NO. 07-03-0132-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A FEBRUARY

20, 2004

______________________________ FIFTY-SIX (56) GAMBLING DEVICES, EIGHT THOUSAND THREE HUNDRED THIRTEEN DOLLARS ($8313.0 0) IN UNITED STATES CURRENCY AND FO UR HUND RED DOLLARS ($400.00) IN GIFT CERTIFICAT ES, APPELLANT V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 181ST

DISTRIC T COURT O F POTT ER COUNTY; NO. 89,860-B; H ONORABLE JOH N B. BOARD, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORA NDUM OPIN ION Presenting four points of error, Craig B rucker chal lenges the trial cour t’s renditi on of a summary judg mentforfeiting his property, including 56 eight-liner gambling devices,1 All r eferences to articles are to the Texas Code of Criminal Procedure un less

otherwis e designated. (Vernon Supp. 200 4). 2 $8,313 in cash, and $400 in gift cer tificates purs uant to article 18. 18 of the Texas Code of Criminal Pr

ocedure. 1 Based upon the foll owing r ationale, we revers e and remand.
On November

5, 2001, Dan Howington, an undercover off icer with the Panhandle Regional Narcotics Trafficking Task Force, entere d Prize P alace Amusements and played
a mach ine c omm only k nown as an eigh t-liner. After co mpiling a number of creditson the machine, he ad vised a Prize Palace employee that he wanted to cash out. The employee tabulated th e amount owed H owington by the machi ne and paid him that sum in cash. During his stay

at Priz e Palace, How ington noticed approx imately 40 other machines, each of which appea red to operate i n the same manner as the device o n which he pl ay ed. Howing ton also observed that Priz e Palace a ppeared to engage i n no other commerc ial venture but t he operation of eig ht-liners.
Based upon his investigation, How ington, on December 12, 2001, obtained a search warrant commanding the seizure from Prize Palace of all gambling devices, gambling paraphernalia, and coupons o r gift ce rtificates, or any other pr

oceeds derived from the operation of the gambling devices or paraphernalia. W hile executing the warrant, officers seized the property

described above. On May 10 , 2002, the State, el ecting not to proceed with a criminal prosecution, fil ed a petition seek ing forfeiture of the eight-l iners, cash, and2 In its petiti on, the State requested citation be issued to Olivia Rodriguez and Billy

Stone, who were, respecti vely, alleged to be the person found in possessio n of the seized property and the operator of the business where the seized property w as located. N either of those indiv iduals is a party to th is appeal.

3 The judge of the 181 st District Court was the magist rate whoauthorized the search warrant.

4 Brucker did not desig nate his answer to be incl uded in the clerk’s record; however, the State concedes an answer w as filed.
5 See Tex. R. Civ. P. 166a(c) & (i). 3 gift certificatespursuant to ar ticle 18.18. 2 By its petition, the State asserted the District Cou rt 3 had jurisdiction to hear the action, an d alleged it had satisfied all condit ion s precedent

to filing or

mainta ining it. In response to the petition, Brucker filed a g eneral denial. 4
Followi ng six monthsof discover y, the State filed a combination traditional and noevidence motion for

summary judg ment, 5 relyin g upon artic le 18.18 as author ity for rel ief. As grounds for t he traditional motion, the State a sserted the summary judgment evidence conclusively

established t hat the seiz ed eight-l iners were gambling devices a nd/or gambling paraphernalia, and that the cash and gift certificate s were gambling proceeds. In support of the no-evidence motion, the Stat e alleged there was no evidence the eightliners, cash, and gi ft certificatesdid not who lly cons ist of gambling devices a nd/or gambli ng paraphernalia, and gambling proceeds, respectively. The summa ry judgment evidence consisted of Howing ton’s affidavit in support of the s earch war rant, the search w arrant, and Brucker’sresponses to t he State’s req uests for admissi ons.6 Althou gh it appears from the record he was not present w hen the search w arrant was executed, Brucker conceded in his responses to t he State’s req uests for admissi ons that he was the owner of al l the eight- liners sei zed from Prize Palace. 4 In his responseto the St ate’s motion for s ummary judg ment, Brucker claimed Howington’s affidavit was not probative as summary judgment ev idence because i t was “vague, overbroad, [and] conc lusi onary.” 6 Brucker also suggested: (1) the eight-liners were legally operated pursuant

to section 47.01( 4)(B) of the Texas Penal Code (Vernon 2003 ), commonly known as the fuzz y animal ex

ception; and (2) his attached affid avit to that effect raised a genuine is sue of material fact s ufficient to p reclu de a traditional summary judgment. Additionally , he asserted a no- evidence summar y judgment was inappr

opriate because the State failed to est ablish it had complie d with the procedural r equirements of article 18.18

. Concluding there was no g enuine issue of mater ial fact, in January 2003, the trial court rendered summary judgment in favor of the State on both tradition al and no-evidence grounds. Specificall y, the cour t concluded as amatter of law that the s eized proper ty constituted gambling devicesand gambling proceeds and was, thus, subject to forfeitu re under articl e 18.18. Additionally , the court found there to be no evidence to support any claim under se ct ion (f) of artic le 18.18 that the pr operty, currency, and gift certificates seized from Pr ize Palace were not gambling de vices, par aphernalia, or

proceeds. By four points of error, Brucker claims: (1) his due process rights were violated by the trial court’s failur

e to abide by th e mandatory termsof article 18.18; (2) the trial court5

lacked jurisdic

tion to hear the State’s motion for summary judg ment because of its failure to have a show

cause hearing as requir ed by arti cle 18.18; (3) the trial court improperly granted the motion for summary judgment w hen disputed fact is sues remained; and (4) “the search warrant used to seized [si c] Appellant’ s [Bruc k er’s] proper ty was defective.” W e will co nsid er Bru cker’ s fir st an d thi rd po ints cont emp oran eou sly.
Standard of Review–Traditional Motion Where, as here, the trial court’s order explicitlyspecifies theground rel ied upon for the summary judgment ruling, the ruling can only be aff irmed if the theory is meritorious; otherwise the case must be remanded. State Farm Fire & Cas. Co. v . S.S., 858 S.W.2d 374, 381 (Tex. 1993). For a mov ant to prevail in the context of a traditiona l summary judgment, he must conclusively establish: (1) the absence of any g enuine questi on of material fact; and (2) he is entitled to judgment as a matter of law . Nixo n v. Mr. Property Manag e ment, 690 S.W .2d 546, 548-49 (Te x. 1985). A movant must either prove all essential element s of his claim, or negate at leas t one essential element of the nonmovant's cause of action. See MMP, Ltd. v. Jon es, 7 10 S. W .2d 5 9, 60 (Tex. 1986) and Randall's Food Markets , Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 19 95). When determining whether

summary judgment was proper, we review the evidence in the lig ht most favorable to t he nonmovant taki ng all ev idence in favor of the nonmovant as true and resolvi ng all doubts asto th e ex istence of a genuine issue of material fact in its favor. Harwell v. Sta te Fa rm Mu t. Au to In s. Co. , 896 S.W .2d 1 70, 1 73 (T ex. 19 95). Once the6

movant has estab l ished a rig ht to summary judgment, the nonmov ant has the burden to respond to the motion for s ummary judg ment and present to the trial court any i ssues that would preclude it . City of Houston v. Clear Cr eek Basin Author ity, 589 S. W.2d 671, 678 (Tex. 1979). Because our analys is of Bruc ker’s firs t and third poi nts controlsour disposition of the case, we need not add ress the standard of review for a no-evidence motion for summary

judgment. By points on e and th ree, Brucker argues he w

as not afforded the notice and opportunity to be heard mandated by article 18.18, an d a genuine issue of mate rial fact existed precluding summary judg ment. W e agre e. Statutory proceedings

seeking forfeiture of property are civil in nature; therefore, the Texas Rules of Civil Proce dure appl y. See Hardy v . State, 102 S .W .3d 1 23, 1 26 (T ex. 2003); see also F & H Investments, Inc.
v. Stat e, 55 S.W.3d 663, 668 (Tex.App.–W aco 2001, no pet.). Becau se the law abhors
a forfeiture, statutes authorizing forfeiture are stric tly const rued. See State v. Lot 10, Pine Haven Estates, 900 S.W.2d 400, 402 (Tex .App.–Texarkana 1995, no wri t) (affirming trial court’s deni al o f Sta te’s moti on fo r summary judg ment in suit se eking forfeitur e of property). Here, the r

ecord does not r

eveal w hether an article 18.18 show cause hearing
was conducted follow ing seiz ure of the property from Prize P alac e. Instead, the State sought forfeiture of that prope rty thro ugh a motion for summary judgment under Rule 166a of t he Texas R ules of Civ il Procedur e. By the moti on, the State all eged articl e 18.18 authorized the relief it sought. Among other thing s, that statute requiresthe magistrate to whom the search w

arrant is r

eturned: (1)

to provi de written notification of the seizur

e and7 See also Tex. Const. art. I, § 19 (No citi zen of this Sta te shall be depr ived of life,

liberty , property

, privi leges or

immunities, or in any manner di sfranchised, except by due course of the l

aw of the land

). (Emphasis added).

7 imminent

forfeiture to the person found in possessi on of the property ; (2) to inc lude a detailed descriptio n of the seized property i n the notice; and (3) to send the required notice via certified mail, retur n receipt re quested. See art. 18.18 (b), (c), & ( d). Additi onally, th e statute affords any person interest ed in the seiz ed pr operty the op portunity to appear before the magistr

ate for a show cause hearing on th e 20 th day follow ing the date t he notice was

mailed or posted. See art. 18.18 (e) & (f).
Brucker does

not contend that a motion for summary j udgment is not an appropriate alte rnat ive to a show cause hearing; therefore, we need not determinewhether the procedure set out in article 18.18 is the exclus ively authorized procedure for di sposing of gambling devices, p araphernalia, and proceeds. H owever , notice and hear ing are the process used to protect a property

interest. E lm Creek

Owners v . H.O.K. Investments, 12 S.W.3d 494, 498 (Tex.App.–Sa n Antonio 1999, no pet.). 7 Therefore, because t he State expressly

based its pleadings and motion for summary judgment upon article 18.18 as authority for forfeiture of the proper ty, it w as requir ed to show compliance w ith the notice procedures mandated by that ar ticle. Accordingly , to establish its entitlement to sum mary judgment

under the statute, it was necessary for the State to pr ovide summary

judgment evidence demonstrating writte n notice was provid ed. We cannot discern from the record whether such notice w

as giv en. As a resul t, the State failed to est ablish its right to8 The issues cons ider ed here were not pr esented in Twen ty-Nine(29) Gamblin g Devices v. State, 110 S.W .2d 146 (Tex.App.–Am arillo 2003, no pet. h.). 8 summary judgment, and the burde n did not shift to Brucker to respond to th e motion for summary judgment or p resent the tri al court any issues thatwould pr

eclude it. Clear Cr

eek Basin , 589 S.W.2d at 678. 8 Brucker’ s first and third points are sustained. Our disposi tion of these points pre cludes our co nsideration of hi s remaining points.
Acco rdin gly, the judgment of the trial cou rtis reversed and the cause is remanded for further proceedi ngs.

Don H. Reavis Justice