Fifty Six (56) Gambling Devices, Eight Thousand Three Hundred Thirty-Eight Dollars ($8,313.00) in United States Currency and Four Hundred Dollars ($400.00) in Gift Certificates v. State

Opinion

NO. 07-03-0132-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 31, 2004

______________________________

FIFTY-SIX (56) GAMBLING DEVICES, EIGHT THOUSAND

THREE HUNDRED THIRTEEN DOLLARS ($8313.00) IN UNITED

STATES CURRENCY AND FOUR HUNDRED DOLLARS

($400.00) IN GIFT CERTIFICATES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NO. 89,860-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 and judgment dated February 20, 2004, and, in lieu thereof, issue the following opinion.

Presenting four points of error, Craig Brucker challenges the trial court's rendition of a summary judgment forfeiting his property, including 56 eight-liner gambling devices, $8,313 in cash, and $400 in gift certificates pursuant to article 18.18 of the Texas Code of Criminal Procedure. ⁽¹⁾ By this appeal, Brucker does not challenge that part of the judgment denying his counterclaim for damages. Based upon the following rationale, we reverse and remand in part and affirm in part.

On November 5, 2001, Dan Howington, an undercover officer with the Panhandle Regional Narcotics Trafficking Task Force, entered Prize Palace Amusements and played a machine commonly known as an eight-liner. After compiling a number of credits on the machine, he advised a Prize Palace 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 Prize Palace, 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 Prize Palace 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 Prize Palace 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 10, 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, Brucker 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 Brucker's responses to the State's requests for admissions.

In his response to the State's motion for summary judgment, Brucker claimed Howington's affidavit was not probative as summary judgment evidence because it was "vague, overbroad, [and] conclusionary." ⁽⁶⁾ Brucker also suggested: (1) 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; and (2) his attached affidavit to that effect raised a genuine issue of material fact sufficient to preclude a traditional summary judgment. 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, currency, and gift certificates seized from Prize Palace were not gambling devices, paraphernalia, or proceeds.

By four points of error, Brucker 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 [Brucker's] property was defective." We will consider Brucker'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 Brucker'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, Brucker 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, Brucker'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.). ⁽⁷⁾

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. ⁽⁸⁾ 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 Prize Palace. 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. ⁽⁹⁾ As a result, the trial court erred in granting the State's motion. ⁽¹⁰⁾ Brucker's first and third points are sustained. Our disposition of these points precludes our consideration of his remaining points.

In addition to a petition for forfeiture of the seized property, the State's motion for summary judgment included a request, based upon sovereign immunity, that the court deny Brucker's counterclaim for damages. Alternatively, the State requested that partial relief be granted, if appropriate. See Tex. R. Civ. P. 166a (e). Therefore, because Brucker does not challenge the portion of the summary judgment dismissing his counterclaim for want of jurisdiction, that part of the judgment is affirmed. See Tex. R. App. P. 43.2(c) (court of appeals may reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered). Otherwise, the judgment of the trial court is reversed, and the case 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 Olivia Rodriguez and Billy Stone, who were, respectively, alleged to be the person found in possession of the seized property and the operator of the business where the seized property was located. Neither of those individuals is a party to this appeal.

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

4. Brucker 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. Although it appears from the record he was not present when the search warrant was executed, Brucker conceded in his responses to the State's requests for admissions that he was the owner of all of the eight-liners seized from Prize Palace.

7. 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).

8. 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.

9. In his response to the State's motion for summary judgment, Brucker 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 Brucker 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.

10. 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.).

pan>Also, in Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 847 (Tex.App.--San Antonio 1997, writ denied), the court held that due process requires that collateral estoppel operate only against parties who have had a day in court, as a party or as a privy. Here, however, the brief of Wind Mountain does not make reference to the record which supports its position. Therefore, this court is not required to search the record for evidence supporting its position. Brandon v. American Sterilizer Co., 880 S.W.2d 488, 493 (Tex.App.--Austin 1994, no writ); see also Tex. R. App. P. 38(h). Moreover, even though the practice regarding these defenses has modified strict rules, Wind Mountain has failed to demonstrate that the action by the City to seek a declaration of the priority of its lien arising per the December 6, 2002 judgment against Centex and the May 22, 2003 abstract of judgment was affected by the March 16, 1994 order of the bankruptcy judge.

Point Three

           By point of error three, Wind Mountain contends the trial court erred in finding that the Metropolitan Life note and deed of trust were void because the bankruptcy court’s judgment was not recorded or domesticated in accordance with state law. We disagree.

            First, although the trial court declared the deed of trust was void, from the face of the judgment, we note that the trial court did not hold or declare the promissory note was void.

           Wind Mountain concludes its argument by stating that the order of the bankruptcy court did not have to be domesticated or recorded under state law to bind the parties and their successors-in-interest and that the trial court was barred on the issue. However, the policy of the Texas registration law seeks to require that the public records disclose all matters affecting land titles. See Turrentine v. Lasane, 389 S.W.2d 336, 337 (Tex.Civ.App. –Waco 1965, no writ )(and authorities cited therein.) For this and the reasons discussed above, point of error three is overruled.

Point Four

           By point of error four, Wind Mountain contends the trial court erred in failing to find that Centex’s lis pendens was actual notice of Centex’s bankruptcy. We disagree.

           First, we note that “notice” as material here, may be constructive or actual. Actual notice rests on personal information or knowledge, but constructive notice rests on notice the law imputes to a person not having personal information or knowledge. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). In effect, this point presents a contention that the evidence conclusively established that the City had actual notice of the bankruptcy by virtue of the lis pendens filing. Although filing of a lis pendens may constitute constructive notice, it does not constitute actual notice. See Gene Hill Equip. Co. v. Merryman, 771 S.W.2d 207, 209 (Tex.App.--Austin 1989, no writ). Wind Mountain’s fourth point is overruled.

           We conclude our analysis by noting that the trial court concludes its judgment by declaring that the abstract of judgment lien of the City is superior to the claims of Wind Mountain under the deed of trust recorded in Volume 1497, Page 6 of the Deed of Trust Records in Bell County. However, Wind Mountain does not present a point of error challenging this declaration. We cannot reverse the judgment of a trial court in the absence of a properly assigned error, see American General Fire and Casualty Company v. Weinberg, 639 S.W.2d 688, 689 (Tex 1982) and Orchid Software, Inc. v. Prentice-Hall, Inc., 804 S.W.2d 208, 211 (Tex.App.–Austin 1991, writ denied).

           Accordingly, the trial court’s judgment is affirmed.

                                                                                  Don H. Reavis

                                                                                  Senior Justice