X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Litigation No. 01-0779, 4/3/2003. Click here for the full text of this decision FACTS: The state of Texas seized, among other things, 20 gaming machines, commonly known as eight-liners, while executing a search warrant at Game Time Amusements in Burleson. Milton Wayne Hardy and Lovell Green Hardy, owners of Game Time Amusements, filed a petition seeking return of the seized items, contending that the state could not satisfy its burden to prove by a preponderance of evidence that eight-liners: 1. are illegal gambling devices under Texas Penal Code �47.01(4); and 2. are not protected from seizure by an exclusion to the term “gambling device” under �47.01(4)(B). After a hearing at which each side presented evidence, the trial court found that the seized eight-liners were illegal gambling devices and ordered their forfeiture. The court of appeals affirmed. HOLDING: Affirmed. The court agrees with the concurring opinion in the court of appeals that Texas Code of Criminal Procedure Article 18.18(f) unmistakably places the burden of proof at the show-cause hearing on the person found in possession of the allegedly illegal equipment. Although the court quoted those portions of Article 18.18 in State v. Rumfolo, 545 S.W.2d 752 (Tex. 1976), the court’s due process analysis focused on the notice and hearing provided to the claimants, rather than the state’s burden of proof at the show cause hearing. To the extent that Rumfoloconflicts with the court’s holding today, the court disapproves of it. While the court agrees with the court of appeals that the state bears an initial burden in a civil forfeiture proceeding, the court disagrees that article 18.18 places any burden on the state at the show cause hearing itself. Under the statutory scheme in article 18, the state’s initial burden is satisfied to the extent the state establishes probable cause for seizing the person’s property. Probable cause is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659 (Tex. 1987). “It is that link, or nexus, between the property to be forfeited and the statutorily defined criminal activity that establishes probable cause, without which the State lacks authority to seize a person’s property.” Once the state has established probable cause to initiate a forfeiture proceeding, the state has met its burden under article 18. At that point, the burden shifts to the claimant to prove that the property is not subject to forfeiture under article 18.18(f), which provides that, “unless the [interested person] proves by a preponderance of the evidence that the property or proceeds is not gambling equipment . . . the magistrate shall dispose of the property or proceeds . . . .” If the claimant fails to meet its burden of proof, the property will be destroyed or forfeited to the state. Additionally, if any interested person fails to appear at the show cause hearing, the property is automatically forfeited to the state. Thus, the ultimate burden of proof in an article 18.18 forfeiture proceeding is on the possessor of the property, not the state. In this case, the state met its threshold burden. Once the state satisfied the magistrate that it had probable cause for the warrant, the state’s burden was met. Accordingly, the burden then shifted to the Hardys to prove by a preponderance of the evidence that the seized machines were not illegal gambling devices subject to forfeiture. Having determined that the Hardys bore the burden of proof at the show cause hearing, the court turns to the second issue: whether the Hardys proved that the seized eight-liners were not gambling devices. Because the eight-liners at issue here rewarded the players with “cash” or its equivalent, the machines do not satisfy the �47.01(4)(B) exclusion. Additionally, the evidence established that a player could exchange his or her tickets for cash to be played on another machine. Players could take their tickets to an attendant who would then deposit either $1 or $5 in a machine, depending on whether the ticket was worth 100 or 500 points. This practice of exchanging tickets for cash also removes the machines from the �47.01(4)(B) exclusion. While additional play in itself is not proscribed, when that additional play is accomplished by providing cash to play other machines, the statutory exclusion is not satisfied. The exclusion requires that the machine at issue reward the player ” exclusivelywith noncash merchandise prizes, toys or novelties, or a representation of value redeemable for those items.” Under the statute, once cash is awarded, it does not matter whether the player deposited the cash directly into the machine or whether an attendant performed this task. Cash to be used for play on another machine is not a noncash merchandise prize, toy or novelty. If tickets are exchanged for cash, regardless of whether that cash is used to play another machine, the exclusion does not apply. The court leaves open the possibility that additional play through some other method may not violate �47.01(4). But in this case, the machines did not reward the players with representations of value redeemable for noncashmerchandise prizes. Thus, as a matter of law, the eight-liners at issue do not meet the �47.01(4)(B) exclusion and were subject to forfeiture or destruction as gambling devices. OPINION: Jefferson, J., delivered the opinion of the court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.