holding that eight-liners in question did “not fall within the exclusion in section 47.01(4)(B) because the distributed tickets were not redeemable exclusively for noncash merchandise prizes, toys, or novelties”
How later courts described this case
- holding that eight-liners in question did “not fall within the exclusion in section 47.01(4)(B) because the distributed tickets were not redeemable exclusively for noncash merchandise prizes, toys, or novelties”
- explaining that "[u]ndefined terms in a statute are typically given their ordinary meaning" and that, "when an undefined term has multiple common meanings, the definition most consistent within the context of the statute's scheme applies"
- explaining that even if an undefined term has multiple common meanings, that does not necessarily make the statute ambiguous and that instead an appellate court will apply the definition most consistent with the context of the statutory scheme
- holding that eight-liners that “awarded tickets that could be redeemed for non-immediate rights of replay” did not fall within the exclusion
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF TEXAS
444444444444
NO . 12-0718
444444444444
STATE OF TEXAS, PETITIONER,
v.
$1,760.00 IN UNITED STATES CURRENCY, 37 “8” LINER MACHINES, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
PER CURIAM
This is a civil forfeiture case involving the seizure of thirty-seven gaming machines,
commonly known as “eight-liners,” by the State of Texas after the Tarrant County Sheriff’s
Department obtained and executed a warrant to search the Magic Games Game Room owned by
Sammy Dean Barnes. The Texas Penal Code excludes from the definition of “gambling device”
certain contrivances that reward players “exclusively with noncash merchandise prizes, toys, or
novelties, or a representation of value redeemable for those items.” TEX. PENAL CODE § 47.01(4)(B).
Barnes challenges the seizure, arguing that his eight-liners fell within the statutory exclusion. The
State contends that Barnes’s eight-liners cannot fall within that exclusion because the eight-liners
awarded tickets that could be redeemed for non-immediate rights of replay, which the State argues
is an intangible reward precluding application of the statutory exclusion. We agree with the State.
Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s judgment.
The Tarrant County Sheriff’s Department obtained a search warrant for Magic Games Game
Room after an investigation yielded information that the eight-liners were awarding players tickets
that they could redeem for future play on another day—referred to as non-immediate rights of replay.
Upon execution of the search warrant, the Sheriff’s Department seized thirty-seven eight-liners and
$1,760 in cash from an automated teller machine (ATM) on the premises.1
Following the seizure, the State initiated forfeiture proceedings under article 18.18 of the
Texas Code of Criminal Procedure in the justice court, which ultimately ordered forfeiture of the
eight-liners. See TEX . CODE CRIM . PROC. art. 18.18. Barnes appealed to the county court at law for
a trial de novo. At trial, Barnes testified that the eight-liners accepted cash, which the machine
converted into points that were used for play. When a player redeemed points from an eight-liner
upon completion of play, the eight-liner dispensed a ticket for every five hundred points won.
Players could use the tickets to either (1) redeem store merchandise that did not exceed a wholesale
value of $5, or (2) receive credits to replay another machine, which were implemented electronically
by an attendant from a central location without having to convert the tickets back into cash. Barnes’s
establishment allowed players to return at a later date to redeem the tickets for replays on the eight-
liners. It is undisputed that the tickets had no cash value and were never exchanged for cash for
replay.
1
Because Barnes does not claim ownership of the cash seized from the ATM, it is not at issue in this appeal.
2
After a trial de novo, the county court ordered the eight-liners forfeited to the State. The
court of appeals reversed, holding that the eight-liners fell within the exclusion to the definition of
“gambling device” in section 47.01(4)(B) of the Penal Code because non-immediate rights of replay
could be considered “novelties” under the exclusion, which the court of appeals defined as a “new
event.” 372 S.W.3d 277, 285–86. The State petitioned this Court for review, arguing that the court
of appeals erred by construing the term “novelties” to mean a “new event” rather than small, tangible
goods similar in form to “noncash merchandise prizes” and “toys,” which are the two terms that
precede “novelties” in section 47.01(4)(B). See TEX . PENAL CODE § 47.01(4)(B). The State avers
that, under its proposed construction of “novelties,” a reward of a non-immediate right of replay
prevents the statutory exclusion from applying to Barnes’s eight-liners. We agree.
The issue is one of statutory construction, which we review de novo. Tex. Lottery Comm’n
v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Our primary objective when
interpreting a statute is to give effect to the Legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d
407, 411 (Tex. 2011). Legislative intent is best expressed by the plain meaning of the text unless
the plain meaning leads to absurd results or a different meaning is supplied by legislative definition
or is apparent from the context. Tex. Lottery Comm’n, 325 S.W.3d at 635.
The Penal Code defines “gambling device” as:
any electronic, electromechanical, or mechanical contrivance not excluded under
Paragraph (B) that for a consideration affords the player an opportunity to obtain
anything of value, the award of which is determined solely or partially by chance,
even though accompanied by some skill, whether or not the prize is automatically
paid by the contrivance.
3
TEX . PENAL CODE § 47.01(4). The Penal Code broadly defines “things of value” as “any benefit”
but specifically excludes “an unrecorded and immediate right of replay not exchangeable for value.”
Id. § 47.01(9) (emphasis added). The parties do not dispute that the eight-liners fall within the Penal
Code’s general definition of “gambling device.” The eight-liners awarded players tickets that were
redeemable for either noncash store merchandise or non-immediate rights of replay—both clearly
benefits and thus “things of value” under the statute. See id. Instead, the dispositive issue in this
case requires construction of the exclusion under section 47.01(4)(B), which provides that the term
“gambling device” does not include:
any electronic, electromechanical, or mechanical contrivance designed, made, and
adapted solely for bona fide amusement purposes if the contrivance rewards the
player exclusively with noncash merchandise prizes, toys, or novelties, or a
representation of value redeemable for those items, that have a wholesale value
available from a single play of the game or device of not more than 10 times the
amount charged to play the game or device once or $5, whichever is less.
Id. § 47.01(4)(B).
As we noted in Hardy v. State, 102 S.W.3d 123 (Tex. 2003), the exclusion in section
47.01(4)(B) applies only if the eight-liners reward players “exclusively with noncash merchandise
prizes, toys, or novelties, or a representation of value redeemable for those items.” Id. at 131
(quoting TEX . PENAL CODE § 47.01(4)(B)). The pertinent facts surrounding the nature of the reward
are undisputed in this case. The eight-liners issued tickets (i.e., “representations of value”) that could
be redeemed for either store merchandise or non-immediate rights of replay. The critical inquiry is
whether non-immediate rights of replay qualify as “noncash merchandise prizes, toys, or novelties.”
TEX . PENAL CODE § 47.01(4)(B).
4
In Hardy, we held that eight-liners that awarded players tickets that were exchangeable for
either gift certificates redeemable at local retailers or cash to play other machines did not fall within
the exclusion in section 47.01(4)(B). Hardy, 102 S.W.3d at 131–33. We concluded that gift
certificates redeemable at local retailers did not qualify as a noncash merchandise prize, toy, or
novelty item because the gift certificates operated the same as legal tender. Id. at 132. For similar
reasons, we held that eight-liners that dispense tickets redeemable for cash, even when the cash can
be used only for additional play, do not meet the exclusion. Id. We reasoned that an award of cash,
regardless of its subsequent use, precludes application of the statutory exclusion because the tickets
were no longer redeemable exclusively for noncash merchandise prizes, toys, or novelties. Id. We
left open the possibility, however, that additional play could be accomplished by some other method
that did not violate section 47.01(4). Id.
In this case, we recognize that awards of additional play were accomplished electronically
rather than through a cash conversion like in Hardy. Nevertheless, we apply the same analysis under
section 47.01(4)(B): Is a non-immediate right of replay a noncash merchandise prize, toy, or novelty
item? While “novelty” can be defined as a “new event,” as the court of appeals noted, 372 S.W.3d
at 285, we conclude that the context of section 47.01(4) indicates that the Legislature intended a
meaning of novelty consistent with the other terms of the statute. Thus, while the method of
awarding additional play in this case differs from that in Hardy, the result remains the same.
The Penal Code does not define “novelties.” Undefined terms in a statute are typically given
their ordinary meaning. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
However, we will not give an undefined term a meaning that is out of harmony or inconsistent with
5
other terms in the statute. In re Hall, 286 S.W.3d 925, 929 (Tex. 2009); see also Fiess v. State Farm
Lloyds, 202 S.W.3d 744, 750–51 n.29 (Tex. 2006) (applying the traditional canon of construction
noscitur a sociis—or “it is known by its associates”—to construe the last term within a series). “[I]f
a different, more limited, or precise definition is apparent from the term’s use in the context of the
statute, we apply that meaning.” Hall, 286 S.W.3d at 929. Therefore, when an undefined term has
multiple common meanings, the definition most consistent within the context of the statute’s scheme
applies. See id. (applying the dictionary’s second definition of “detention” as the term is used in the
Juvenile Justice Code); see also Combs, 340 S.W.3d at 441 (“It is a fundamental principle of
statutory construction and indeed of language itself that words’ meanings cannot be determined in
isolation but must be drawn from the context in which they are used.”).
In addition to the definition of “novelty” as a “new event,” many dictionaries define
“novelty” as a small manufactured article, object, or toy. See, e.g., AMERICAN HERITAGE COLLEGE
DICTIONARY 934 (3d. ed. 2000) (defining “novelty” as “a small mass-produced article, such as a toy
or trinket.”). For instance, the third definition in Webster’s Third New International Dictionary—the
same dictionary the court of appeals relied on—defines “novelty” as “a small manufactured article
intended mainly for decoration or adornment and marked by an unusual or novel design.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1546 (2002). The context of section 47.01(4)
indicates that the Legislature intended “novelty” to mean other types of tangible articles similar to
“noncash merchandise prizes” and “toys”—not a “new event” as the court of appeals defined the
term. Under this definition, we hold that non-immediate rights of replay are not novelties.
6
Therefore, we hold that Barnes’s eight-liners do not fall within the exclusion in section
47.01(4)(B) because the distributed tickets were not redeemable exclusively for noncash merchandise
prizes, toys, or novelties. See TEX . PENAL CODE § 47.01(4)(B). The court of appeals erred when it
held otherwise. Accordingly, we grant the State’s petition for review, and without hearing oral
argument, we reverse the judgment of the court of appeals and reinstate the judgment of the county
court at law. See TEX . R. APP . P. 59.1.
OPINION DELIVERED: June 28, 2013
7