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With some chagrin, I have to report that Representative Hupp from my county has allowed herself to be the conduit for AMOT's newest effort: HB 1407, which authorizes a local option election to allow "amusement redemption machines" to be installed in licensed bingo parlors. I have problems with its constitutionality and will be researching that angle.
On the flip side, Representative Wohlgemuth has introduced HB 977 that would amend PC 47.01 to include "slot machines, video slot machines, video sweepstakes machunes" as "gambling devices," but leaves in tact the "fuzzy animal" exception.
I have seen the bill. Money talks. With little beeps and chirps, set to simulated spindles spinning with electronic versions of fruit and 7s appearing on them.
On a more serious note, at my boss's request, I traveled both to Corpus Christi and Austin to testify before the House Criminal Jurisprudence Committee on 8-liners. The committee's response to the efforts of the AG, other prosecutors, police and myself appears to have been Rep. Keel's bill (voted favorably out of committee fairly quickly) to create a chapter 47 defense for Indian gambling casinos. Until the law actually changes, however, we're still going after them with a full head of steam.
Scott, I don't think Keel's bill is directed towards 8-liners. No one has ever mentioned if 8-liners are OK under the IGRA (but maybe we should!), and the folks behind this bill have got bigger fish to fry, so to speak, regarding the type of casino gambling they want to OK.
Rick, let me know what you find out in researching HB 1407.
As for HB 977, does anyone else think that the additions may be pointless without removing the fuzzy animal exception? I mean, isn't it still an exception to that laundry list of prohibited devices (old and new) that the machine pays out in compliance with that exception? If so, I don't think the bill does what it would appear to do.
Any thoughts on this from anyone?
Does it matter to anyone that the 8-liners are random number generators that don't require any skill? Most games in the pizza places require you to stomp a mole or make a basket or shoot animated bad guys in order to win. All of the gambling seminars I've attended(1) indicate that the outcome on the 8-liner machine in question is predetermined. To do otherwise would expose the machines owners to potential losses once players became good at the game. Imagine a slot machine in Vegas you could learn to beat.
I guess my question is would a degree of skill requirement, regardless of the payout limit or in addition to the payout limit, help clarify what is and is not a legal machine? Assuming of course that there is not going to be an outright ban.
All the other suggestions I have seen that address this issue of 8-liners seems to muddy the water even more so I thought I would throw this idea out to further add to the mess.
Scurry County Attorney
We proposed an amendment which would specifically describe 8-liners and any other simulated slot machine in subparagraph (A) of section 47.01(4), and proposed that (B) be amended to provide that it applied only to a contrivance "not described in subparagraph (A)." Our amendment also would have actually defined "bona fide amusement purposes" to mean that kids, as well as adults, could play (to assuage the Chuck E. Cheese crowd). We didn't get any takers.
As to adding a degree of skill requirement, the ghost in the machine there is turning a misdemeanor trial into a battle of experts. Back in the days before the Amarillo Court of Appeals resolved the article 3, section 47(a) question, every time we geared up for a trial, the 8-liner crew brought in "experts" to spew rhetoric about the exacting degree of skill required to play an 8-liner "well." We, too, saddled up with some of the DPS guys and others who had studied these things and were aware that pressing the "stop" button merely told the device to go ahead and display the predetermined alignment of symbols, rather than continuing the simulated spin. Indeed, if memory serves, there is a video somewhere out there of an 8-liner during play which is slowed down to demonstrate that, when the stop button is pressed, the symbols will not simply stop spinning, but completely realign. In any event, we wound up trying the cases on the prizes awarded, since there wasn't much question in anyone's mind that, unless the prize scheme was within the "fuzzy animal exception," these things were gambling devices in an uncontroversial sense. If you put an 8-liner in front of a jury, they can pretty much tell it's a slot machine. Currently, we know operators out there are paying cash, which is a lay-down case if you can prove payment of cash as a prize. The operators all know our undercover guys, though. When they see them, the operation goes back into its "only replays are available" facade, since we've actively pursued the folks who award gift certificates, too (I noted that the bill to allow non-profits to run 8-liners in their bingo parlors would include gift certificates within the purview of "noncash merchandise." Would that change in the law be necessary if they currently were "noncash merchandise"?).
Not that I'm a bitter, obsessed man after five years of dealing with this ....
What's irritating about this whole eight-liner mess is that we're even involved in at all. Why was there a "fuzzy animal" exception to start with (except at the behest of the vending machine industry with lots of money to spread around). I think prosecutors in Texas can be trusted not to file on a 10-year-old at a pizza parlor trying to win a trinket.
The bigger problem, in reality, is where all of this is heading. At one time Texas was adamantly opposed to any form of gambling. The inroads of organized crime on the Texas coast in the 1940s should have been ample reason not to lower the bar on gambling. But slowly the opposition has been eroded: we have a state lottery, legalized bingo, pari-mutuel betting on horses and dogs, and charitable raffles. The concern about gambling in Texas has become so diluted that the average citizen sees the opposition to eight-liners as curious. There are no more felony gambling offenses. Bookmaking, the absolute lifeblood of organized crime, is a Class A Misdemeanor! No wonder there is no enforcement of any importance at the state or federal level. At some point, I am confident that a push for a constitutional vote on casino gambling will come, and, given the state's present financial plight, will probably pass as a new means of garnering revenue.
And you know what? Texas will be as equally unprepared as it is now to fight the encroachment of organized crime that will surely (as it is attempting to do now) follow. The Lottery Commission only has 26 investigators to monitor all of the lottery and bingo outlets statewide. I'll bet that a closer examination of the bingo parlors will see inflated overhead expenses going into the pockets of the operators, not charities, as was intended. The bigger answer is for the state to establish a strong statewide commission on gambling, as has Nevada and New Jersey, and give it some real teeth and resources to monitor and control the entire gamut of gambling activities. If not, the local prosecutor, who has now been abandoned by the Attorney General in helping to make eight-liner prosecutions, will be left holding the bag.
Give me a few minutes and I'll tell you what I really feel.
Obviously we prosecutors don't have much pull on this issue or the statute would ban such machines. I had not heard that the A.G. was no longer assisting local prosecutors in these matters. When did that start?
Gift certificates need to be excluded as a prize otherwise, you might as well allow cash prizes.If the statute remains, could you require that the prizes be maintained on the premises where the machine is located in an attempt to get rid of the Casino where the only thing located in the building are machines? Just trying to get a handle on this. I had several establishments in town a few years ago and convinced them to shut the doors but have heard their are efforts to open them again and it doesn't seem we are getting much support from the legislature despite representations that it would be fixed.
Having been the last full-time 8-liner prosecutor, let me echo Scott's comments about what else HB977 needs. I have actually had trials where my undercover officer played video poker, I used the game in front of the jury, and put it in evidence. And the defense attorney argued that the Video Poker machine was still legal if it met B's requirements. My response: How can a video poker machine ever be "designed, made and adapted SOLELY (emphasis added) for bona fide amusement purposes?" It sure would be a lot easier if the law made it clear that devices listed in A cannot comply with B.
The second thing is gift certificates. The statute needs to add a definition that says "A gift certificate is NOT a noncash merchandise prize, or a representation of value redeemable for a noncash merchandise prize." The Waco Court of Appeals wrote this in 2001, and a federal judge in El Paso wrote a footnote agreeing with this interpretation. The industry's defense lawyers still argue it is not the same as cash, because of it's limitations.
These two additions to HB977 sure would help close this loophole that cause Mr. Miller so much pleasure!
One question: Why doesn't anyone inform some of these legislators that the industry standard for average payouts on these types of devices are 55-65%, compared to actual slot machines where gambling is legal (Vegas, Louisiana) that have a mandated payout percentage in the mid-90's? There own attorneys and manufacturers admit this.
David, any additional remarks on the earlier suggestion that the AG is no longer assisting prosecutors in these cases?
While we continue to wrestle with these slot machines in our communities, I have to pass on my appreciation to Bell Lewis (now in El Paso fighting the dopers), David Glickler, and the other members of the staff in the Special Crimes Division for the excellent work they did for me and other prosecutors. While they may be going on to other just as important crimes, I certainly appreciate their attention and expertise in these offenses; they made a difference in my county.
Ooops, my clumsy fingers should have typed BILL Lewis.
It is not a suggestion, it is a fact, as far as hands on, first-chair or second-chair in-court type assistance. I still have documents and case law notebooks. Also, I still have cases to handle in four counties.
Rick, if you click on that little icon with the pencil at the top of your posting, it will allow you to correct your spelling, even after you have posted the statement.
I appreciate the support and the opportunity I've had to work with you as well as all the prosecutors and their offices in the lats two years on this 8-liner problem.
As I said before, if anyone ever needs a quick cite to case law or some documents or even just some basic background information, I am still happy to provide what help I can.
I hadn't heard you guys were getting out of the 8-liner business. I second the sentiments of one of the previous posters...I want to thank you and your predecessor for all of the help and assistance you have given me over the last few years. You were an excellent sourse of information. I always knew I could count on you to be on top of the current trends and it was great knowing your assistance was just a phone call away.
What sorts of cases will you be moving on to now?
I have been assigned to the Money Laundering Task Force. That's better than what's happening to a lot of state employees right now! I work on the task force that works with law enforcement agencies statewide who encounter people transport large quantities of unexplained currency. I am happy to report we just secured a conviction and a 12-year sentence on a defendant in Gonzales County this week! He was captured after a flight, and then officers located $29,000 in currency in the vehicle and in the bar ditch where my defendant ran.
I appreciate the kind words, and would remind you and others I am still staying on top of the trends, to be a resource for all prosecutors on the continuing difficult issues regarding 8-liners.
That the court would render judgment for the State in One Super Cherry Master contrary to the jury verdict and intermediate court opinion upon proof that redeemable gift certificates were awarded by the machine could hardly be a clearer signal that we have had an awful lot of illegal gambling going on. They came from South Carolina, where do they go next?
[This message was edited by Martin Peterson on 04-03-03 at .]
Hardy is very clear as it applies to 8-liners. What about sweepstakes machines? Do we treat them as illegal gambling devices also or do they come under their own specific statute that allows their continued operation? Any input would be appreciated since the media is already calling to find out what we are going to do.
The same day we ran those raids in Johnson County, we seized a sweepstakes machine. For one dollar you got a two minute phone card, and could win up to five hundred dollars cash.
The same logic applies. It is a game of chance, takes consideration, and awards an amount of more than ten times the single play amount. Gambling device.
The judge in Johnson County agreed, and subsequently the sweepstakes folks agreed to forfeit rather than have a binding judgment. I am certain that Waco would have upheld this had the sweepstakes folks pushed the appeal. A big thanks to Bill Lewis for carrying the ball for Johnson County on these cases.
It has been our contention that these are still illegal gambling devices. It is a devious effort to circumvent the gambling statutes with parts of three other statutes. The bottom line is that there is NOTHING in Chapter 47 that allows a defense to prosecution for the activity being conducted.
We prosecuted one of the key figures in the sweepstakes machine industry in Comal County, and cases have been pursued with success in Tarrant County, Bexar County, Webb County, El Paso County and Nueces County, to name a few. my defendant in Comal County pled to a Deceptive Business Practice charge, and the "corporation" paid a $10,000 fine. Plus all the machines and the monies were forfeited to the State.
There is a related case to what Stuart talked about, the phone card sweepstakes machine case, Jester v. State, out of Texarkana. It supports pursuing these cases as well.
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