Summary
referring to Hardy ’s same-day holding and reciting that person in possession of alleged gambling device has "the burden to prove, by a preponderance of the evidence, at a show cause hearing either that the machine is not a gambling device or that the exclusion in Penal Code section 47.01(B) applies"
Summary of this case from City of Fort Worth v. RylieOpinion
No. 01-0673.
Argued September 11, 2002.
Opinion Delivered: April 3, 2003. Rehearing Denied May 8, 2003.
On Petition for Review from the Court of Appeals for the Third District of Texas.
Reversed and rendered.
Idolina Garcia, William F. Lewis, Jr., Jeffrey S. Boyd, Howard G. Balwin, First Assistant Attorney General of Texas, Michael T. McCaul, Executive Assistant Attorney General, Office of the Attorney General of Texas, Julie Caruthers Parsley, Office of the Solicitor General of Texas, Austin, John Cornyn, United States Senate, Washington, DC, for Petitioner.
Eddie G. Shell, Burnet, Larry Zinn, San Antonio, Richard D. Davis, Austin, for Respondent.
Today, in Hardy v. State, 102 S.W.3d 123 (Tex. 2003), we held that although the State must establish probable cause before initiating a forfeiture proceeding, the person found in possession of an alleged gambling device has the burden to prove, by a preponderance of the evidence, at a show cause hearing either that the machine is not a gambling device or that the exclusion in Penal Code section 47.01(4)(B) applies. Id. Further, we held that devices, known as "eight-liners," that dispense tickets redeemable for cash, even if used only for additional play, or for gift certificates redeemable at local retailers do not, as a matter of law, meet the gambling device exclusion under section 47.01(4)(B).
In this civil forfeiture case, the evidence is undisputed that the eight-liners issued tickets that were redeemable for, among other prizes, cash used for additional play or gift certificates used to purchase items at local retailers. Regardless, the court of appeals affirmed the trial court's judgment on the jury verdict that the eight-liners were not gambling devices and, in addition, concluded that the trial court did not improperly place the burden of proof on the State. 55 S.W.3d 51, 53. Our decision in Hardy controls. Consequently, the court of appeals' judgment is reversed and judgment is rendered for the State.