In January, 2011, the Deputy Sheriff of Tarrant County Sheriff’s Department stopped two individuals, Mr. Skelley and Mr. Coolidge, when they were leaving from a Game Room to investigate whether gambling was occurring in the game room.  Mr. Skelley told the Deputy that it is not required to pay cash in the game room and the players received tickets that could be redeemed for prizes or for replays on that day or at a subsequent visit.  Mr. Coolidge also said that the game room did not pay cash and the winning players received tickets that could be redeemed for prizes or for replays at any time.

The game room took at least one dollar to start a play.  The game devices did not allow players to win in excess of ten times the value of their bets.  A central machine dispensed a ticket when a player is out of ticket which had no cash value.  The players would occasionally ticket out in order to play on a different device.  The right of reply was implemented electronically.  Players surrendered their tickets, and the points represented by the tickets were applied electronically to whichever devices the players wanted to play.  The players had also the option to use their tickets to buy a gift and if there were no gifts that the player wanted, he could bring the ticket back on a different date to choose the gift.

The Deputy obtained a search warrant and executed the warrant and seized thirty-seven eight-liner machines from the game room. The State initiated the forfeiture proceedings in the justice court and the justice court ordered the forfeiture.  On appeal, the county court at law has confirmed the forfeiture along with the seizure of $1760 in currency.

On appeal to the Court of Appeals of Texas, Second District, Fort Worth, the owner of the Magic Games Game Room, Sammy Dean Barnes argued that the thirty-seven eight-lines machines forfeited by the Deputy were not gambling devices on the ground that the allowance of a non-immediate right of replay by means of redeeming a ticket of no cash value at a subsequent visit by electronically applying the points represented by the ticket to whichever machine the ticket-holder player desired to play does not prevent application of the “fuzzy animal” exclusion set forth in Texas Penal Code section 47.01(4)(B).

Once the State has established the ‘probable cause’ to initiate the forfeiture proceeding, it is the duty of the possessor of the forfeited machines to establish by a preponderance of evidence that the forfeited articles are not gambling devices.  Thus the ultimate burden is upon the possessor of the property.

The Court of Appeals accepted the challenge by the owner, Barnes, against the State’s forfeiture of the eight liner machines and reversed the forfeiture finding that the tickets of no real cash value that were optionally redeemable at a subsequent visit for points electronically input from a central location to an eight-liner of the ticket holder’s choice was a “novelty” and was thus within the rewards authorized by subsection (B) of Texas Penal Code section 47.01(4).  (see $1760.00 in United States Currency v. State, 372 S.W.3d 277 (2012)