                                NUMBER 13-17-00653-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


THE CAMERON COUNTY DISTRICT
ATTORNEY IN HIS OFFICIAL
CAPACITY REPRESENTING
THE STATE OF TEXAS,                                                                         Appellant,

                                                  v.

JLM GAMES AND GGL VENDOR
LEASING LLC,                                                                                Appellees.


                        On appeal from the 357th District Court
                             of Cameron County, Texas.


                  DISSENTING MEMORANDUM OPINION
                 Before Justices Benavides, Perkes, and Wittig1
               Dissenting Memorandum Opinion by Justice Wittig



        1 Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief Justice

of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003.
       For the reasons set for below, I respectfully dissent.

                                   I.     GAMBLING DEVICES

       Pursuant to chapter 47 of the Texas Penal Code, it is illegal to play and bet at a

game played on a gambling device for money or other thing of value. TEX. PENAL CODE

ANN. § 47.02(a)(3). A “gambling device” is defined as

       any electronic, electromechanical, or mechanical contrivance . . . 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 price is automatically paid
       by the contrivance.

Id. § 47.01(4) (chapter 41 definitions). However, a “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).

                             II.        STANDING AND RIPENESS

A.     Applicable Law

       Standing is a component of subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 444–46 (Tex. 1993). The standing issue relates to the

question of who may bring an action. Patterson v. Planned Parenthood of Hous. & S.E.

Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). The general test for standing in Texas is

stated to require that there be a real controversy between the parties that will be

determined by the judicial declaration sought. Tex. Ass’n of Bus., 852 S.W.2d at 446.

Standing requires a personal stake in the controversy. In Interest of B.I.V., 923 S.W.2d



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573, 574 (Tex. 1996); Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). The appellate

court reviews the entire record to determine if any evidence supports standing, and it

construes the petition in favor of the plaintiffs. Tex. Ass’n of Bus., 852 S.W.2d at 445–

46.

       Ripeness is an element of justiciability, rooted in the prohibition of advisory

opinions by the judiciary. Patterson, 971 S.W.2d 439, 442 (Tex. 1998); see Perry v. Del

Rio, 66 S.W.3d 239, 249–52 (Tex. 2001). The ripeness issue “asks whether the facts

have developed sufficiently so that an injury has occurred or is likely to occur, rather than

being contingent or remote.” Patterson, 971 S.W.2d at 442. It seeks to avoid premature

adjudication, focusing on whether the case involves “uncertain or contingent future events

that may not occur as anticipated, or indeed may not occur at all.” Id.

B.     Analysis

       In their petition, appellees attached the affidavit of Jimmy Martin, owner of GGL

Vendor Leasing, LLC. In his affidavit, Martin asserted that his area manager informed

him that even if appellants operated machines “in full and legal compliance with all

applicable laws in Texas,” the State would nonetheless “shut down the operation” of such

machines. 2

       Therefore, the existence or nature of appellee’s claims is not dependent on

uncertain future events. Under its pleadings and the evidence before us, I would conclude

that injury is likely to occur rather than being contingent or remote, and therefore,

appellees’ claims are ripe for adjudication. See Patterson, 971 S.W.2d at 442; see also

Ryder Integrated Logistics, 453 S.W.3d at 927.


       2   The State did not object to this evidence during the plea to the jurisdiction proceedings.


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        Moreover, construing appellees’ pleadings liberally, I would conclude that

appellees have a personal stake in the controversy. In Interest of B.I.V., 923 S.W.2d at

574; Hunt, 664 S.W.2d at 324. Appellees allege that they have purchased specialized

machines to comply with chapter 47 and that the State is preventing them from using

those lawful machines by its threat to confiscate them without determining whether the

machines are illegal eight-liners.            See Stop the Ordinances Please v. City of New

Braunfels, 306 S.W.3d 919, 928 (Tex. App.—Austin 2010, no pet.) (explaining that by

alleging an ordinance restricted the use of their property, the plaintiffs “demonstrated the

required actual, concrete, and particularized infringement of their legally protected

interests necessary for standing”). Thus, a real controversy exists between the parties

that will be determined by the judicial declaration sought. Tex. Ass’n of Bus., 852 S.W.2d

at 446. I would overrule the State’s first and second issues.

                 III.     JURISDICTION OF CIVIL COURT OVER CRIMINAL STATUTE

        Next, by its third issue, the State contends that the trial court lacked jurisdiction

over appellee’s claims because appellees are seeking civil review of a criminal matter.

Specifically, the State argues that appellees failed to invoke the civil court’s jurisdiction

over this criminal matter because appellees did not attack the constitutionality of chapter

47 and establish that they suffered an irreparable injury to vested property rights. 3 See

State v. Morales, 869 S.W.2d 941, 942 (Tex. 1994) (establishing when a civil court has

jurisdiction over the constitutionality of a criminal statute); see also Passel v. Fort Worth

Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex. 1969) (“It is well settled that courts of equity



         3 As noted above the trial court in this case has both criminal and civil jurisdiction. This matter was

not briefed by the parties, and I therefore do not address the significance, if any.


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will not interfere with the ordinary enforcement of a criminal statute unless the statute is

unconstitutional, and its enforcement will result in irreparable injury to vested property

rights.”). Appellees respond that they are requesting declaratory and injunctive relief on

the basis that the statute “as applied” to them is unconstitutional and that the State is

violating their vested property rights as protected by Article I sections 9, 17, and 19 of the

Texas Bill of Rights. See id.

A.     Applicable Law

       Texas has a bifurcated system of civil and criminal jurisdiction, and generally, a

civil court cannot enjoin the enforcement of penal statutes or make declarations of “rights,

status or other legal relationships arising under a penal statute.” Morales, 869 S.W.2d at

948 (internal quotations omitted). It has been long recognized in Texas that ordinarily

criminal courts determine the meaning and validity of a penal statute or ordinance. Id. at

945.   However, a civil court of equity has jurisdiction to declare a penal statute

unconstitutional and enjoin its enforcement when

       (1) there is evidence that the statute at issue is unconstitutionally applied by
       a rule, policy, or other noncriminal means subject to a civil court’s equity
       powers and irreparable injury to property or personal rights is threatened,
       or (2) the enforcement of an unconstitutional statute threatens irreparable
       injury to property rights.

Id. at 942.

       Thus, Morales, establishes a civil court’s equitable power to enjoin the

enforcement of a statute that is unconstitutional as applied versus a facially

unconstitutional statute. See id.; Combs v. STP Nuclear Operating Co., 239 S.W.3d 264,

272 n.8 (Tex. App.—Austin 2007, pet. denied) (citing Michael C. Dorf, Facial Challenges

to State and Federal Statutes, 46 Stan. L.Rev. 235, 236 (1994)); see also City of Dallas



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v. Nickles & Dimes, Inc., No. 05-95-01507-CV, 1997 WL 284613, at *2 (Tex. App.—Dallas

May 30, 1997, no writ) (mem. op.) (recognizing that Morales establishes and allows an

as-applied constitutional challenge in a civil court of equity).       When an as-applied

challenge is made, the party “need only show that the statute is unconstitutional because

of the manner in which it was applied in a particular case.” Combs, 239 S.W.3d at 272

n.8 (citing Tex. Workers’ Comp. Com’n v. Garcia, 893 S.W.2d 504, 518 n. 16 (Tex. 1995).

As-applied challenges must be brought on a case-by-case basis because they are fact

specific. Id. “[W]hen a court finds a statute unconstitutional as applied to a particular set

of facts, the statute may be constitutionally enforced under different facts.” Id. A party

challenging the statute facially “bears a heavy burden of showing that the statute is

unconstitutional in all of its applications.” Id. (citing States v. Salerno, 481 U.S. 739, 745

(1987); Tex. Workers’ Comp. Comm’n, 893 S.W.2d at 518 n.16).

B.     Discussion

       The Morales court explained that “courts of equity will not interfere with the ordinary

enforcement of a criminal statute unless the statute is unconstitutional and its

enforcement will result in irreparable harm.” Morales, 869 S.W.2d at 945. The Morales

court noted that in Passel, “the plaintiffs did not seek a naked declaration of [a] penal

statute’s unconstitutionality,” and instead “sought a declaration of the invalidity of the

statute and an injunction against enforcement. . .” of a rule and there was no threat or

even contemplation of prosecution. Id.

              In Passel, the minor plaintiffs sought a declaration that a penal
       statute unconstitutionally denied rights of free association, and an injunction
       to prevent school officials from denying them admission to public schools
       because of membership in certain student clubs. Passel, 440 S.W.2d at 62.
       No injunctive relief was sought against the statute itself, Article 301d,9
       which prohibited certain clubs in all public schools of the state below college

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       level. Passel, 440 S.W.2d at 64. Rather, injunctive relief was sought solely
       to “prevent administrative enforcement of an administrative regulation
       adopted for the purpose of implementing the statute.” Id.

Morales, 869 S.W.2d at 945–46. In Passel, the Texas Supreme Court concluded that

under those circumstances, the trial court had jurisdiction. Id. at 946.

              The Passel court determined that if true the plaintiffs’ contention
       constituted “an unwarranted interference with the constitutionally protected
       right of free and private association.” Passel, 440 S.W.2d 61, 64 (Tex.
       1969). The court explained that “criminal courts cannot determine the
       meaning and validity of the statute unless a prosecution is instituted,” and
       therefore, the plaintiffs had “no way to attack the rule except by
       administrative appeal or a civil action.” Id. The court stated that “civil courts
       are not powerless to grant relief under these circumstances,” and held that
       the trial court had “jurisdiction to construe and determine the
       constitutionality of the criminal statute in this proceeding.” Id.

Morales, 869 S.W.2d at 946.

       Here, like the plaintiffs in Passel, appellees did not request to enjoin prosecution

of the statute itself or seek a declaration that their machines are not illegal, nor do they

seek a naked declaration as to the constitutionality of a criminal statute.           Instead,

appellees seek injunctive and declaratory relief to prevent the State’s unconstitutional

“enforcement of the rules, regulations, policies and procedures” used to confiscate

machines appellees claim are not prohibited by chapter 47—machines that the State

threatened to confiscate even if they are “in full and legal compliance with all applicable

laws in Texas.” See TEX. PENAL CODE ANN. § 47.01(4) (defining what is and is not a

gambling device); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.

App.—Corpus Christi–Edinburg 2001, no pet.) (explaining that the appellate court must

take the factual allegations in the plaintiff’s pleadings as true).

       Construed liberally, appellees’ pleadings affirmatively attack the constitutionality of

the State’s application of chapter 47 under the Texas Constitution as applied to them.

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See City of Elsa, 226 S.W.3d at 392 (“[A] plaintiff whose constitutional rights have been

violated may sue the state for equitable relief.”); see also Passel, 440 S.W.2d at 64

(explaining that although prosecution was neither threatened or even contemplated, the

plaintiff’s immediate complaint was within the courts equity jurisdiction and remediable by

the court’s equity jurisdiction); Combs, 239 S.W.3d at 272 n.8. Appellees are not seeking

to invalidate chapter 47 on its face or seek a ruling that chapter 47 is unconstitutional in

all its applications. See Combs, 239 S.W.3d at 272 n.8.

       Moreover, in Morales, which forms the basis of the State’s argument here, the

plaintiffs sought to enjoin criminal prosecution under that statute and a declaration of their

“rights, status, or other legal relationship” under the Texas sodomy laws and that the

sodomy law was unconstitutional. 869 S.W.2d at 943. The Morales court’s entire analysis

and holding “was thus carefully limited to whether a court exercising civil jurisdiction could

declare a criminal statute unconstitutional or enjoin its prosecution.” See Tex. Alcoholic

Beverage Com’n v. Am. Legion Knebel Post 82, No. 03-11-00703-CV, 2014 WL 2094195,

at *6 (Tex. App.—Austin May 16, 2014, no pet.) (mem. op.) (citing Morales, 869 S.W.2d

at 943).

       I question whether Morales even governs. See City of Argyle v. Pierce, 258

S.W.3d 674, 681 (Tex. App.—Fort Worth 2008, pet. dism’d) (concluding that Morales did

not apply because the appellees were not challenging the constitutionality or the

enforceability of an ordinance and instead were seeking a declaration that their conduct

did not constitute a violation of the ordinance). For example, in Morales, the plaintiffs

acknowledged that their behavior was illegal under the sodomy statute.             And here,

accepting appellees’ allegations as true, appellees’ machines are not used in a manner



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that is prohibited by chapter 47and are permitted under § 47.01(4)(B). See TEX. PENAL

CODE ANN. § 47.01(4) (defining what is and is not a gambling device); Mission Consol.

Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.—Corpus Christi–Edinburg

2001, no pet.) (explaining that an appellate court must take the factual allegations in the

plaintiff’s pleadings as true).   In addition, the State is threatening to confiscate the

machines even if appellees do not use the machines in a manner that constitutes illegal

gambling pursuant to chapter 47. Again, accepting the truth of appellees’ pleading, the

machines themselves are not prohibited by the statute; instead, it is the manner of the

machines’ use that is prohibited, and appellees’ machines are not being used as gambling

devices as defined in chapter 47. Mission Consol. Indep. Sch. Dist., 39 S.W.3d at 676.

Thus, appellees are seeking a declaration that the State is violating its constitutional rights

by threatening to confiscate property that they are not prohibited from using or owning.

See City of Argyle, 258 S.W.3d at 681. Nonetheless, under the precedent as set out in

Passel, I would conclude that appellees have pleaded facts establishing that the statute

is unconstitutional as applied to them by the State’s rule, policy, or other noncriminal

means, which is subject to a civil court’s equity powers. See Passel, 440 S.W.2d at 64;

see also Morales, 869 S.W.2d at 942.

       Next, the State asserts in one sentence in a footnote that appellees have not met

their burden of demonstrating the trial court’s jurisdiction because appellees failed to

establish an irreparable injury to a vested property right. See Morales, 869 S.W.2d at

945. The State does not provide any substantive argument with citation to appropriate

authority explaining which prong they challenge—whether appellees failed to establish

an irreparable injury or to show they have a vested property right. See TEX. R. APP. P.



                                              9
38.1(i). Nonetheless, I would construe the State’s brief as arguing that appellees have

not shown that they have a vested property right to use the machines in a certain way

without restriction. 4 See Sterling v. San Antonio Police Dep’t, 94 S.W.3d 790, 794 (Tex.

App.—San Antonio 2002, no pet.) (concluding that the appellant did not have a vested

property right to use gambling devices); City of Corpus Christi v. Maldonado, 398 S.W.3d

266, 270 (Tex. App.—Corpus Christi-Edinburg–Edinburg 2011, no pet.) (concluding that

the merchants had a vested property right in their pipes). I disagree with the State that

appellees have not shown they have a vested property right and with its premise that

appellees are arguing that they have a vested right to use the machines without

restriction. Appellees are not attempting to use the machines as gambling devices as

defined by chapter 47. They are attempting to use the machines in a legal manner as

allowed by chapter 47. See TEX. PENAL CODE ANN. § 47.01(4)(B).

        “Property rights are created and defined by state law,” and “include actual
        ownership of real estate, chattels, and money.” “A right is ‘vested’ when it
        ‘has some definitive, rather than merely potential existence.’” But this right
        does not automatically translate to a “vested property right” to use said
        property a particular way or in a particular location, although these activities
        may be aspects of broader personal rights or liberties.

City of New Braunfels v. Stop the Ordinances Please, 520 S.W.3d 208, 214 (Tex. App.—

Austin 2017, pet. denied) (internal citations omitted).

        Even if a plaintiff has a vested right in the property he owns, he does not have a

vested right to use the property in any way he wishes. See Stop the Ordinances Please,

306 S.W.3d at 931. For example, in Stop the Ordinances Please, the plaintiff had a

vested right in ownership of a cooler, but he did not have a vested right to carry a cooler


       4 I would not address whether appellees established that the will suffer an irreparable injury as it is

not adequately briefed. See TEX. R. APP. P. 38.1(i).


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of a particular size; therefore, because the ordinance banned coolers of a certain size,

the plaintiff did not prove that he had a vested right to use the banned cooler. See id. In

this case, however, appellees are attempting to utilize machines that they allege have not

been banned by chapter 47; they allege that the State has threatened to confiscate

machines that are not prohibited by chapter 47—machines that they claim are being used

in a legal manner and that cannot be confiscated by the State under any law. The State

provided no evidence to the trial court showing that appellees’ machines are illegal or

being used in an illegal manner. Thus, I would conclude that appellees have met their

burden of establishing that they have a vested right to use the machines for jurisdictional

purposes. See id.; Ryder lntegrated Logistics, lnc., 453 S.W.3d at 927; see also City of

Corpus Christi, 398 S.W.3d at 270 (“A seller does have a vested property right in the

possession of legal, physical items of inventory that it owns.”).

       Moreover, in City of Laredo v. Laredo Merchants Association, the plaintiffs, who

were vendors, sought equitable relief from a civil court regarding a city ordinance which

prohibited the use of plastic bags. 550 S.W.3d 586, 591 (Tex. 2018). The Texas

Supreme Court held that it had jurisdiction. Id. at 592 n.28. The court explained that “civil

courts have jurisdiction to enjoin or declare void an unconstitutional penal ordinance when

‘there is the threat of irreparable injury to vested property rights,’” and “where the

ordinance prohibits the complaining vendors from using noncompliant bags and, if they

do, imposes a substantial per-violation fine that effectively precludes small local

businesses from testing the ban’s constitutionality in defense to a criminal prosecution.”

Id.

       Thus, like the plaintiffs in City of Laredo, the statute at issue here prohibits



                                             11
appellees from using their machines or face the threat of criminal prosecution even if the

machines are not illegal gambling devices. Id. at 592. Therefore, because the statute

allows the State to confiscate these machines without any set rules or procedures to

ensure that the machines are in fact illegal, appellees may not use them. Irreparable

harm has been “deemed met in situations where the government’s enforcement of the

penal law in question entails irremediable physical destruction or damage to real or

personal property that would occur before the challenge could be litigated in a criminal

proceeding.” Stop the Ordinances Please, 520 S.W.3d at 216. Thus, because appellees

are unable to use their machines, they are precluded from testing the ban’s

constitutionality in defense to a criminal prosecution, and if appellees do use the

machines, the State has threatened to confiscate those machines, even if they are not

prohibited. See City of Laredo, 550 S.W.3d 586, 592; Stop the Ordinances Please, 520

S.W.3d at 216.

       Therefore, I would conclude that appellees have met their burden of alleging facts

that affirmatively demonstrate the trial court’s jurisdiction to hear this case under Morales.

Tex. Dep’t of Transp., 74 S.W.3d at 867; Morales, 869 S.W.2d at 942; see also City of

Dallas, 1997 WL 284613, at *3 (“[A] trial court can have jurisdiction to enjoin the

noncriminal enforcement of a facially constitutional criminal statute, but lacks jurisdiction

to enjoin the criminal enforcement of a facially constitutional statute. . . .”). I would

overrule the State’s third issue.

                              IV.    GOVERNMENTAL IMMUNITY

       Lastly, the State argues that it is protected by governmental immunity. “[I]f the

Legislature requires that the State be joined in a lawsuit for which immunity would



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otherwise attach, the Legislature has intentionally waived the State’s sovereign

immunity.”   Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697–98 (Tex. 2003).

The Texas Declaratory Judgment Act expressly provides that persons may challenge

ordinances or statutes, and that governmental entities must be joined or notified. Tex.

Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). Governmental entities joined

as parties may be bound by a court’s declaration on their ordinances or statutes. Id.

       Here, appellees are seeking equitable and declaratory relief under the TDJA

questioning the validity of a statute, and therefore, pursuant to the TDJA, the State must

be joined in this lawsuit. See id. Accordingly, the Legislature has intentionally waived the

State’s sovereign immunity in this case, and the trial court has jurisdiction over the case.

See id. I would overrule the State’s fourth issue, and I would affirm the judgment.



                                                        DON WITTIG
                                                        Justice


Delivered and filed the
14th day of November, 2019.




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