IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40970

Summary Calendar

LUCKY TUNES #3, L.L.C., a Texas limited liability company, 

 Plaintiff - Appellant

v.

LARRY R. SMITH, a Texas individual; JASON RAILSBACK, a Texas 

individual, 

 Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:18-CV-563

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Lucky Tunes #3 LLC’s suit against two Texas police officers for alleged 

violations of federal and Texas law was dismissed for failure to state a claim. 

After clarifying which claims were dismissed with prejudice and which 

without, we AFFIRM as modified.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 1, 2020

Lyle W. Cayce

Clerk

 Case: 19-40970 Document: 00515402379 Page: 1 Date Filed: 05/01/2020
No. 19-40970

2

I. Background

Lucky Tunes is an establishment that sells certificates to redeem and 

download song files from lucky7downloads.com, a repository of several 

thousand licensed songs.1 The certificates are sold alongside “free 

sweepstakes” promotions. At the rate of one dollar per song, customers 

purchase certificates, which come with 100 entries into the sweepstakes. 

Patrons can also receive up to 100 free entries per day by logging in at the store 

and can request further free entries by mail. To find out if they have won, 

patrons can either instantly reveal the outcome or play games that “mimic 

casino attractions” via “gambling simulation.” When playing the games, 

sweepstakes credits are “represented with a dollar sign.” Prizes for winning 

are paid in cash regardless of the method of revealing the outcome.

In 2017, before Lucky Tunes opened for business, Sheriff Larry Smith of 

Smith County, Texas, sent a letter to local business owners regarding potential 

illegal gambling operations in the county. Sheriff Smith said that his office 

was “investigating complaints that illegal gambling [was] occurring” in the 

county and asked for “voluntary compliance” by removing illegal gambling 

machines. He explicitly referenced games that were being advertised as 

sweepstakes but were being operated illegally. A little over a year later, 

counsel for Lucky Tunes’s parent company sent a reply explaining that the free 

sweepstakes promotions did not violate Texas law.

Nonetheless, Smith County police obtained two warrants to search 

Lucky Tunes. The first was obtained by Detective Jason Railsback in 

September 2018. Det. Railsback based his warrant affidavit on an undercover 

investigation he and Sergeant Shawn White conducted at Lucky Tunes, during 

1 The website is run by Lucky Tunes’s parent company, Lucky 7 Downloads LLC.

 Case: 19-40970 Document: 00515402379 Page: 2 Date Filed: 05/01/2020
No. 19-40970

3

which the officers each purchased $20.00 in songs and played electronic games. 

Det. Railsback reported that in exchange for a $20.00 bill, each officer received 

a receipt showing that 100 entries had been added to his account, “an available 

balance of $21.00,” and a PIN for playing games. He also said that they

received “a separate receipt . . . that was a ‘gift card’ with $20.00 indicated” 

and that “advised we could use the code to go to their website . . . and get 

music.” 

Det. Railsback then described the process of playing the machines: After 

entering the PIN, “[t]he account showed a balance of ‘$21.00’ with dollar sign 

insignia beside the amount indicating it was in fact [U.S. currency] being 

depicted on the machines and not ‘credits.’” He “noted that the minimum ‘bet’ 

allowed on the machine was ‘$.32,’” “placed the $.32 bet,” and won free spins 

that eventually turned into a prize of “approximately $7.60.” He then said that 

after playing further and going to the attendant, “[t]he machine I was playing 

on showed a balance of ‘$25.60’ and the cashier . . . pulled up my account and 

then provided me with $25.00 . . . as payout.” He described a similar 

experience for Sgt. White.

The detective then alleged the following: “The devices . . . include 

gambling device versions of slots that operate by chance or partially so, that as 

a result of the game, award[] credits for cash [and] are not designed, made, and 

adapted solely for bona fide amusement purposes . . . .” He concluded, “Affiant 

believes the machines located at the location . . . are gambling devices as 

defined by [Texas] Penal Code [section] 47.01(4) and do not fall under the 

exception listed under [section] 47.01(4)(B).” A judge issued a search warrant, 

which Smith County officers executed, confiscating property and seizing funds 

totaling $30,779.00. The State of Texas then initiated a civil forfeiture action, 

which is still pending, against Lucky Tunes.

 Case: 19-40970 Document: 00515402379 Page: 3 Date Filed: 05/01/2020
No. 19-40970

4

In February 2019, Sgt. White obtained another warrant based on his 

experience during the same investigation. His affidavit was substantially 

similar to Det. Railsback’s, but Sgt. White also said in relevant part that he 

“placed what appear[ed] to be ‘Bets’ according to the definition provided by the 

Penal Code” and that his winnings “[did] not appear in any way to be a predetermined outcome.” A second search occurred less than five months after 

the first.

Lucky Tunes sued Sheriff Smith in his individual and official capacities

and Det. Railsback in his individual capacity in federal district court under 42 

U.S.C. § 1983. Its complaint alleged violations of the Fourth, Fifth, and 

Fourteenth Amendments to the U.S. Constitution, violations of sections 9, 13, 

and 19 of Article I of the Texas Constitution, and Texas common-law 

conversion. Lucky Tunes requested damages and injunctive and declaratory 

relief. Sheriff Smith and Det. Railsback moved to dismiss, arguing that they 

were protected by qualified immunity and that Lucky Tunes had failed to state 

a claim on which relief could be granted. They attached records of gambling 

charges against Lucky Tunes patrons to their motion.

The district court granted the officers’ motion to dismiss, holding that 

Lucky Tunes failed to meet the pleading standard of Federal Rules of Civil 

Procedure 8(a)(2) and 12(b)(6) and that the officers were entitled to qualified 

immunity. Lucky Tunes timely appealed.

II. Standard of Review

We review dismissals under Rule 12(b)(6) de novo. Romero v. City of 

Grapevine, 888 F.3d 170, 176 (5th Cir. 2018). “To survive a motion to dismiss 

under Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.’” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The pleaded facts must 

 Case: 19-40970 Document: 00515402379 Page: 4 Date Filed: 05/01/2020
No. 19-40970

5

“allow[] the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Iqbal, 556 U.S. at 678. We accept all well-pleaded 

facts as true and view them in the light most favorable to the nonmoving party. 

Romero, 888 F.3d at 176.

III. Discussion

We first address Lucky Tunes’s federal claims. A plaintiff suing an 

individual under § 1983 must show the following: (1) “a violation of rights 

secured by the Constitution or laws of the United States” (2) perpetrated by “a 

person or entity acting under color of state law.” Doe ex rel. Doe v. Dall. Indep. 

Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998) (brackets and quotation omitted). 

The doctrine of qualified immunity shields government officials sued in their 

individual capacity “from liability for civil damages insofar as their conduct 

does not violate clearly established statutory or constitutional rights of which 

a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982).

Lucky Tunes argues that it adequately stated a claim under § 1983 by 

alleging that Sheriff Smith and Det. Railsback acted under color of state law 

and violated (1) the Fourth Amendment by conducting two unreasonable 

searches and seizures and (2) the Fifth Amendment, as incorporated by the 

Fourteenth Amendment, by taking Lucky Tunes’s property without just 

compensation. Lucky Tunes submits that the district court erred by failing to 

accept the well-pleaded facts as true or view them in the light most favorable 

to Lucky Tunes.

A. Fourth Amendment Claims

Lucky Tunes’s Fourth Amendment claim is premised on Franks v. 

Delaware, 438 U.S. 154 (1978). Under Franks, a search and seizure backed by 

a search warrant nevertheless may be unreasonable if “a false statement 

 Case: 19-40970 Document: 00515402379 Page: 5 Date Filed: 05/01/2020
No. 19-40970

6

knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the allegedly false 

statement is necessary to the finding of probable cause.” Id. at 155–56. A 

challenger may also show an “intentional or reckless omission of material facts 

from a warrant application.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 

2006). When determining whether a false statement or omission is material, 

a court must excise any false statements and “insert [any] omitted facts into 

the affidavit and ask whether the reconstructed affidavit would still support a 

finding of probable cause.” Id.; see also United States v. Namer, 680 F.2d 1088, 

1093 (5th Cir. 1982).

In this case, the affidavits alleged that Lucky Tunes had violated 

sections 47.03, .04, and .06 of the Texas Penal Code, which prohibit knowingly 

using real property for gambling, promoting gambling, and possessing 

gambling devices. In relevant part, section 47.01(4) defines a “gambling 

device” as one “that for consideration affords the player an opportunity to 

obtain anything of value, the award of which is determined solely or partly by 

chance.” Lucky Tunes complains that the affidavits both falsely stated that 

the officers placed “bets” at Lucky Tunes and omitted “the known fact that all 

of [Lucky Tunes’s] sweepstakes games were at all times free.” The district 

court, it says, erred by considering the possibility that Lucky Tunes was 

running an illegal gambling operation that involved bets despite its allegations 

that the sweepstakes were free and advertised as such, and therefore legal. 

Lucky Tunes argues that the district court should have, and this court must, 

take as true “that its sweepstakes are all always free, and that ‘bets’ are 

impossible.” Therefore, Lucky Tunes claims, “there was categorically no crime, 

and hence no probable cause.”

 Case: 19-40970 Document: 00515402379 Page: 6 Date Filed: 05/01/2020
No. 19-40970

7

This argument is fantasy. Probable cause “requires only a probability or 

substantial chance of criminal activity.” District of Columbia v. Wesby, 138 S. 

Ct. 577, 586 (2018) (quotation omitted). It has never been the case that a 

constitutional violation arises when the conduct in question turns out to be 

legal. Instead, we must ask whether, under the totality of the circumstances,

the facts known to the officer at the time of the affidavit would lead an 

objectively reasonable officer to believe there was probable cause. See id. We 

hold that the affidavits established probable cause even if we omit the 

references to betting and insert the facts that the sweepstakes were advertised 

as free and did not involve a transaction separate from the music download 

certificates.2 Therefore, Lucky Tunes did not plead facts to support a showing 

of materiality under Franks. See Kohler, 470 F.3d at 1113.

Under Texas law, “free sweepstakes” can nevertheless violate Chapter 

47. See, e.g., United States v. Davis, 690 F.3d 330, 339–40 (5th Cir. 2012);

Texas v. Ysleta del sur Pueblo, EP-99-CV-320-KC, 2015 WL 1003879, at *23 

(W.D. Tex. Mar. 6, 2015); State v. Fellows, 471 S.W.3d 555, 567 (Tex. App.—

Corpus Christi, 2015, pet. ref’d); Jester v. State, 64 S.W.3d 553, 558–59 (Tex. 

App.—Texarkana 2001, no pet.). This is because “the consideration element in 

the Texas gambling statutes can be fulfilled without an explicit exchange of 

money for the opportunity to participate in a sweepstakes.” Davis, 690 F.3d at 

339. The question in this case would be “whether the sweepstakes was 

intended to promote the sale of [music downloads] or whether the [downloads] 

were there as an attempt to legitimize an illegal gambling device.” See Jester, 

64 S.W.3d 553 at 558. 

2 We note that, under the case law cited below, whether a “bet” takes place or a 

sweepstakes is truly “free” is a question of law—indeed, a crucial question in determining 

whether a sweepstakes is gambling—and is therefore not a fact that we must accept as true.

 Case: 19-40970 Document: 00515402379 Page: 7 Date Filed: 05/01/2020
No. 19-40970

8

Given the similarity of Lucky Tunes’s business model to those that have 

been found illegal, we conclude that the affidavits demonstrated probable 

cause to believe that the true object of transactions at Lucky Tunes was the 

sweepstakes and not the music downloads. See, e.g., Davis, 690 F.3d at 333, 

339 (internet time was sold alongside sweepstakes entries that could also be 

obtained for free); Jester, 64 S.W.3d at 558 (telephone cards were sold alongside 

sweepstakes entries that could also be obtained for free). Lucky Tunes’s

storefront housed casino-themed games, which represented the “free entries” 

as currency. Lucky Tunes paid out cash prizes multiple times larger than the 

amount paid for the music downloads, which could only be accessed by 

independently visiting the Lucky 7 Downloads website. We of course do not 

determine whether this was gambling under the definition of the statute—we 

hold only that the affidavits established probable cause that it was.3 

Therefore, Lucky Tunes failed to allege that the affidavits were materially false 

or misleading.

B. Other Federal Claims

Lucky Tunes’s Fifth and Fourteenth Amendment due process claims fail 

because (1) the Fifth Amendment’s due process clause applies only to federal 

actors, see Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000), and (2) a 

Fourteenth Amendment due process claim is not the proper means to challenge

conduct specifically addressed by the Fourth Amendment, see Cuadra v. Hous. 

Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010). Lucky Tunes asserts that 

it also stated a claim under the Fifth Amendment’s Takings Clause, but to the 

3 We also do not make “a finding of fact that the music was a subterfuge, that the $20 

was paid to play the games and not purchase music, and that [Lucky Tunes] violated the 

gambling laws,” as Lucky Tunes charged the district court with doing. Nor did the district 

court.

 Case: 19-40970 Document: 00515402379 Page: 8 Date Filed: 05/01/2020
No. 19-40970

9

extent that it invoked that clause at all, it has not alleged facts showing how 

its property was taken for public use in contravention of a clearly established 

right. See U.S. CONST. amend. V.

Because Lucky Tunes has failed to plead a violation of any constitutional 

right, much less a clearly established one, the officers are entitled to qualified

immunity. See Harlow, 457 U.S. at 818. Consequently, the claims against 

Sheriff Smith in his official capacity fail as well. See City of Los Angeles v. 

Heller, 475 U.S. 796, 799 (1986) (per curiam) (holding that claims for damages 

based on an officer’s actions in his official capacity fail when there has been 

“no constitutional injury at the hands of the individual police officer”).

C. State Claims

The district court dismissed some of Lucky Tunes’s state-law claims for 

failure to state a claim and declined to exercise supplemental jurisdiction over 

the rest. Supplemental jurisdiction over state-law claims is proper when they 

“form part of the same case or controversy” as federal claims over which the 

district court has original jurisdiction. 28 U.S.C. § 1367(a). In other words, 

the state and federal claims must “derive from a common nucleus of operative 

fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Even if 

supplemental jurisdiction is proper, a court may decline to exercise it in light 

of “the statutory factors set forth by 28 U.S.C. § 1367(c), and . . . the common 

law factors of judicial economy, convenience, fairness, and comity.” Enochs v. 

Lampasas Cty., 641 F.3d 155, 159 (5th Cir. 2011) (citing Carnegie-Mellon Univ. 

v. Cohill, 484 U.S. 343, 350 (1988) (listing the common-law factors)). We 

review decisions of supplemental jurisdiction for abuse of discretion. Priester 

v. Lowndes Cty., 354 F.3d 414, 425 (5th Cir. 2004).

Lucky Tunes alleged that the officers violated Article I, sections 9, 13, 

and 19, of the Texas Constitution. Its section 9 claims fail because that 

 Case: 19-40970 Document: 00515402379 Page: 9 Date Filed: 05/01/2020
No. 19-40970

10

provision “and the Fourth Amendment are the same in all material respects” 

and Lucky Tunes has not argued or provided authority that it should be 

interpreted more expansively. See Gates v. Tex. Dep’t of Protective & Reg.

Servs., 537 F.3d 404, 437–38 (5th Cir. 2008). Similarly, section 19’s “due course 

of law provision provides the same protections as the federal Due Process 

Clause,” so these claims fail as well. See Fleming v. State, 376 S.W.3d 854, 857 

(Tex. App.—Fort Worth 2012), aff’d, 455 S.W.3d 577 (Tex. Crim. App. 2014). 

Lucky Tunes failed to state a claim under section 13 by making only a 

passing reference with no mention of excessive bail or cruel or unusual 

punishment. Lucky Tunes also waived this issue by failing to argue for it on 

appeal. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).

We also affirm the dismissal of the requests for injunctive and 

declaratory relief. Injunctive relief is unavailable on the claims dismissed 

under Rule 12(b)(6) because of the lack of an underlying cause of action. See 

Crook v. Galaviz, 616 F. App’x 747, 753 (5th Cir. 2015) (per curiam). The 

requests for declaratory judgment that rely on “the United States and Texas 

constitutions and the laws of Texas” fail for the reasons discussed above. 

Therefore, we affirm the district court’s dismissal of the foregoing state 

claims for failure to state a claim. We also hold that the district court did not 

abuse its discretion by exercising supplemental jurisdiction over these claims, 

even though it dismissed the federal claims, because they concern the same 

facts and similar law as the federal claims, making it more convenient to 

dispose of them in this action. See Gibbs, 383 U.S. at 726–28 (holding that “if 

the federal claims are dismissed[,] . . . the state claims should be dismissed as 

well,” but exercising jurisdiction is nonetheless proper when state and federal 

claims are “closely tied”). The district court’s final judgment failed to reflect

 Case: 19-40970 Document: 00515402379 Page: 10 Date Filed: 05/01/2020
No. 19-40970

11

whether the dismissals were with or without prejudice. The dismissals of these 

claims, of course, were with prejudice. 

The final state law claims, however, should have been dismissed without 

prejudice. We hold that the district court did not abuse its discretion by

declining to exercise supplemental jurisdiction over the remainder of the

declaratory-judgment claims and the Texas conversion claim, which involve 

distinct questions of state law. See id. Such dismissals, of course, are without 

prejudice.4 See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999). The 

judgment should be clarified to reflect these different dismissals.

Accordingly, we modify the judgment to make clear that the claims 

dismissed under Rule 12(b)(6) are dismissed with prejudice and the claims 

dismissed based on a decision not to exercise supplemental jurisdiction, as 

discussed above, are dismissed without prejudice. AFFIRMED as modified.

4 The court made conflicting statements about whether it dismissed Lucky Tunes’s 

conversion claim for failure to state a claim or declined to exercise supplemental jurisdiction 

over it. Given that federal courts are courts of limited jurisdiction and that these state law 

claims were distinct from the federal claims and the other state law claims, we construe the 

order as declining to exercise supplemental jurisdiction, resulting in a dismissal without 

prejudice of the conversion claim.

 Case: 19-40970 Document: 00515402379 Page: 11 Date Filed: 05/01/2020