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Civil Litigation No. 07-02-0194-CV, 4/25/2003. Click here for the full text of this decision FACTS: This is an appeal from a summary judgment forfeiting 29 “eight-liner” machines, $3,785 in cash, and $1,140 in gift certificates pursuant to Texas Code of Criminal Procedure Article 18.18. HOLDING: Affirmed. The appellants assert the trial court erred in finding that no genuine issue of material fact was present and that the state was entitled to a judgment forfeiting the seized property as a matter of law. At the time this appeal was briefed and argued, the issue whether the state or appellants bore the burden of proof in forfeiture proceedings on the characterization of the seized property as gambling devices and proceeds was unresolved. Courts of appeals had treated the issue differently. The Texas Supreme Court recently released its opinion in Hardy v. State, 46 Tex.S.Ct.J. 555 (April 3, 2003), in which it held that the state meets its initial burden supporting forfeiture in article 18.18(b) proceedings by establishing probable cause to initiate the proceeding, and bears no burden at the show cause hearing held under article 18.18(f) to determine the nature of the seized property or proceeds and the claimant’s interest in it. It is the party seeking to avoid forfeiture who bears the burden to prove by a preponderance of the evidence that the property or proceeds are not subject to forfeiture. The appellants have raised no issue concerning the validity of the search warrant issued in this case or otherwise argued that the state had no probable cause to initiate the forfeiture proceeding. To avoid forfeiture of the seized items of property, it was the appellants’ burden to establish that the seized items are not gambling devices, gambling proceeds or other property of the types listed in article 18.18(f). The appellants’ position, before the trial court and before this court, is that the seized machines are not gambling devices because the gift certificates received by players in exchange for the tickets dispensed by the machines are “noncash merchandise prizes, toys or novelties,” qualifying the machines for the “fuzzy animal” exclusion under Penal Code �47.01(4)(B). It is undisputed that the machines meet the statutory definition of gambling devices if the exclusion contained in �47.01(4)(B) is inapplicable. The second major holding of the Supreme Court’s decision in Hardyforecloses appellants’ position. In that case, the court held that a gift certificate from a retail establishment such as Wal-Mart does not qualify as a noncash merchandise prize, toy or novelty for purposes of �47.01(4)(B). The appellants’ summary judgment evidence consisted entirely of the affidavit of Don Neuhauser. There is nothing in the affidavit that would enable a reasonable and fair-minded person to conclude that the seized machines are not gambling devices, or that the seized cash and gift certificates are not gambling proceeds. The statements in the affidavit concerning the nature of the machines are primarily such as to bring the machines within the Penal Code’s definition of such devices. But for the Supreme Court’s decisions, the statements, “No cash was ever given. The gift certificates awarded as prizes were not the same as cash,” might have sufficed to raise a fact question concerning the applicability of the “fuzzy animal” exclusion to the machines. Because the gift certificates awarded as prizes to players at Mr. Bigs are indistinguishable from those at issue in Hardy, though, the Supreme Court has said that they were the same as cash. The state argued before this court that the seized machines are gambling paraphernalia under �47.01(6) as apparatus that recorded or registered bets, regardless of their status as gambling devices. The court’s disposition of the appeal makes consideration of that argument unnecessary. OPINION: Campbell, J.; Johnson, C.J., Reavis and Campbell, JJ.

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