F&H Investments, 55 S.W.3d at 668 held that the discovery procedures of Section 9 of the Rules of Civil Procedure apply to a show cause hearing under art. 18.18(f) of the Code of Criminal Procedure. While I thought this was flat wrong all along, the decision in Hardy makes this holding even more suspect. Still, I prosecute in the Tenth District and Mr. Fenoglio (of Austin) is now raising the issue in my 18.18(b) cases. Anyone aware of contrary (post-Hardy) authority or cases in the pipeline involving this issue? Obviously, Mr. Fenoglio simply wants to try to increase our storage costs (we have 300+ machines)in hopes we will compromise. He also asserts entitlement to a trial by jury and that Rule 245 applies.

He has also asked for an abatement asserting that the Fifth Amendment applies in forfeiture proceedings citing United States v. Currency and Coin, 91 S.Ct. 1041 and Burton, 749 S.W.2d at 507 and United States v. Currency, 626 F.2d at 15. Anyone have ideas about that claim? Any assistance will be appreciated.

[This message was edited by Martin Peterson on 02-18-04 at .]

F&H Investments probably is correct as far as it goes. As Hardy confirms, an article 18.18 case is civil. Thus, the civil rules apply to the extent they are not inconsistent with the statute. From this, the only substantial holding of F&H Investments is that civil discovery rules can be applied in article 18.18 forfeiture cases, and that a party must timely respond to discovery requests propounded in such a case. Because article 18.18 appears to contemplate an expedient hearing before the magistrate who issued the search warrant, and makes no reference to Rule 190 of the Rules of Civil Procedure (requiring discovery control plans in civil actions), I think there's a sustainable argument that article 18.18 encompasses a legislative intention that forfeiture proceedings in gambling cases be conducted in a summary, expeditious manner. Consequently, a determination by the trial court to proceed to judgment before the deadline for responding to discovery would hardly be abusive of discretion.

As to the jury demand, I have successfully specially excepted to an assertion of entitlement to a jury. I did so by special exception because I intended to seek summary judgment (for strategic reasons), rather than set the matter for a quick hearing. If you'll e-mail me, I'll send you the brief I submitted to the court (not that you'll specially except, but it will give you the authority I used to argue against jury entitlement in an article 18.18 case).

The abatement argument lacks merit, as well. Again, Hardy points up that an article 18.18 case is a civil one. The Texas Supreme Court has expressed its view on the interplay of Fifth Amendment rights and delaying civil proceedings in the following terms:

We quote the holding in that case which we think is quite material to the situation we have before us:
'We hold that the trial correctly decided that it could not quash the subpoena on the general allegation that it was intended for purposes other than those for which it purported to issue and that it might result in questions which the subpoenaed witness could constitutionally refuse to answer. The privilege of the Fifth Amendment must be exercised in connection with precise questions and not as a general excuse for refusing to appear in resonse to subpoena. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.'

Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962). Thus, if a trial court does not put off proceedings in anticipation that a litigant will assert his Fifth Amendment privilege, it does not abuse its discretion. Id. At least, that's what I think.

One thing I am confused about is this: If it is an 18.18(b) hearing, then there is no prosecution or conviction, and then wouldn't the 5th Amendment privilege be a moot issue? Or at least only applicable to any questions about current or future activities? The statute clearly indicates that unlike Chapter 59, the criminal case should proceed before the civil forfeiture case is tried.

Okay. From now on, all eight-liner questions should be referred to someone who actually wins their cases on appeal.

Scott: I had little more success than you. My judge ruled F&H remains "good law" and that the claimants were entitled to trial by jury. He denied the plea in abatement (which was based on Fifth Amendment privilege), but upon the condition that the State would be barred from any criminal prosecution if it chose to proceed under 18.18(b) at this time. His reasoning was as follows: "The State has elected its remedy of seeking forfeiture without prosecution on the underlying offense(s) and if it contends those prosecutions will not be barred as a result, then it is incumbent on the State to stop this proceeding immediately." Being between a rock and a hard place, it looks like I will have no option but to comply with the discovery requests and prepare for jury trial. (Seeking to mandamus the court to proceed with the show cause hearing would appear to be the only alternative). I now have some briefs on these subjects if anyone thinks they might make use of them.

I think your judge was dead wrong on the jury issue, but there's probably no abuse of discretion or reversible error in that decision. Perhaps you can make lemonade out of lemons. I would be inclined to serve the claimant with a comprehensive set of discovery requests (request for disclosure, interrogatories, requests for production and requests for admissions). You can still avoid a jury by filing a motion for summary judgment. I have forms that have worked in the past if you want them (while our appellate record isn't perfect, we don't lose every case).

Martin,

In drafting a set of request for admissions, draft them so that the responses are that the claimants agree to all your facts, without intejecting any law or legal interpretations. Then, when pursuing the Motion for Summary Judgment, you can also point out to the court that there are no disputes as to any facts, and thus there is no need for a jury. Several of our UNPUBLISHED cases have held there was no entitlement of a jury in these forfeiture cases where the facts are agreed.

Though Fenoglio may be aware of these holdings, I doubt he will be able to generate a fact issue. If there is no issue of fact, than Summary Judgment based on legal interpretation would be proper.

FYI, for all you 8-liner fighters, I was told of a "NEW" approach to paying out. A woman called our consumer protection division complaining. When she wins credits at her game room, the method of payment is they meet you at Wal-mart and pay for a shopping spree worth the value of your winnings. The woman was upset because they were shorting her and she wanted help!

In my single case which has actually gone to "trial", the operator testified that he never paid any cash to his customers. Instead, he insisted they showed up and spent $20-100 a day amusing themselves by watching the cherries spin because their name was placed in a container when they arrived and twice a day a name was drawn. If your name was drawn and you were still present in the gameroom, you were given a possible combination to the proprietor's on-site safe. If your combination worked, then you got to keep the contents (up to $500). So far as I can tell, the latter part of his testimony was truthful. I (and apparently the judge) had a hard time believing the no-cash for accumulated credits testimony. The operator also acknowledged average daily receipts from his 54-machine operation of $1000. Not too hard to figure out why gaming is such a big business.

Keep in mind that it has been my position that, under Burnom, 55 S.W.3d at 753, the State may proceed under art. 18.18(b) even though it may contemplate seeking a conviction for a criminal offense other than that defined in sec. 47.06, PC. Thus, in answering discovery requests I was contemplating asserting material was privileged under Kinnamon. But, I find that arguably such a stance invokes the prohibition of Rule 193.4 (c). Scott, if all you were going to do was get the court to publish its previously non-precedential holdings in the Vanaman case, I must say that I would just as soon no motion for rehearing had been filed. Now it seems certain that the "Rules of Civil Procedure apply" holding will be a part of our law for some time to come. So much for the summary procedure envisioned in the statute (which, of course, is far more "summary" than that talked about in Rule 166a).

I am fast becoming a fan of pursuing these forfeitures only under art. 18.18 (a) (to which presumably no civil discovery procedures apply).

Sorry about the fallout from my luckless efforts. The trainwreck I engineered would've been available for citation anyway, however, since a civil memorandum opinion under Rule 47.4 is not the same as an opinion "not designated for publication" and thereby deprived of precedential value. CompareTex. R. App. P. 47.2(a) with id. at (b); see also Tex. R. App. P. 47.7; Notes and Comments, Tex. R. App. P. Ann. 47 (Vernon 2003). Unless you engage in extensive summary judgment practice, the Vanaman decision is of questionable applicability (the holding is that a fact issue existed as to whether we complied with the statutory requisite of notice from the magistrate).

While I concur with the frustration over the extra time that may result from application of the Rules of Civil Procedure, the courts had recognized gambling forfeiture cases as civil long before Rumfolo, so application of the Rules of Civil Procedure is no significant leap of logic. Assuming full application of the civil rules, however, one avenue to explore is to request a level 3 discovery control plan under Tex. R. Civ. P. 190.4, under which discovery and trial deadlines are significantly accelerated (e.g., trial within 30 days). Under the statutory language contemplating 20 days to appear under pain of forfeiture of interest, such a scheduling order would be difficult to characterize as abusive of discretion.

The problem I see with restricting forfeiture to art. 18.18(a) is that it only applies to a narrowly denominated listing of offenses. One of the most common for which our juries have shown a propensity to convict in 8-liner cases, keeping a gambling place, will not suffice to trigger (a). Thus, we're back at square one if there's not an accompanying conviction for possession of a gambling device/gambling paraphernalia.

This prattling comes with a disclaimer: Since I got tagged for a loss on an 8-liner case in one of the most conservative courts of appeals in the state, you should assign a commensurate value to what I have to say.

[This message was edited by Scott Brumley on 04-26-04 at .]

They may be "civil" proceedings but that does not necessarily make them an "action of a civil nature" within the meaning of TRCP 2. Furthermore, the 18.18(b) proceeding is actually heard in a magistrate's court, not in the "justice, county [or] district court" per se. F&H did not consider any of these arguments, even if Bill Lewis raised them. The comment to Rule 2 could not be plainer: "The 1943 and 1947 amendments make clear the inapplicability of the rules to special statutory proceedings insofar as [the] statutory rules of procedure . . . differ from these rules." That is where the discussion should come out. Nothing in Rumfolo or any other case (aside from F&H)deals with this issue so far as I can tell. In my case I feel certain the responses to my discovery requests would be filled with references to the Fifth Amendment. Plus, my position is I do not need to know much about the defense ahead of time in order to win the case ... the devices are gambling devices no matter what you want to say about them (short of obvious perjury). So, I am not really interested in drafting elaborate discovery requests under those circumstances. Time for me to go recite the Serenity prayer now.

Do you think you could convince the 10th court to overrule F & H Investments based on the comment? Perhaps article 18.18(b) could be pigeonholed into the scope of the "special proceedings of a civil nature provided for in the Penal Code," with the appropriate explication of statutory history to show that the current statute derives from the old Penal Code. The question I might anticipate would be: are the requirements of the Rules of Civil Procedure really inconsistent with article 18.18(b)? The statute prescribes a 20-day period to "appear," but that could well be interpreted to mean "answer."

Don't misunderstand me. I'm all for streamlining. But courts waffle on it.

P.S. If you get a bunch of Fifth Amendment assertions, file a motion to compel. Argue Meyer v. Tunks and point out that in civil cases, the Fifth Amendment is not a blanket protection. Portions of just about any thoughfully-worded interrogatory or RFP are properly answerable without hiding behind the Fifth Amendment.

Not to further extend this discussion, but in the event there is a claim of fifth amendment, I do not believe you can force a waiver per se in a civil proceeding, but you can use it so as to prevent the person from offerring any evidence at trial that related in any manner to evidence he failed to disclose under the claim of privilege--and I think depositions might be far effectively used then written discovery to hamstring the case of your opponent or possibly to stirke their answer resulting in entry of a default judgment (or a summary judgment) by demonstrating that the opponent can not offer any evidence sufficient to create a fact question due to their use of the privilege--the latter I have had great success with.

ADVERSE INFERENCE:
Further, one could argue an adverse inference can be drawn in a civil case from the refusual to answer--the only privilege that can be used against a witness as under Evidence Rule 513 (c) and (d) where one is not entitled to the jury instruction on adverse inferences as with other privileges.

Finally, the underlying princple that governs forfeiture is not to punish someone, but to remove contraband from the public(ie property that is being used for illlegal purposes that makes the property little different from cocaine, etc). When is it that a person might escape a conviction because his fourth/fifth and all other constitutional rights were violated, and having escaped conviction, is NOW ENTITLED TO GET HIS COCAINE BACK (or machine gun, etc)???

I would argue the same principle should apply to any forfeiture case where the forfeiture is not for purpose of punishment but is the result of its use as an illegal instrument, and to keep it from being so used in the future. So the privilege, if anything, should be grounds for an adverse inference or more.

[This message was edited by LV on 04-27-04 at .]

With that eloquent reference to the offensive use doctrine, I say "amen."

quote:

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Unless you engage in extensive summary judgment practice, the Vanaman decision is of questionable applicability (the holding is that a fact issue existed as to whether we complied with the statutory requisite of notice from the magistrate).

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My judge looked at footnotes 7 and 9 of Vanaman and determined that regardless of the merits of my "no-evidence" motion for summary judgment (or perhaps I should say the lack of merit of the machine owner's response), Rule 166a was not available as a means of resolution for our case. In other words, he agreed with Reavis that forfeiture procedures authorized by the Code of Criminal Procedure do in fact conflict with the Rules of Civil Procedure authorizing summary judgment. So, now you pick and choose which portions of the civil procedure rules apply in an 18.18(b) proceeding, and once a jury trial is demanded the summary proceeding described in the statute goes out the window. Anyone actually tried one of these to a jury post-Hardy? I may need some help with strategy or the charge.

Nothing like dicta in a memorandum opinion becoming the controlling law. But then, I guess memorandum opinions by definition only involve settled issues.

[This message was edited by Martin Peterson on 07-14-04 at .]

Martin,

We have not tried any forfeiture cases to juries since Hardy, and I don't know of too many criminal trials either. Most of the silk ilk have waived white flags when push came to shove.

We have drafted a jury charge for use in a criminal trial post-Hardy. It may be a start to at least showing the jurors the law. Whether or not they drink from it is always another story. Look on the bright side: win or lose, there will be an appeal!

I think maybe my case is going to trial because the owner of the machines purports to be a corporation and none of the individuals involved seems to think they will end up with criminal liability. Although they delivered their machines to a public place in an area known for illegal gamerooms (at the time), they seem to feel there is nothing to lose by fighting us- apparently upon the idea someone else turned their amusement vending machines into gambling devices. I am beginning to see why Tarrant County prefers not to file 18.18(b) actions.

One new thought for anyone following my course of action. When the court refuses to set the show cause hearing because the claimant has demanded a right to trial by jury, demand that the court enter a specific finding that the failure of 18.18(b) to provide for a jury trial means the statute is unconstitutional and appeal that issue directly to the Supreme Court. Effectively, that is what occurred in my case, but as the posts above demonstrate I was thinking mandamus was the only possible relief (and so far have chosen not to test that theory in the Tenth Court of Appeals). But when you combine a demand for jury trial with the "holding" in Vanaman, you quickly see the law needs some quick and authoritative construction. A direct appeal might be the answer.

Martin: I apologize again for the misdirection wrought by the Vanaman case. I think your judge incorrectly relied upon its dictum, but my opinion is worth a little less than that of Jane Fonda in our great state. Your idea of a direct appeal based on a finding of unconstitutionality is a good one, but I can foresee a crafty trial judge entering an order under the rubric that a statute is presumed to be enacted to be in compliance with constitutional directives, and that article 18.18(b) can be interpreted to simply provide for a magistrate making the determination after the jury has resolved the fact issues.

David: Don't you think that a post-Hardy jury charge (assuming without conceding that a jury is properly available in an art. 18.18(b) proceeding) would essentially be a two-issue (or perhaps a three-issue, depending on the circumstances of the case) submission? After the requisite instructions and definitions culled from Hardy, wouldn't the issues essentially be:

1. Do you find from a preponderance of the evidence that probable cause existed to support issuance of the search warrant? (Answer "yes" or "no." If you answer "yes," answer question(s) 2 (and 3). If you answer "no," do not answer question(s) 2 (or 3).)

2. Do you find from a preponderance of the evidence that the devices seized pursuant to the search warrant were gambling devices?

3. (if appropriate) Do you find from a preponderance of the evidence that the devices seized pursuant to the search warrant were gambling paraphernalia?

Among the instructions would be the shifting negative burden under Hardy. That is, if the state shows that probable cause existed to support the warrant, the claimant must prove that the devices seized were not gambling devices/gambling paraphernalia. Thus, the instruction would be something like, "unless you find from a preponderance of the evidence that the devices seized were not gambling devices/gambling paraphernalia, you will answer "yes" to question(s) 2 (and 3)." There would also have to be a question on gambling proceeds, assuming money was seized.

Scott, the title of your post alone shows how trenchant you are and thus makes your opinion worthy. Our arguments are only as good as the hearer makes them though or as I recently heard: "I can give you the facts, but I can't make you understand them."

And Vice Versa!

Scott, per Hardy, the warrant satisfies the statute's requirement of probable cause. This issue is dead long before an 18.18(b) hearing, even with a jury trial Thus, your 1st question would not be submitted to the jury. All of the burden is on the claimant.

The jury should be instructed that there is probable cause to believe that the devices and proceeds are gambling devices and gambling proceeds. Then, the only issue is "Do you find from a preponderance of the evidence that the devices/proceeds seized pursuant to the search warrant were NOT gambling devices/gambling proceeds? Answer yes, we do so find, or no, we do not so find."

Isn't the entire issue going to come down to the interpretation of the word cash? And as defined per Hardy, the charge has at least four ways to define cash.