If one receives an increase in calls concerning poker playing at bars you can thank the TABC. Their most recent newsletter that was mailed out in the last two weeks asks permit holders to call their local DA for advice.
"If you are planning on holding a poker
tournament or have eight-liners in your business,
contact the District Attorney�s Office
in your area to ensure these games can be
played in a legal manner." TABC TODAY, Summer/Fall 2004, TABC.
Does anyone actually try to give advice on whether particular conduct violates a penal statute? I always just tell them to consult with their own counsel and thank them for letting us know what they are planning on doing.
We are getting quite a few calls here at the association on this. We do our best to talk it through with the outfit planning the event, with the caveat that only the local CA/DA has the power to decide what will or won't be prosecuted.
That being said, though, there are very few schemes that people have that are NOT clearly illegal. Almost every one is not hard at all. They involve people betting their $ on a card game played in a public place. So, those folks need to look out for low-flying criminal charges....
Unfortunately, criminal charges often are not the only things that are low flying in these situations. With all due apologies to my Harley-wrangling friends out there, we recently got tatooed in the media (I couldn't resist a small bon mot ) for opining that poker runs (you know, go to bar A for your first card, bar B for your second and so on, then compare hands to see who wins the $500 or more pot) were just as illegal as the pervasive Texas Hold 'Em tournaments that have sprung up everywhere. Thus, Martin's advice seems prudent.
As the former gambling czar (I can't be the guru because Bill Lewis probably trademarked the nickname), even though I've been officially out of the gambling business (the official stuff) for almost 2 years, I still get 1-2 calls a month about these schemes. I tell them pretty much the same as TDCAA, about being up to the locals. On the flip side, I am happy to keep discussing these issues with any prosecutors who haven't had the luxury of committing Chapter 47 and its body of case law to memory!
David- How about "Czar Emeritus?"
My two cents are: think long and hard about the policy direction you want to take. When the first poker tournament surfaced here (Lubbock), we adopted what we thought was a pragamatic, pro-business policy: as long as the players paid no consideration of any kind to join the game, they could play for a prize. Personally, I thought these poker tournaments were a fad that would be short-lived and the restrictions we had placed on the game would keep the games from spreading. We were wrong. Every sports bar in town now has a poker night. (One strip club has a poker game in their back room with the slogan "Liquor in the front, Poker in the rear." Classy.) So far, the bars have been pretty good about sticking to the "rules" but the phone rings several times a week with questions from another bar that wants in on the action.
If I had it to do over again, I would more strictly construe 47.01(1) which defines a "bet" to mean "an agreement to win or lose something of value solely or partially by chance." By focussing our policy on a bet being a chance to "lose" something of value, and ignoring the chance to "win," we have opened the door to an entire industry.
As for answering questions about the games in the first place, we limit our responses to opinions as to what is "illegal" rather than what we would consider to be an exception to prosecution or to possible defenses. In the case of poker, we advise business owners that we look at whether the players are required to pay anything of value to join the game. If so, it is a violation of the law and we will prosecute.
Why thank you John!
I guess it all depends on the emphasis placed on the word "or," correct William Jefferson Grace? I think the problem is the long-standing accepted elements of a gambling offense requiring consideration as one of the three main elements. If no consideration is paid, you don't reach the third element of a chance to win a thing of value. This is derived from old case law interpreting gambling statutes.
Sure, David, if you want to get all "legal" about it.
What we looked at, in our pragmatic West Texas way, was the harm the law was designed to prevent. Our policy was based on limiting the opportunity for a citizen to lose his "grocery/rent/child support/unpaid taxes/light bill/TTU season ticket" money in an unregulated game of chance. If a bar owner chooses to give his money away, what is the problem?
Your more learned analysis is probably better.
Looks like its already happening. I got my first Texas Hold'em Tournament case on my desk, from TABC today. I have a question that maybe you folks can help me with. Usually in my gambling cases (8 liners) I will have the defendant's plead to possession of a gambling device charge so I can get forfeiture of the devices and proceeds under 18.18(a).
I was taking a look at 18.18(a) again today and it doesn't look like that is going to work with these poker tournaments. I looked at the definition of gambling parapernalia and that isn't going to work. If we charge them with Gambling Promotion or Keeping a Gambling Place then 18.18(a) will not work am I correct? My question then is can we forfeit the proceeds in poker cases and if so, how?
You're not limited to proceeding under subarticle (a). Instead, you would go forward under subarticle (b), and the process would be that described in the thread titled "Art. 18.18 -- HELP!". (I haven't yet learned to link another thread into my reply, yet. I'm no John Bradley or Martin Peterson, you know.) There is no pat definition of "gambling proceeds" in the statute, as you're probably aware, so you'll have to rely on case law. Some helpful cases include Alexander v. State, 553 S.W.2d 825, 827 (Tex. Civ. App.--Beaumont 1977, no writ) (affirming forfeiture of money found in pockets of clothing located in closet with materials used to conduct policy operation); and Burnom v. State, 55 S.W.3d 752, 753-54 (Tex. App.--Houston [14th Dist.] 2001, no pet.) (discussing burden in cases seeking forfeiture of gambling proceeds). Good luck!
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