NUMBER 13-10-00265-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI—EDINBURG

THE STATE OF TEXAS, Appellant,

v.

GAMBLING PARAPHERNALIA, 

DEVICES, EQUIPMENT AND PROCEEDS, Appellee.

On appeal from the 156th District Court

of Bee County, Texas

OPINION

Before Justices Garza, Vela, and Perkes 

Opinion by Justice Perkes 

This is a civil-forfeiture case. By a single issue, the State argues the trial court 

erred as a matter of law by concluding the seized devices are not gambling devices 

because the “replay” that the devices awards is not a “thing of value” under the Penal 
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Code. The trial court denied the State‟s motion for forfeiture. We sustain the State‟s 

issue on appeal, and reverse and render a judgment of forfeiture.

I. FACTUAL AND PROCEDURAL BACKGROUND

The State of Texas moved for forfeiture of gambling paraphernalia, devices, and 

equipment and proceeds. The property was seized pursuant to a search warrant. In its 

search warrant affidavit, the State‟s investigator testified that some of the devices were 

“eight-liners” which looked like gambling machines one would expect to see in a Las 

Vegas casino. He testified further the player cards cost one dollar each, that they

record the number of points the player wins or loses, and that the value associated with 

the points could be ascertained from the player cards. Sixty-six devices were 

subsequently taken from Horseshoe Fun and Games, an establishment open to the 

public. 

The owners of the property argued that the paraphernalia, devices, and 

equipment were not gambling devices as defined in section 47.01 of the Texas Penal 

Code, and that the State‟s forfeiture motion should be denied. In lieu of offering live 

testimony at the forfeiture hearing, the parties stipulated to the following facts, which the 

trial court adopted in its findings of fact and conclusions of law: 

1. The property located at 2400 West Corpus Christi Street, Beeville, Bee 

County, Texas for the months of June, July and August of 2008 was 

operated under the name Horseshoe Fun & Games.

2. Joyce Temple is the sole owner of the currency seized at said location 

on or about August 15, 2008. James Temple is the sole owner of the 

devices seized at said location on or about August 15, 2008.

3. Horseshoe Fun & Games operated devices at the location which 

operated as follows:
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a. Patrons purchase player cards which, for additional 

consideration, are loaded with points which are accepted for 

play on the devices.

b. Points have a pre-determined dollar value, however, a 

minimum number of points are required to be wagered at a 

time depending on the device being played. The devices 

require a minimum wager of 5 points or 8 points, depending 

on the device being played.

c. When a player card is inserted into one of the devices, the 

device reads the loaded points on the card and transfers the 

stored points onto the device which allows for play of the 

device.

d. The player is then allowed to operate the device for play. On 

each play of the device, the player is either awarded 

additional points or loses the points wagered based solely on 

chance.

e. At any time, the player may remove his/her player card 

which records the player‟s winnings and losses and insert 

that card into another device at the location for additional 

play. Also, the player may use the card on another date of 

the player‟s choosing. When a player chooses to 

discontinue play on a particular device, the points are then 

transferred back onto the player card prior to its removal 

from the device.

f. Upon a single play of the device, the player may be awarded 

more than 10 times the number of points wagered.[1]

4. The currency seized from Horseshoe Fun & Games is proceeds of the 

operation of the devices described herein.

In addition, the trial court admitted in evidence the search warrant and supporting 

affidavit that authorized search and seizure of the property at issue. In that regard, the 

trial court found the warrant was issued upon probable cause that the property in 

 

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The State stipulated further at trial that the case involves only the potential for replay based 

upon points received, and that no cash prizes, toys, or novelties were being awarded. Credits could not 

be exchanged for anything of value other than replay on the machine. However, no stipulation was made 

regarding the potential monetary value of the points on the player cards.
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question was contraband as defined in the Texas Code of Criminal Procedure and 

Texas Penal Code.

Based upon its findings of fact, the trial court entered the following conclusions of 

law:

[T]he Court concludes that the devices in this case are not gambling 

devices as that term is defined in Penal Code § 47.01(4). Specifically, the 

Court concludes that replay as awarded by the devices in question is not a 

thing of value as that term is defined in Penal Code § 47.01(9).

In accordance with its findings of fact and conclusions of law, the trial court 

denied the State‟s forfeiture motion. This appeal followed.

II. ISSUE PRESENTED

By its sole issue on appeal, the State contends the trial court erred by concluding 

that the “replay” awarded, with respect to the machines in question, is not a “thing of 

value” pursuant to Penal Code section 47.01(9). See TEX. PENAL CODE ANN. § 47.01(4), 

(9) (West 2003) (defining gambling device). If the replay is not a thing of value, the 

devices are not gambling devices subject to forfeiture. See TEX. CODE CRIM. PROC. ANN.

art. 18.18(b), (g)(2) (West 2005). 

III. STANDARD OF REVIEW

We review a trial court‟s conclusions of law de novo and will uphold them on 

appeal if the judgment can be sustained on any legal theory the evidence supports. 

See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Legal 

conclusions of the trial court are always reviewable, and the appellate court is not 

obligated to give any particular deference to those conclusions. Montanaro v. 

Montanaro, 946 S.W.2d 428, 431 (Tex. App.—Corpus Christi 1997, no writ). A trial 

court‟s legal conclusions will be upheld on appeal unless they are erroneous as a matter 
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of law. Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.—Corpus 

Christi 1995, no writ).

We review questions of statutory construction de novo. Singleton v. Casteel, 267 

S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing City of San 

Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In construing statutes, our 

primary objective is to give effect to the Legislature's intent. Tex. Lottery Comm’n v. 

First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain 

meaning of the text as expressing legislative intent unless a different meaning is 

supplied by legislative definition or is apparent from the context, or the plain meaning 

leads to absurd results. Id.

IV. DISCUSSION

Following lawful seizure,2gambling paraphernalia, devices, equipment and 

proceeds are subject to forfeiture even when, as here, there is no prosecution of the 

owner of the contraband. See TEX. CODE CRIM. PROC. ANN. art. 18.18 (b) (West 2005); 

In re Seizure of Gambling Proceeds and Devices, 261 S.W.3d 439, 446 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). Once the State has established probable cause 

to initiate a forfeiture proceeding, the State has met its burden under article 18. Hardy 

v. State, 102 S.W.3d 123, 129 (Tex. 2003). At that point, the burden shifts to the 

claimant to prove by a preponderance of the evidence that the property is not 

contraband related to gambling and, thereby, subject to forfeiture under article 18.18(f). 

TEX. CODE CRIM. PROC. ANN. art. 18.18(f); Hardy, 102 S.W.3d at 127. Under the statute, 

 

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The trial court found the property was lawfully seized pursuant to a warrant supported by 

probable cause. The claimants do not claim the seizure of the property was unlawful. Accordingly, we 

presume the State met its burden to demonstrate the seizure was supported by probable cause. See 

Hardy v. State, 102 S.W.3d 123, 130 (Tex. 2003).
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a lawfully-seized device is forfeited to the State unless an interested person shows it is 

not a gambling device. Hardy, 102 S.W.3d at 128. 

The forfeiture statute does not include a definition of “gambling device,” but it 

does incorporate the definition of gambling device contained in the Penal Code:

(4) “Gambling device” means any electronic, electromechanical, or 

mechanical contrivance not excluded under Paragraph (B) that for a 

consideration affords the player an opportunity to obtain anything of value, 

the award of which is determined solely or partially by chance, even 

though accompanied by some skill, whether or not the prize is 

automatically paid by the contrivance. The term:

(A) includes, but is not limited to, gambling device versions of 

bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, 

electromechanical, or mechanical games, or facsimiles thereof, that 

operate by chance or partially so, that as a result of the play or operation 

of the game award credits or free games, and that record the number of 

free games or credits so awarded and the cancellation or removal of the 

free games or credits; and

(B) does not include any electronic, electromechanical, or 

mechanical contrivance designed, made, and adapted solely for bona fide 

amusement purposes if the contrivance rewards the player exclusively 

with noncash merchandise prizes, toys, or novelties, or a representation of 

value redeemable for those items, that have a wholesale value available 

from a single play of the game or device of not more than 10 times the 

amount charged to play the game or device once or $5, whichever is less. 

. . . .

(9) “Thing of value” means any benefit, but does not include an 

unrecorded and immediate right of replay not exchangeable for value.

TEX. CODE CRIM. PROC. ANN. art. 18.18(g)(2); TEX. PENAL CODE ANN. § 47.01(4), (9).

The Temples argue that the devices are not gambling devices as defined under 

section 47.01(4) because the devices are “made and adapted solely for bona fide 

amusement purposes.” They argue further that the points awarded on the player card 

provide for an immediate right of replay as permitted under section 47.01(9). They
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contend the devices do not provide a player any benefit and that replay is not a “thing of 

value” as would bring the devices within the definition. They assert patrons play the 

games with no expectation of receiving any cash, money orders, gift cards, novelties or 

prizes other than replay, and contend the noncash award of replay is legal and 

consistent with the holding of Hardy v. State. See Hardy, 102 S.W.3d at 131-32. 

In Allstar Amusement, the Court of Appeals addressed whether an “eight-liner” 

which awarded a ticket that can be exchanged only for play on another device on the 

same day or at a later date, is a gambling device under section 47.01(4)(A). Allstar 

Amusement v. State, 50 S.W.3d 705, 706 (Tex. App.—Waco 2001, no pet.). To redeem 

a ticket, a player would take the ticket to an attendant, who would then put $5.00 in the 

device the player selected. Id. at 706. The court analyzed whether the ticket was a 

“thing of value” under Penal Code section 47.01(9), so that the device in turn meets the 

section 47.01(4)(A) definition of a gambling device. Id. at 707-08. The court held the 

ticket dispensed is a “benefit” as that term is defined in the Penal Code. Id. at 708. 

Section 1.07(7) of the Penal Code defines benefit as including “anything reasonably 

regarded as economic gain or advantage.” Id. (quoting TEX. PENAL CODE ANN. § 1.07(7)

(West 1994)). The court noted further that the eight-liner recorded credits on a ticket, 

and determined that a ticket which could be exchanged for play on another device was 

not necessarily „immediate.‟ Id. (quoting TEX. PENAL CODE ANN. § 47.01(9) (West Supp.

2001)) (emphasis added). For these reasons, the court concluded the eight-liner was a 

gambling device under section 47.01(4). Id. at 707-09; see Broaddus v. State, 150 

S.W.2d 247, 250-51 (Tex. Crim. App. 1941) (holding that coin-operated marble game 
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that awarded replay on the basis of chance is a gambling device because replay is a 

thing of value).

Similar to Allstar Amusement, the number of credits awarded in this case is 

recorded on the player cards and the replay is not necessarily immediate because the 

points can be used at a later date at the time of the patron‟s choosing. In addition, the 

replay is a benefit because it awards a thing of value. Points which allow replay without 

payment of additional consideration are an economic gain or advantage, and, therefore,

satisfy the definition of “benefit” found in the Penal Code. See TEX. PENAL CODE ANN. §

1.07(a)(7) (West 2003); see also Broaddus, 150 S.W.2d at 250-51; Allstar Amusement, 

50 S.W.3d at 708. 

The Temples‟ reliance on Hardy is misplaced. The “bona fide amusement 

purposes” language in section 47.01(4)(B) is followed by an express condition that the 

noncash merchandise prize, toy, or novelties awarded shall not exceed the specified 

statutory monetary limits. Here, the replay awarded by the devices does not meet the 

exclusion set forth in the definition of a gambling device because points awarded can 

exceed the monetary value permitted under the statute for a “noncash merchandise 

prize, toy, or novelty.” See TEX. PENAL CODE ANN. § 47.01(4)(B). As the parties 

stipulated, upon a single play of the device, the player may be awarded more than ten

times the number of points wagered. In that regard, the investigator testified in his 

probable-cause affidavit that such monetary limits were exceeded during his 

investigation. We hold the devices in this case are gambling devices as that term is 

defined in Penal Code section 47.01(4)(A). We sustain the State‟s sole issue on 

appeal. 
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V. CONCLUSION

Having sustained the State‟s sole issue on appeal, we reverse the trial court‟s 

order denying forfeiture and render judgment that the property that was the subject of 

the State‟s forfeiture motion is forfeited to the State in accordance with Texas Code of 

Criminal Procedure article 18.18(b).

_______________________________

GREGORY T. PERKES

Justice

Delivered and filed the 

12th day of May, 2011.