                                   NO. 07-08-0068-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 28, 2009
                         ______________________________

             IN THE MATTER OF FIFTY-ONE GAMBLING DEVICES
          TWENTY SIX THOUSAND EIGHT HUNDRED EIGHTY DOLLARS
                      IN UNITED STATES CURRENCY
                   _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                NO. 56,014-B; HONORABLE JOHN B. BOARD, JUDGE
                        _______________________________


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


                                        OPINION


       This appeal arises from a forfeiture proceeding under article 18.18 of the Code of

Criminal Procedure.1 Through ten issues, appellant Mike Lewis2 challenges the trial court’s

judgment forfeiting gambling devices, gambling proceeds and other items, and the denial

of his motion to recuse the trial court judge. By cross-appeal, the State challenges denial

of its request for attorney’s fees and costs by the administrative judge in the recusal


        1
          Tex. Code Crim. Proc. Ann. art. 18.18 (Vernon Supp. 2008). All references to
article 18.18 in this opinion are to that article of the Code of Criminal Procedure.

      2
        A suggestion of Mike Lewis’s death was filed by his appellate counsel on
September 24, 2009. The appeal proceeds according to the provisions of Rule of
Appellate Procedure 7.1(a)(1).
proceeding. We affirm the judgment of forfeiture and the denial of Lewis’s recusal motion,

and render an order awarding the State attorney’s fees and costs.


                                       Background


       During January 2004, as part of an undercover investigation, an officer with the

Amarillo Police Department twice entered an Amarillo gaming establishment owned by

Lewis and known as “Mike’s Amusements.” While at the establishment, the officer played

electronic games for cash.


       Based on the officer’s affidavit, a search warrant was issued commanding search

and seizure of gambling devices, gambling paraphernalia, and proceeds derived from any

gambling device at Lewis’s establishment. Officers executed the warrant seizing gaming

machines, cash, and other items subject to the warrant. The State sought forfeiture of the

items seized. In May 2005, the Honorable John Board, judge of the 181st Judicial District

Court, issued a notice to Lewis to appear and show cause on May 24 why the items seized

should not be forfeited.


       Lewis filed a general denial and a motion to recuse Judge Board. Judge Board

declined recusal without order and forwarded the motion to the Honorable Kelly Moore,

presiding judge of the administrative judicial district. Judge Moore denied the motion, and

other recusal motions followed.


       On November 1, 2007, Judge Board conducted a show cause hearing and at its

conclusion ordered forfeiture of the seized devices and proceeds. Lewis filed two post-trial


                                             2
recusal motions and on the second, the State sought an award of attorney’s fees and costs

according to Civil Practice and Remedies Code section 30.016(c).3 Judge Moore denied

the recusal motion as well as the State’s request for attorney’s fees and costs. Lewis

appeals the judgment of forfeiture and denial of recusal. By cross-appeal, the State

appeals denial of its request for attorney’s fees and costs.


                                        Discussion


       Lewis presents seven issues and three supplemental issues which we take up

sequentially before discussing the State’s issue on cross-appeal.


       Issue One - Tertiary Recusal Motion


       By his first issue, Lewis argues the trial court lacked authority to conduct the show

cause hearing of November 1, 2007, because a recusal motion was pending.


       The motion to recuse Judge Board to which we have referred was served on May

13, 2005 (May 13 motion).4 Lewis argued that in the trial court’s art. 18.18(b) notice, the

terms “gambling devices” and “gambling proceeds” were not qualified by the adjective

“alleged.” According to Lewis, this omission signaled Judge Board had “already reached

a determination regarding the merits of the matters in dispute.” Judge Board did not

recuse himself and forwarded the motion to Judge Moore. In an order signed May 18,



       3
           Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon 2008).
      4
        We identify Lewis’s recusal motions by date of service to avoid confusion as two
motions bear a May 20 file mark.

                                             3
Judge Moore denied the May 13 motion without a hearing because it was not verified as

required by Rule of Civil Procedure 18a(a). Tex. R. Civ. P. 18a(a). The order was

delivered to Judge Board, counsel for Lewis, and counsel for the State by facsimile on May

18.


       On May 18, Lewis served a second motion to recuse (May 18 motion) that contained

a jurat. The jurat, however, bore no notarial signature or seal.


       On May 19, Lewis served his “Supplemental and Amended Motion to Recuse, Brief

and Motion for Leave to Supplement and Amend” (May 19 motion). The May 19 motion

repeated Lewis’s argument for recusal under Rule 18a based on the claimed bias of the

trial court. But it also added a denial of due process claim.


       On May 20, 2005, Judge Moore conducted a telephonic hearing of Lewis’s recusal

motions. Exchanges on the hearing record between Judge Moore and counsel for Lewis

indicate the subject of the hearing.


       When Judge Moore called the motion for hearing counsel for Lewis identified

himself and announced, “I’m Mr. Lewis’ attorney of record, and I’m here ready to go

forward on a motion to recuse that I filed for Mr. Lewis and an amended motion.”


       [Judge Moore addressing counsel for Lewis]: And I have read your original
       motion, your second motion that you filed that was actually verified, and your
       supplemental and amended motion to recuse brief and motion for leave to
       supplement and amend, and so I have read those in detail.
       ***




                                             4
      [Counsel for Lewis]: I do want to establish that the supplemental and
      amended motion to recuse brief and request for leave to amend is before the
      Court; is that correct?
      [The court]: That’s what I called for hearing, yes, sir.
      ***
      [Counsel for Lewis]: [T]hen [the May 19 motion] has a request for leave to
      amend within seven days of trial, meaning this trial date, of course.
      ***
      [Judge Moore]: I’ve already told you, I don’t consider a motion to recuse an
      adversary proceeding. You filed your motions within the time allowed by law,
      and I’m here to hear the merits of your motions.


      Counsel for Lewis was sworn as a witness and addressed the theory of bias

advanced by Lewis’s motions for recusal.


      On inquiry by Judge Moore, counsel for the State explained he prepared the art.

18.18(b) notice in question at the request of Judge Board. Counsel for the State followed

a form Judge Board used in an earlier case.


      At the conclusion of the hearing, Judge Moore announced, “I’m going to deny the

motion to recuse.” This oral rendition was memorialized in a written order signed May 20,

stating, “Lewis’ Motion to Recuse Judge is denied.”


      On May 20, following the telephonic hearing, Lewis served his “Second

Supplemental and Amended Motion to Recuse or Alternatively, Motion for Re-

consideration” (May 20 motion). By this motion, Lewis reurged the prior ground of judicial

bias and added a claim of improper ex parte communication between Judge Board and the

State’s attorney. The claim was founded on the statement of the State’s attorney at the


                                             5
hearing of May 20 that he prepared the art. 18.18(b) notice at Judge Board’s request using

a template that tracked a notice prepared by Judge Board in a prior case.


      Because Judge Moore had not ruled on the May 20 motion by May 24, the

scheduled date of the show cause hearing, Judge Board continued the hearing.


      The kernel of Lewis’s argument under this issue is the trial court lacked authority to

conduct the show cause hearing of November 1, 2007, because of the prohibition of Rule

of Civil Procedure 18a.5 To avoid the application of Civil Practice and Remedies Code

section 30.016, Lewis argues further that no “tertiary recusal motion,” as defined by that

section, was on file at the time of the hearing. We disagree.


      In pertinent part, section 30.016 provides:


      In this section, “tertiary recusal motion” means a third or subsequent motion
      for recusal or disqualification filed against a district court or statutory county
      court judge by the same party in a case.


      A judge who declines recusal after a tertiary recusal motion is filed shall
      comply with applicable rules of procedure for recusal and disqualification
      except that the judge shall continue to:


      5
          In pertinent part, Rule 18a(d) provides:

      If the judge declines to recuse himself, he shall forward to the presiding
      judge of the administrative judicial district, in either original form or certified
      copy, an order of referral, the motion, and all opposing and concurring
      statements. Except for good cause stated in the order in which further action
      is taken, the judge shall make no further orders and shall take no further
      action in the case after filing of the motion and prior to a hearing on the
      motion.

Tex. R. Civ. P. 18a(d).

                                              6
              (1) preside over the case;
              (2) sign orders in the case; and
              (3) move the case to final disposition as though a tertiary recusal
                  motion had not been filed.


Tex. Civ. Prac. & Rem. Code Ann. § 30.016(a)(b) (Vernon 2008).


       By the time of the November 1, 2007 hearing, Lewis had filed four motions to recuse

Judge Board, those of May 13, May 18, May 19 and May 20, 2005. Lewis argues the May

18 motion was superseded by the May 19 motion, which in turn was superseded by the

May 20 motion, because he entitled the latter two “supplemental and amended” motions.

We cannot agree Lewis’s use of the terms “supplemental” and “amended” in the title of his

May 19 and May 20 motions alters their effect for purposes of the count under section

30.016(a). Notably, through these pleadings Lewis expanded his original recusal claim.

The May 19 motion relied on Rules of Civil Procedure 18a and 18b but added a

constitutional claim of denial of due process. The May 20 motion, filed after the May 20

hearing, added a claim of improper ex parte communication between the trial court and

counsel for the State. It is the substance of a motion that determines its nature, not merely

its title. See State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); BCY Water Supply

Corp. v. Residential Invs., Inc., 170 S.W.3d 596, 604 (Tex.App.–Tyler 2005, pet. denied).

We find Lewis had filed a tertiary recusal motion, and Judge Board was empowered by

section 30.016(b) to preside over the November 1, 2007 show cause hearing. We overrule

Lewis’s first issue.


       Related to his first issue, Lewis raises three supplemental issues.


                                             7
       Without supporting authority, Lewis argues in his first supplemental issue that

because the May 13 and May 18 motions did not meet the requirements of Rule 18a(a)6

they must be omitted from the section 30.016(a) calculation. A plain reading of the statute

does not support such a gloss. See Fitzgerald v. Advanced Spine Sys., Inc., 996 S.W.2d

864, 865 (Tex. 1999) (“it is cardinal law in Texas that a court construes a statute, first, by

looking to the plain and common meaning of the statute’s words”). Moreover, to sustain

Lewis’s argument would create uncertainty in the application of section 30.016, favor

defective motions, and generally run counter to sound principles of motion practice. We

overrule Lewis’s first supplemental issue. Lewis’s third supplemental issue is premised on

similar contentions, and we overrule it as well.


       In his second supplemental issue, Lewis argues that if the May 13 motion is properly

included in the count of section 30.016(a), then Judge Moore abused his discretion by

overruling the motion without a hearing. Case law holds otherwise. See, e.g., In re Lincoln,

114 S.W.3d 724, 726 (Tex.App.–Austin 2003, orig. proceeding) (no abuse of discretion

shown when administrative judge summarily denied unsworn recusal motion). We find the

decision not to conduct an oral hearing of a facially defective motion was within the sound

discretion of Judge Moore. Lewis’s second supplemental issue is overruled.


       6
           A motion for recusal or disqualification of a judge:

       shall be verified and must state with particularity the grounds why the judge
       before whom the case is pending should not sit. The motion shall be made
       on personal knowledge and shall set forth such facts as would be admissible
       in evidence provided that facts may be stated upon information and belief if
       the grounds of such belief are specifically stated.

Tex. R. Civ. P. 18a(a) (in pertinent part).

                                               8
       Issue Two - Want of Prosecution


       In his second issue, Lewis argues the trial court abused its discretion by denying his

motion to dismiss the case for want of prosecution. A trial court is empowered to dismiss

a case for want of prosecution under Rule of Civil Procedure 165a or through its inherent

power to control its docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

(Tex. 1999). An appellate court reviews a trial court’s denial of a motion to dismiss for want

of prosecution under an abuse of discretion standard. Christian v. Christian, 985 S.W.2d

513, 512 (Tex.App.–San Antonio 1998, no pet.). A trial court abuses its discretion when

it acts “without reference to any guiding rules and principles.” Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


       The record shows that on May 16, 2005, Lewis filed a motion for continuance

asserting in part the need for unspecified pre-trial discovery to prepare for the show cause

hearing, then scheduled for May 24. On May 16 Lewis also filed a motion to abate,

asserting his case presented legally and factually similar issues to a case then on appeal

before this court. Lewis requested abatement pending a decision to “avoid unnecessary

time and expense of both the resources of the Court and of interested parties.” The record

contains no order disposing of Lewis’s abatement motion. Meanwhile, the parties engaged

in the flurry of activity connected with Lewis’s recusal motions that we have described. On

May 23, Lewis served a supplemental motion for continuance through which he requested

continuance of the show cause hearing “to a date that allows pretrial matters and

preparation to be completed.” Then at the May 24 hearing, Lewis argued that Judge Board



                                              9
could not proceed with the show cause hearing because of the pending May 20 recusal

motion. The extent of discovery the parties undertook cannot be discerned from the record

although attached to an August 2005 motion for protective order filed by the State is a copy

of a deposition notice from Lewis noticing the deposition of the State’s attorney. The State

sought protection alleging, inter alia, the deposition would require disclosure of core work

product. The record contains no order on the motion nor does it indicate the deposition

occurred. In a letter to the trial court dated November 16, 2006, the State requested a

setting of the show cause hearing. It argued the May 20 motion remained pending, and

Judge Board was empowered to proceed under section 30.016. The record contains no

indication either party requested a ruling by Judge Moore after Lewis filed the May 20

recusal motion. In a letter to counsel dated August 21, 2007, Judge Board set the show

cause hearing for November 1, 2007. On October 31, 2007, Lewis filed a motion to

dismiss the case. It was denied the following day before the show cause hearing began.

In denying the motion, the court found on the record the primary cause of delay was

Lewis’s requests for continuance and recusal.


       Lewis correctly observes that according to the Texas Rules of Judicial

Administration, in non-jury cases district court judges “should, so far as reasonably

possible, ensure that all” non-family law civil “cases are brought to trial or final disposition,

. . . . [w]ithin 12 months from appearance date.” Tex. R. Jud. Admin. 6(a)(2), reprinted in

Tex. Gov’t Code Ann., tit. 2, subtit. F–Appendix (Vernon Supp. 2008). According to Rule

1 of the rules of judicial administration, the rules are promulgated pursuant to section

74.024 of the Government Code. Id. at Rule 1. Section 74.024 provides “the supreme


                                               10
court may consider the adoption of rules relating to: (1) nonbinding time standards for

pleading, discovery, motions, and dispositions.” Tex. Gov’t Code Ann. § 74.024(c)(1)

(Vernon Supp. 2008). Thus, the application of Rule 6 is discretionary and non-binding.

See In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.–Houston [1st Dist.] 1991, no writ)

(juvenile case). Moreover, circumstances may preclude adherence to the standards under

especially complex cases or those presenting special circumstances. Tex. R. Jud. Admin.

6(e), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F–Appendix (Vernon Supp. 2008).

         On the record before us, we cannot say the trial court abused its discretion in

denying Lewis’s motion to dismiss for want of prosecution. We overrule Lewis’s second

issue.


         Issues Three and Five - Failure to Recuse


         By his third issue, Lewis asserts Judge Moore abused his discretion by failing to

recuse Judge Board. Lewis presents his recusal argument through four sub-issues: in the

art. 18.18(b) notice Judge Board evidenced bias by using the terms “gambling proceeds”

without the adjective “alleged;” Judge Board and the prosecutor discussed the case and

the State prepared the art. 18.18(b) notice for Judge Board; art.18.18 cast Judge Board

as magistrate and prosecutor, and because the case was not timely prosecuted by Judge

Board as prosecutor, Judge Board as magistrate should not have adjudicated Lewis’s

motion to dismiss for want of prosecution; and the State engaged in forum shopping

because all Randall County 8-liner forfeiture cases since 2001 were filed in Judge Board’s

court and the State prevailed in each instance. Lewis’s grounds for recusal are founded

in claims of partiality and bias.

                                            11
       An order denying a recusal motion is reviewed on appeal from the final judgment,

applying the abuse of discretion standard. Tex. R. Civ. P. 18a(f). “A judge shall recuse

himself in any proceeding in which: (a) his impartiality might reasonably be questioned; (b)

he has a personal bias or prejudice concerning the subject matter or a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding.” Tex. R. Civ. P.

18b(2)(a),(b). We apply a reasonable person standard to determine whether denial of a

recusal motion was an abuse of discretion. Woodruff v. Wright, 51 S.W.3d 727, 736

(Tex.App.–Texarkana 2001, pet. denied). The inquiry, therefore, is whether a reasonable

member of the public at large, knowing all the facts in the public domain concerning the

judge's conduct, would have a reasonable doubt that the judge is actually impartial.

Rogers v. Bradley, 909 S.W.2d 872, 881 (Tex. 1995) (Enoch, J., concurring). “[B]ecause

this test requires courts to evaluate a motion to recuse from a disinterested observer’s

point of view, it seems best suited to achieve the primary purpose of Rule 18b(2)(a):

avoiding the appearance of judicial bias.” Id. at 882.


              Prejudgment of the Case


       Lewis is correct that the language of the article 18.18(b) show cause notice signed

by Judge Board and addressed to Lewis in places refers to “gambling proceeds,” “gambling

devices,” and gambling paraphernalia” without the modifying term “alleged.” For instance,

the notice recites in part, “[a] detailed description of the property seized and total amount

of the gambling proceeds is as follows . . . .” Lewis argues this phraseology without the

qualifying adjective “alleged” indicates prejudgment by Judge Board.



                                             12
       A forfeiture proceeding begins with the State seeking a search warrant supported

by an affidavit averring “sufficient facts . . . to satisfy the issuing magistrate that probable

cause does in fact exist for its issuance.” Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon

Supp. 2008); Hardy v. State, 102 S.W.3d 123, 127 (Tex. 2003). If the search warrant

issues, it is executed by the State which conducts a search and seizure of the designated

property. Tex. Code Crim. Proc. Ann. arts. 18.06 (Vernon 2005) & 18.09 (Vernon Supp.

2008). If no prosecution or conviction follows the seizure, the magistrate must notify the

person in possession of the property or proceeds made the subject of the search warrant

to show cause why the property should not be destroyed and the proceeds forfeited. Art.

18.18(b). The show cause hearing is an adversary proceeding. Hardy, 102 S.W.3d at

127, 129. In a civil forfeiture proceeding, the State satisfies its initial burden by establishing

probable cause for seizing the subject property or proceeds. Id. at 129. At the show cause

hearing, therefore, the burden is on any person interested in the seized property or

proceeds to prove by a preponderance of the evidence why the property is not subject to

destruction or forfeiture. Id. at 127, 129.


       Assuming, arguendo, the correctness of Lewis’s premise that the language of the

notice could properly be said to evidence Judge Board’s judicial attitude, the difficulty with

Lewis’s argument based on the language of the notice here is that the language is not

consistent. The notice elsewhere contains the modifier “alleged” when referring to the

seized property. The notice includes, in bold font, the language of art.18.18(e) (“[a]ny

person interested in the alleged gambling device or equipment . . . gambling proceeds




                                               13
. . . .”). Reading the notice as a whole, we do not agree it establishes an abuse of

discretion.


              Improper Ex Parte Communication


       Lewis next contends the State’s attorney conferred ex parte with Judge Board about

the forfeiture proceeding and the contents of the art. 18.18(b) notice, and such contact

presents the appearance of Judge Board’s partiality in favor of the State. The only

evidence of contact between Judge Board and the State’s attorney was that developed at

the May 20, 2005, telephonic recusal hearing before Judge Moore. During the proceeding,

the State’s attorney notified Judge Moore that he prepared the art. 18.18(b) notice for

Judge Board. Later in the hearing Judge Moore asked the State’s attorney, “Where did

you get the forms to prepare the documents?” The State’s attorney replied:


       I got the form from Judge Board. We had a case about a year ago where
       this issue came up, and he drafted the notice that time. In this particular
       case, he instructed me to go ahead and do it since we had a template. I
       made one modification to that. I put in the word show cause, and I changed
       up the inventory of the items listed; otherwise, it was what he had used
       before.


       All that can be said from this scant evidence is Judge Board instructed the State’s

attorney to prepare the art.18.18(b) notice using a form Judge Board previously prepared.

The record permits only speculation regarding what, if anything, else was said. We are

unable to say the evidence of ex parte contact leads to the conclusion Judge Moore

abused his discretion.




                                           14
               The Role of the Trial Court in an Article 18.18 Forfeiture Proceeding


       Lewis next argues art.18.18(b) assigns the magistrate, Judge Board, responsibility

for prosecution of the case. Because he carries that responsibility, Lewis contends,

allowing Judge Board to rule on Lewis’s motion to dismiss for want of prosecution “creates

a clear appearance of possible bias or lack of impartiality.” Lewis’s premise that Judge

Board, as the magistrate, is placed in the position of prosecuting the forfeiture is supported

only by Lewis’s interpretation of article 18.18, and he cites no authority agreeing with his

interpretation. His argument ignores the fact, apparent from the record, that the Randall

County Criminal District Attorney’s office represented the interests of the State in the

forfeiture proceeding in the trial court. We fail to see how a trial judge exhibits bias or

partiality simply by performing his statutory responsibilities in a forfeiture proceeding.


       In a broader sense, Lewis’s argument is an attack on article 18.18(b). He does not

contend the article is unconstitutional or its strictures were not properly followed by the trial

court. Rather it is the effect of the statute he condemns. But, as courts often have

recognized, it is the legislative branch, not the judicial, that evaluates the wisdom of

legislation. See, e.g., In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008) (arguments that

statute is unwise or unfair must be addressed to legislature, in absence of constitutional

claim); Ullmann v. Jasper, 70 Tex. 446, 452-53, 7 S.W. 763, 765 (1888) (“where a rule is

given by act of the Legislature, courts are not at liberty to disregard it, or to attempt to avoid

its effects, when applied to a state of facts contemplated by it”).




                                               15
                Forum Shopping


         Lewis’s last contention in support of his third issue asserts Judge Moore should

have recused Judge Board because all 8-liner forfeiture cases in Randall County from “at

least 2001” were filed in Judge Board’s court and in each case the State obtained the relief

requested. This, Lewis asserts, violates a local rule requiring random assignment of cases

by the district clerk and amounts to forum shopping by law enforcement personnel.


         According to a stipulation of the parties, since “2001 or 2002” all forfeiture cases in

Randall County handled by the assistant district attorney representing the State in the case

at hand were filed in Judge Board’s court. And, according to the stipulation, in each of

these cases reaching judgment, the State prevailed. The record does not show the

number of cases involved or in what court other prosecutors filed cases. The local rule of

case assignment directs the district clerk to randomly assign civil cases among the district

courts of Randall County. It does not address the issuance of search warrants on proper

application by law enforcement. See art. 18.18(b) (magistrate to whom return of warrant

was made shall issue show cause); Hardy, 102 S.W.3d at 127 (forfeiture proceeding under

chapter 18 of Code of Criminal Procedure begins when affidavit is presented to

magistrate).


         On this record, we cannot say Judge Moore abused his discretion by not recusing

Judge Board on the grounds raised by Lewis in his sub-issues. We overrule Lewis’s third

issue.




                                               16
       In his fifth issue, Lewis presents further argument regarding the State’s forum

shopping and the resulting appearance of bias on the part of Judge Board. Our disposition

of his third issue disposes of the fifth issue as well.


       Issue Four - Stay of Judgment


       In his fourth issue, Lewis complains of what he characterizes as Judge Moore’s

“refusal to even take up and allow a record to be made” regarding a pleading Lewis filed

on November 21, 2007, entitled “Application to Protect Jurisdiction.” In this pleading, filed

in the trial court but addressed to Judge Moore, Lewis sought an order staying Judge

Board’s “entry of any judgment” following the November 1 show cause hearing until Judge

Moore ruled on Lewis’s May 20 recusal motion. We overrule the issue for several reasons

but here note simply that its overruling is required by our conclusion Judge Board was

authorized by Civil Practice & Remedies Code section 30.016 to preside over the show

cause hearing.


       Issue Six - Gambling Devices


       In his sixth issue, Lewis argues the trial court misapplied the exception to the term

“gambling device”7 provided by Penal Code section 47.01(4)(B). See Tex. Penal Code


       7
        Article 18.18 incorporates the Penal Code section 47.01(4) definition of gambling
device. Tex. Code Crim. Proc. Ann. art. 18.18(g)(2) (Vernon Supp. 2008). As defined by
Penal Code section 47.01(4) a gambling device:

       means 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.

Tex. Penal Code Ann. § 47.01(4) (Vernon 2003).

                                              17
Ann. § 47.01(4)(B) (Vernon 2003).8 We interpret Lewis’s complaint is the trial court erred

by denying his motion for directed verdict on the ground that the 51 seized machines fall

within the section 47.01(4)(B) exception.


       According to the evidence at the show cause hearing, an undercover officer playing

Lewis’s gaming machines received $5 tickets from a machine. An employee of Lewis

converted the tickets to cash and deposited the cash into another machine for additional

play. Lewis contends the only difference in this practice and that of machines in an arcade

for children that reward high scores with additional play is the former keep track of a right

to additional play by a paper ticket while the latter employ paperless electronic score

keeping. This distinction, complains Lewis, is “hyper technical.”


       Whether the practice of awarding tickets by a gaming machine that are then

converted to cash for additional play comes within the section 47.01(4)(B) exception in a

civil forfeiture proceeding was before the Texas Supreme Court in Hardy. 102 S.W.3d 123.

According to the facts of Hardy, tickets awarded by a gaming machine could be exchanged


       8
           The exception provided by Paragraph B reads:

       A “gambling device” is not an:

       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.

Tex. Penal Code Ann. § 47.01(4)(B) (Vernon 2003).


                                             18
through a game room attendant for cash to play another machine. Id. at 132. In deciding

the applicability of the section 47.01(4)(B) exclusion, the Court held:


         This practice of exchanging tickets for cash . . . removes the machines from
         the section 47.01(4)(B) exclusion. While additional play in itself is not
         proscribed, when that additional play is accomplished by providing cash to
         play other machines, the statutory exclusion is not satisfied. The exclusion
         requires that the machine at issue reward the player “exclusively with
         noncash merchandise prizes, toys, or novelties, or a representation of value
         redeemable for those items.” Tex. Penal Code § 47.01(4)(B) (emphasis
         added). Under the statute, once cash is awarded, it does not matter whether
         the player deposited the cash directly into the machine or whether an
         attendant performed this task. Cash to be used for play on another machine
         is not a noncash merchandise prize, toy, or novelty. If tickets are exchanged
         for cash, regardless of whether that cash is used to play another machine,
         the exclusion does not apply.


Id. We find Hardy controls disposition of Lewis’s legal argument in this issue. While Lewis

contends Hardy is overly technical, the holdings of the Texas Supreme Court nonetheless

are binding on this court. See In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (pointing out

courts of appeals are not free to disregard opinions of Texas Supreme Court). The trial

court did not err in denying Lewis’s motion for directed verdict. We overrule Lewis’s sixth

issue.


         Issue Seven - Authority of Attorney for State


         In his seventh issue Lewis contends the criminal district attorney for Randall County

was without authority to prosecute the case because art. 18.18(b) places all prosecutorial

responsibility on the magistrate. Lewis presented the contention in the trial court by means

of motion pursuant to Rule of Civil Procedure 12, which authorizes a party by sworn motion



                                              19
filed in the trial court to challenge the authority of an attorney to prosecute or defend an

action. Tex. R. Civ. P. 12; see Angelina County v. McFarland, 374 S.W.2d 417, 422 (Tex.

1964) (describing operation of rule).


       Although the record shows Lewis filed his Rule 12 motion, it does not show the trial

court ruled on the motion. Moreover, the motion would appear to have been untimely,

since it was filed almost three months after trial. No error with respect to the motion is

preserved for our review. Tex. R. App. P. 33.1(a)(2). We overrule Lewis’s seventh issue.


The State’s Cross-Appeal


       The State filed a notice of appeal and asserts by cross-appeal that Judge Moore

abused his discretion by denying its request for attorney’s fees and costs at the February

1, 2008, hearing of Lewis’s “Fourth Supplemental and Amended Motion to Recuse.” For

its requested award of attorney’s fees and costs, the State relies on Civil Practice and

Remedies Code section 30.016(c) which provides:


       A judge hearing a tertiary recusal motion against another judge who denies
       the motion shall award reasonable and necessary attorney's fees and costs
       to the party opposing the motion. The party making the motion and the
       attorney for the party are jointly and severally liable for the award of fees and
       costs. The fees and costs must be paid before the 31st day after the date
       the order denying the tertiary recusal motion is rendered, unless the order is
       properly superseded.
Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon 2008).


       At the February 1 hearing, Judge Moore denied Lewis’s recusal motion. The State

presented evidence of attorney’s fees and costs expended and the court expressly found


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$675 was a reasonable attorney’s fee and $1.23 a reasonable cost for responding to the

motion. Lewis presented no controverting evidence. The court, however, denied the

State’s request for attorney’s fees and costs.


       The record reveals Lewis’s “Fourth Supplemental and Amended Motion to Recuse”

was the sixth recusal motion he filed against Judge Board. The February 1 hearing was

of a tertiary recusal motion. Tex. Civ. Prac. & Rem. Code Ann. § 30.016(a) (Vernon 2008).

The term “shall” as used by statute is generally recognized as “mandatory, creating a duty

or obligation.” See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing

Tex. Gov’t Code Ann. § 311.016(2)). Because Judge Moore denied the requested recusal

of the trial court judge an award of reasonable and necessary attorney‘s fees was

mandatory. The refusal to grant the requested attorney’s fees and costs was an abuse of

discretion. See, e.g., In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.

2001) (trial court has no discretion in applying law to facts and failure to correctly apply law

is abuse of discretion). We sustain the State’s single issue on cross-appeal.


                                         Conclusion


       Judge Moore’s order denying attorney’s fees and costs is reversed and in

accordance with statute we order that the State recover from Lewis and his attorney, jointly

and severally, the sums of $676.23 for attorney’s fees and $1.23 for costs. The sums

awarded shall be paid before the 31st day after the day of this opinion unless properly

superseded. See Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon 2008).




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      Otherwise, having overruled each of Lewis’s issues we affirm the judgment of the

trial court and affirm the orders of Judge Moore denying recusal of Judge Board.




                                               James T. Campbell
                                                    Justice




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