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The case is Jester v. State, 64 S.W.3d 553 (Tex. App.--Texarkana 2001, no pet.)
Jester argued at both trial and on appeal that the devices weren't gambling machines, but merely a creative way to market phone cards. The issue at oral argument centered around the definition of "consideration" and whether there was sufficient evidence to support a finding that the dupes -- err, I mean, purchasers of the non-working phone cards -- exchanged consideration for the "opportunity" to win a sweepstakes. Jester likened his "sweepstakes" to the scratch off games a McDonalds and Burger King.
The Sixth Court rejected that argument.
Kudos to Grant Sparks (of the AG's office) and DA Bill Jennings (Gregg Co.) on prosecuting a good case at the trial level. If all appellate prosecutors were as lucky as I was to have had such a great record on appeal, there would be more people begging to leave the trial court for the upper eschelons of prosecutorial work.
We had an entire casino open up on the "charity sweepstakes redemption" racket. They advertised that they could lawfully pay cash because they were running a "charity sweepstakes." The operators now are looking at the business end of six organized criminal activity indictments. Meanwhile, we seized the 124 machines and all the cash in the establishment (which totaled about $35,000, if memory serves me correctly). The only difference between these machines and any other 8-liner is that these machines could be played once au gratis. After that, you had to pay to play. I agree completely with David. Chapter 47 contains absolutely no defense, exemption, exclusion or other exculpatory contemplation of "sweepstakes machines," whether putatively regulated under chapter 43 of the Business and Commerce Code or otherwise.
As an aside, the owners of the devices had called ahead and asked our opinion about their legality. We wrote them back and told them that if consideration was paid for the chance to win a prize based on chance (particularly cash), it was gambling, no matter what kind of legal veneer was used to describe it. After the seizure, they sued us (in a different district court than the one which issued the search warrant and in which the criminal cases are pending), claiming we had given them the "green light" to open and seeking an order for return of the devices. The court denied our plea to the jurisdiction. That case is now up on interlocutory appeal.
If y'all are really interested in this stuff, the House Licensing and Administrative Procedures committee is hearing a couple bills tomorrow, April 10, which would authorize local options for 8 liner parlors. The relevant bills are HB 1407 by Hupp and HB 2440 (a committee substitute not yet posted) by Flores.
[This message was edited by John Rolater on 04-09-03 at .]
In March, Representative Kino Flores (D - Mission), Chairman of the House Licensing and Administrative Procedures Committee, requested an Attorney General opinion on several aspects of the 8 Liner situation, including questions regarding replay, match play, accumulation of credits and sweepstakes machines. The opinion request made specific reference to a series of notice letters sent by the Lubbock CDA to operators of 8 liners within the county. We learned (through the fax headers on the letters) that the request was prompted by a letter I sent originally to a local family restaurant / redemption arcade (partially owned by an 8 Liner supplier) and then forwarded to the operator of a so-called charitable sweepstakes operation (that had been paying out in cash before they closed down) and then to the AMOT's lawyer, who passed it on to the Hon. Rep. Flores. I mention this because I think it shows the connection between the various types of gambling operators. There are no "good guys" when it comes to 8 Liner operators. Interestingly, the request was withdrawn on 3/26/03 at the request of the family arcade operator, who told the State Rep that they had decided that they did not want the AG to issue an opinion after all. Too bad, because I think the law supported out position over that of the 8 Liner operators, and an AG opinion would have been nice.
Finally, David Glickler is a terrific asset and I am sorry that he will not be an "official" resource in the fight against 8 Liners.
Question for ya:
In 1999 several of our local law enforcement agencies sent out some letters to all the local establishments regarding 8 liners. Most business closed down but a few remained open. Cases were made against a few of those individuals and we went to trial on their cases. Now, the problem we are having is charitable game rooms. Apparently they are going to the local fire departments and city councils and convincing them that they can open charitable game rooms. I heard that one such game room paid out a significant jackpot in cash the other night. From my understanding of the bingo enabling act, it doesn't permit 8 liners unless they also comply with the exception found in the penal code. Am I wrong on this? Also, is anyone else having problems with the charitable game rooms?
One problem with the so-called "charitable sweepstakes" is that they often get to the charities first. This leaves us, as prosecutors, having to convince groups like the VFW, Elk's Club, or volunteer fire departments that they have made a mistake by hooking up with an eight liner operator. It also means convincing them to give up a current cash stream. What we have tried to do here (in Lubbock) is get to the charities before the sweepstakes groups. We let the charities know that they are the targets of these illegal operations and that they should not believe the legal garbage the eight-liner types may present. We also let them know that if they choose to lend their names to these outfits, we will still shut them down, and that when we do, we will be forced to seize their illegal gains. Our briefings have been received very well and, to date, none of our local charities have joined up with any eight-liner operators. Our County Commissioners have even started requiring the volunteer fire departments that come to the County for funding to agree not to engage in "charitable fundraising which relies on electronic, electro-mechanical or mechanical devices to award prizes." In short, it is much easier to get the charities to stay out of gambling than it is to get them to stop after they have started.
Watch out for HB1407 by Hupp. This bill would allow the VFW and Elks to have 8 liners in their bingo halls. The interesting thing is that a good number of the folks who testified in favor of this bill have been prosecuted for running illegal 8 liner casinos. The author had no response for that. The bill passed out of committee this week.
Here's a recent article on this bill ...
The Brazosport Facts
is a link to the Supreme Court's ruling that the 1st Amendment doesn't protect charities from accusations of fraud regarding the nature of the funds raised. This might be a useful tool to scare off any of your businesses advertising that they benefit charities. Documents seized from dozens of these locations establishes a standard distribution of 10-11% of the net proceeds to the charities. Seems kind of opposed to what they advertise, particularly the papers distributed by the machine that says "You just made a $5 donation to the VFW."
This bill is set for floor debate in the House on Thursday afternoon (5/8/03), fyi ...
After spirited debate, HB 1407 was defeated soundly on the House floor late Friday night by a vote of 86-37. If you're interested in how your rep voted, check it out below ("r" = republican; no letter = democrat):
AYES - 37
Burnam; Castro; Chavez; Coleman; Cook, Robby; Davis, Yvonne; Deshotel; Dukes; Elkins(r); Flores; Geren(r); Giddings; Grusendorf(r); Guillen; Gutierrez; Haggerty(r); Hardcastle(r); Hochberg; Hodge; Hupp(r); Jones, Elizabeth Ames(r); Keel(r); Lewis; McClendon; Menendez; Miller(r); Naishtat; Pickett; Quintanilla; Raymond; Rodriguez; Rose; Solis; Thompson; Uresti; Villarreal; Wise
NAYS - 86
Allen(r); Baxter(r); Berman(r); Bohac(r); Bonnen(r); Brown, Betty(r); Brown, Fred(r); Callegari(r); Casteel(r); Chisum(r); Christian(r); Cook, Byron(r); Corte(r); Crabb(r); Crownover(r); Davis, John(r); Dawson(r); Delisi(r); Denny(r); Driver(r); Dutton; Eissler(r); Farabee; Farrar; Flynn(r); Gallego; Gattis(r); Goodman(r); Goolsby(r); Griggs(r); Hamilton(r); Hamric(r); Harper-Brown(r); Hartnett(r); Heflin(r); Hilderbran(r); Hill(r); Hope(r); Hopson; Howard(r); Hughes(r); Isett(r); Jones, Delwin(r); Jones, Jesse; Keffer, Bill(r); King(r); Krusee(r); Laney; Laubenberg(r); Luna; Mabry; Madden(r); Marchant(r); McCall(r); McReynolds; Mercer(r); Merritt(r); Moreno, Joe; Morrison(r); Mowery(r); Noriega; Paxton(r); Pena; Phillips(r); Pitts(r); Puente; Reyna(r); Riddle(r); Ritter; Seaman(r); Smith, Todd(r); Smith, Wayne(r); Solomons(r); Stick(r); Swinford(r); Talton(r); Telford; Truitt(r); Van Arsdale(r); West, Buddy(r); Wilson; Wohlgemuth(r); Wolens; Wong(r); Woolley(r); Zedler(r)
PRESENT-NOT-VOTING - 2
ABSENT - 25
Alonzo; Bailey; Branch(r); Campbell(r); Canales; Capelo; Dunnam; Eiland; Ellis, Dan; Garza; Hegar(r); Homer; Hunter(r); Keffer, Jim(r); Kolkhorst(r); Kuempel(r); Martinez Fischer; Moreno, Paul; Nixon(r); Oliveira; Olivo; Rangel; Smithee(r); Taylor(r); Turner
That's one bad idea defeated for now . . .
Was this the only 8 Liner bill to make it out of committee? Are we out of the woods yet for this session?
Yes and No.
Yes, this was the only 8-liner-related bill to come out of a committee.
No, we're not out of the woods because 8-liner-related amendments can be filed onto bills on either floor.
We'll try to keep you as up-to-date as possible as things develop.
The AG, yet again, has said an 8-liner is an 8-liner:
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