307 of Title 18 (making section 1304 inapplicable to information about state-conducted lotteries), subsequently enacted. United States v. New Jersey State Lottery Commission, 420 U.S. 371 (1975).