About 1 1/2 years ago, a man running an 8-liner shop pled guilty to misdemeanor gambling charge, got deferred for 1 year. The original judgment did not mention forfeiture of the machines, gift cards, and money seized during the raid. Now the guy is off deferred probation and wants his machines back. I had the judge who did the return of the search warrant issue a show-cause order under Art 18.18(b) since there was no "conviction." Is an Art. 18.18 forfeiture like Art 59 forfeiture, in that they are civil in nature? What rules apply? I know we have to show pc, then the burden shifts to the Defendant to show that the items are not contraband, but procedurally I am lost. I've never done one of these forfeitures before. HELP!

The proceedings are civil in nature. The hearing itself is relatively simple from the State's perspective. Pursuant to Hardy v. State, your only burden is to establish probable cause for the intitial seizure by a preponderance of the evidence. That is most easily accomplished by (a) introducing the affidavit for search warrant (offered to prove the basis for the court's determination of the existence of probable cause) and the warrant itself into evidence, or (b) asking the court to take judicial notice of same if it already is in the court's records (courts in civil cases are broadly authorized to take judicial notice of their own records). You can rest at that juncture, if you choose. At that point, the burden shifts to the claimant to disprove the nature of the property as gambling devices/paraphernalia and/or gambling proceeds. If the lawyer representing the claimant is a sharp one who has read the Hardy opinion, you may see an attack on the validity of the warrant. Thus, it is advisable to review the warrant and be prepared to shore it up in your rebuttal case. You very well may be able to argue, as well, that the claimant's plea (assuming he didn't plead nolo contendere) was a judicial admission of the gambling-related nature of the property. Thus, you may want to have the plea papers ready for admission into evidence. If your claimant tries to bring in some "expert" on the operation of eight-liners, simply be ready to voir dire the "expert" on whether he/she examined the machines and/or was present during their operation at the location in question. When he/she answers "no" (as he/she presumably must), move to exclude their testimony as lacking relevance, acceptance in the relevant community regarding testing and evaluation thereof, and trustworthiness under Daubert/Robinson/Jack Gammill Ford and Rule 702. In the final analysis, it is helpful to recall that the claimant's burden in an article 18.18 hearing is to convince the judge who issued the search warrant that he/she screwed up. Please feel free to contact me with any questions, and you might also consider contacting David Glickler with the AG's office in Austin (he's done a ton of these, if memory serves).

Scott has as always answered the question but as he stated, I've been involved in numerous such cases and handled several that went on appeal. You can reach me at 512-463-3088. Let me know if I can help.

Thank you Scott & David for your help. David, I will be calling you because I am sure there will be more questions as this case progresses.
One that comes to mind is the style of the case. Since this forfeiture started as a show cause order, I styled it State of Texas v. Defendant, then I listed the contraband that was seized during the search in the body of the order. I know Art 59 petitions are styled State of Texas v. Contraband. The county clerk filed the show cause order as a criminal case. Is it "broken"? If it is, how do I fix it???

Historically, we always styled these cases much like a chapter 59 proceeding (e.g., The State of Texas v. Twenty-Nine Gambling Devices, et al.). After some discussion with one of our judges, I'm beginning to think the better tack to take in styling these cases would be something like In Re: Search Warrant Executed at [address]. Since your case is not an article 18.18(a) forfeiture, it's not a matter within the continuing jurisdiction of the criminal court. Ergo, it probably should not bear a criminal docket number. Instead, if your clerk assigns separate docket numbers to executed search warrants, your case probably should fall within that regimen. Given the claim's civil nature (regardless of the criminal docket number), I would think the proper procedural route to take would be to file a motion to sever the article 18.18(b) claim. If the criminal court judge signed the search warrant, he/she can hear the severance motion at the time of the forfeiture hearing and the procedural hiccup can be resolved as a one-stop shopping matter. If not, you may need to set a severance hearing in the criminal matter before your forfeiture hearing. The severance order, then, would command the clerk to assign the claim a new docket number.

With that being said, though, I would defer to David's broader knowledge of this area.

Scott, what are you saying about my knowledge of broads, and why is it relevant?!

Scott is right, it is a civil matter, which is the reason that the Hardy case was at the Supreme Court and not the CCA. We historically have styled the cases as State v. Property, but I agree that they are better styled In re: Property. Have your clerk reassign it as a civil case. And prepare to act in court almost exactly like it is a Ch. 59 case, from a procedural standpoint.