forty-one-41-gambling-devices-sixteen-thousand-six-hundred-forty-eight ( 2004 )

NO. 07-03-0133-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 31, 2004

______________________________

FORTY-ONE (41) GAMBLING DEVICES, SIXTEEN THOUSAND

SIX HUNDRED FORTY-EIGHT DOLLARS ($16,648.00) IN

UNITED STATES CURRENCY AND EIGHT HUNDRED FORTY

DOLLARS ($840.00) IN GIFT CERTIFICATES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 89,868-B; HONORABLE JOHN B. BOARD, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON MOTION FOR REHEARING

On original submission, we reversed the judgment of the trial court granting appellee the State of Texas's motion for summary judgment and remanded the cause. The State has now filed a motion for rehearing. We overrule the motion, but withdraw our original opinion dated February 20, 2004, and, in lieu thereof, issue the following opinion.

Presenting four points of error, Marty Vanaman, Jr. challenges the trial court's rendition of a summary judgment forfeiting his property, including 41 eight-liner gambling devices, $16,648 in cash, and $840 in gift certificates pursuant to article 18.18 of the Texas Code of Criminal Procedure. ⁽¹⁾ Based upon the following rationale, we reverse and remand.

On November 5, 2001, Dan Howington, an undercover officer with the Panhandle Regional Narcotics Trafficking Task Force, entered Ninth Street Amusements and played a machine commonly known as an eight-liner. After compiling a number of credits on the machine, he advised a Ninth Street employee that he wanted to cash out. The employee tabulated the amount owed Howington by the machine and paid him that sum in cash. During his stay at Ninth Street, Howington noticed approximately 40 other machines, each of which appeared to operate in the same manner as the device on which he played. Howington also observed that Ninth Street appeared to engage in no other commercial venture but the operation of eight-liners.

Based upon his investigation, Howington, on December 12, 2001, obtained a search warrant commanding the seizure from Ninth Street of all gambling devices, gambling paraphernalia, and coupons or gift certificates, or any other proceeds derived from the operation of the gambling devices or paraphernalia. While executing the warrant, officers seized the property described above. On May 14, 2002, the State, electing not to proceed with a criminal prosecution, filed a petition seeking forfeiture of the eight-liners, cash, and gift certificates pursuant to article 18.18. ⁽²⁾ By its petition, the State asserted the District Court ⁽³⁾ had jurisdiction to hear the action and alleged it had satisfied all conditions precedent to filing or maintaining it. In response to the petition, Vanaman filed a general denial. ⁽⁴⁾

Following six months of discovery, the State filed a combination traditional and no-evidence motion for summary judgment, ⁽⁵⁾ relying upon article 18.18 as authority for relief. As grounds for the traditional motion, the State asserted the summary judgment evidence conclusively established that the seized eight-liners were gambling devices and/or gambling paraphernalia, and that the cash and gift certificates were gambling proceeds. In support of the no-evidence motion, the State alleged there was no evidence the eight-liners, cash, and gift certificates did not wholly consist of gambling devices and/or gambling paraphernalia, and gambling proceeds, respectively. The summary judgment evidence consisted of Howington's affidavit in support of the search warrant, the search warrant, and Vanaman's responses to the State's requests for admissions.

In his response to the State's motion for summary judgment, Vanaman claimed Howington's affidavit was not probative as summary judgment evidence because it was "purported to be that of an expert witness and a fact witness to all necessary elements of the State's case." Vanaman also suggested the eight-liners were legally operated pursuant to section 47.01(4)(B) of the Texas Penal Code (Vernon 2003), commonly known as the fuzzy animal exception. Additionally, he asserted a no-evidence summary judgment was inappropriate because the State failed to establish it had complied with the procedural requirements of article 18.18.

Concluding there was no genuine issue of material fact, in January 2003, the trial court rendered summary judgment in favor of the State on both traditional and no-evidence grounds. Specifically, the court concluded as a matter of law that the seized property constituted gambling devices and gambling proceeds and was, thus, subject to forfeiture under article 18.18. Additionally, the court found there to be no evidence to support any claim under section (f) of article 18.18 that the property, cash, and gift certificates seized from Ninth Street were not gambling devices, paraphernalia, or proceeds.

By four points of error, Vanaman claims: (1) his due process rights were violated by the trial court's failure to abide by the mandatory terms of article 18.18; (2) the trial court lacked jurisdiction to hear the State's motion for summary judgment because of its failure to have a show cause hearing as required by article 18.18; (3) the trial court improperly granted the motion for summary judgment when disputed fact issues remained; and (4) "the search warrant used to seized [sic] Appellant's [Vanaman's] property was defective." We will consider Vanaman's first and third points contemporaneously.

Standard of Review-Traditional Motion

Where, as here, the trial court's order explicitly specifies the ground relied upon for the summary judgment ruling, the ruling can only be affirmed if the theory is meritorious; otherwise the case must be remanded. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993). For a movant to prevail in the context of a traditional summary judgment, he must conclusively establish: (1) the absence of any genuine question of material fact; and (2) he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). A movant must either prove all essential elements of his claim, or negate at least one essential element of the nonmovant's cause of action. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) and Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When determining whether summary judgment was proper, we review the evidence in the light most favorable to the nonmovant taking all evidence in favor of the nonmovant as true and resolving all doubts as to the existence of a genuine issue of material fact in its favor. Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude it . City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). Because our analysis of Vanaman's first and third points controls our disposition of the case, we need not address the standard of review for a no-evidence motion for summary judgment.

By points one and three, Vanaman argues he was not afforded the notice and opportunity to be heard mandated by article 18.18, and a genuine issue of material fact existed precluding summary judgment. We agree. Contrary to the State's assertion in its motion for rehearing, Vanaman's third point is sufficient to allow argument as to all possible grounds upon which summary judgment should have been denied. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Moreover, we must consider rules on briefing liberally. Tex. R. App. P. 38.9; see also State v. Garland, 963 S.W.2d 95, 101 (Tex App.-Austin 1998, pet. denied) (quoting Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995)).

At the outset, we recognize that statutory proceedings seeking forfeiture of property are civil in nature; therefore, the Rules of Civil Procedure apply. See F & H Investments, Inc. v. State, 55 S.W.3d 663, 668 (Tex.App.-Waco 2001, no pet.). Because the law abhors a forfeiture, statutes authorizing forfeiture are strictly construed. See State v. Lot 10, Pine Haven Estates, 900 S.W.2d 400, 402 (Tex.App.-Texarkana 1995, no writ) (affirming trial court's denial of State's motion for summary judgment in suit seeking forfeiture of property). Notice and hearing are the process used to protect a property interest. Elm Creek Owners v. H.O.K. Investments, 12 S.W.3d 494, 498 (Tex.App.-San Antonio 1999, no pet.). ⁽⁶⁾

In a civil forfeiture proceeding under article 18.18, once property has been seized pursuant to a search warrant, the magistrate to whom the warrant is returned must: (1) provide written notification of the seizure and imminent forfeiture to the person found in possession of the property; (2) include a detailed description of the seized property in the notice; and (3) send the required notice via certified mail, return receipt requested. See art. 18.18 (b), (c), & (d). Additionally, the statute affords any person interested in the seized property the opportunity to appear before the magistrate for a show cause hearing on the 20^th day following the date the notice was mailed or posted. See art. 18.18 (e) & (f). In brief, a forfeiture proceeding under this statute begins when the State presents an affidavit to a magistrate and ends after a show cause hearing in which the magistrate determines whether the seized property should be destroyed or forfeited. Hardy v. State, 102 S.W.3d 123, 127 (Tex. 2003).

In its motion for summary judgment, the State expressly grounded its entitlement to relief upon article 18.18 as authority for the forfeiture. ⁽⁷⁾ Then, because the State had the burden to prove all of the essential elements of its claim, it was required to produce summary judgment evidence showing compliance with the mandates of that article. The record does not, however, indicate whether the magistrate provided the notice required by article 18.18. Neither does the record reveal whether an article 18.18 show cause hearing was conducted following seizure of the property from Ninth Street. In short, the State failed to present summary judgment evidence that all of the requirements of article 18.18 were satisfied; thus, it did not establish its right to summary judgment. ⁽⁸⁾ As a result, the trial court erred in granting the State's motion. ⁽⁹⁾ Vanaman's first and third points are sustained. Our disposition of these points precludes our consideration of his remaining points.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

Don H. Reavis

Justice

1. All references to articles are to the Texas Code of Criminal Procedure unless otherwise designated. (Vernon Supp. 2004).

2. In its petition, the State requested citation be issued to Vanaman and Cynthia Lloyd, who were alleged to be the persons found in possession of the seized property. Lloyd, however, is not a party to this appeal.

3. The judge of the 181^st District Court was the magistrate who authorized the search warrant.

4. Vanaman did not designate his answer to be included in the clerk's record; however, the State concedes an answer was filed.

5. See Tex. R. Civ. P. 166a(c) & (i).

6. See also Tex. Const. art. I, § 19 (No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by due course of the law of the land). (Emphasis added). Additionally, it appears that in a proceeding under article 18.18, a party may request a trial by jury. See State v. One Super Cherry Master Video, 55 S.W.3d 51, 52 (Tex.App.-Austin 2001) rev'd on other grounds, 102 S.W.3d 132 (Tex. 2003).

7. The unique posture of this case resulted when the State, instead of proceeding with a trial on the merits through the show cause hearing authorized by article 18.18, elected to proceed by a motion for summary judgment. While the Rules of Civil Procedure dictate the mechanism for utilizing summary judgment, they provide no authority for the forfeiture of property. The State does not reference, nor has our independent review revealed, any legal authority providing guidelines for the reconciliation of the forfeiture procedures authorized by the Code of Criminal Procedure with the Rules of Civil Procedure authorizing summary judgment.

8. In his response to the State's motion for summary judgment, Vanaman argued, among other things, that (1) the State failed to demonstrate whether the requisite show cause hearing had been held; or (2) he had been provided with an opportunity to be heard. However, because the State failed to meet its burden of proof, the burden did not shift to Vanaman to respond to the motion for summary judgment or present the trial court any issues that would preclude it. Clear Creek Basin, 589 S.W.2d at 678.

9. The issues considered here were not presented in Twenty-Nine (29) Gambling Devices v. State, 110 S.W.2d 146 (Tex.App.-Amarillo 2003, no pet. h.).

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            NO. 07-10-00214-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 10, 2010 

In the Interest of E.E.G. and J.R.G.

___________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF RANDALL COUNTY;

NO. 7062-L1; HONORABLE JAMES W. ANDERSON, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellants Sarah Meagan Garrett and Justin Sye Garrett filed notices of appeal on May 26, 2010.  However, appellants did not pay the $175 filing fee required from appellants under Texas Rule of Appellate Procedure 5.  Nor did they file an affidavit of indigence per Texas Rule of Appellate Procedure 20.1.  By letter from this Court dated May 26, 2010, we informed appellants that Athe filing fees in the amount of $175.00 each have not been paid . . . .  Failure to pay the filing fees within ten (10) days from the date of this notice may result in a dismissal.@  Tex. R. App. P. 42.3(c); see Holt v. F. F. Enterprises, 990 S.W.2d 756 (Tex. App.–Amarillo 1998, pet. ref=d).  The deadline lapsed, and the fees were not received.

Because appellants have failed to pay the requisite filing fees as directed by the court, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(c).

Per Curiam