Fort Worth’s Second Court of Appeals has been given an assignment that could lead to the end of eight-liners, those slot-machine-like games of chance that operate under the “fuzzy animal” exception to the state’s gambling ban.
The assignment to determine whether eight-liners are constitutional and legal came Friday from the Texas Supreme Court. The court ruled in an appeal by game room operators that challenged Fort Worth ordinances designed to keep the machines out of most neighborhoods.
Regardless of how the Second Court rules, the case is likely to end up back at the Supreme Court. Should eight-liners be deemed illegal it would represent a victory for community opponents who have been trying to shut down game rooms for 27 years, calling them nuisances that attract nefarious activities.
In 1993, the Legislature created the fuzzy animal exception to the Penal Code offense of possessing a gambling device. It was done so that family entertainment centers like Chuck E. Cheese could house games that operate on a child’s desire to win small stuffed toys with their parents’ ample supply of quarters.
Game room operators say eight-liner prizes fall within the exception by rewarding players with noncash prizes worth no more than $5 or 10 times the cost of a single play.
But critics, including Fort Worth’s lawyer David Keltner, say that owners of eight-liners are gaming the system. Instead of stuffed toys, the game room machines disperse tickets that can be accumulated for prizes like an Xbox or plasma TV, said Keltner during February’s oral arguments.
Stephannie Lynn Rylie and other game room operators challenged Fort Worth’s ordinances as being preempted by state regulation, which requires “comprehensive and uniform” state regulation of skill or pleasure coin-operated machines. They are represented by Marcy Hogan Greer.
Fort Worth contends that the state regulation does not apply because the machines violate the Texas Constitution’s ban on “lotteries.”
The trial court said the fuzzy animal exception does not violate the Texas Constitution. But the Fort Worth Court of Appeals said that neither it nor the trial court had jurisdiction over that issue.
The Supreme Court said it could not decide whether the city ordinances are preempted by state law until it first decides whether eight-liners are constitutional and legal. Justice Jeffrey Boyd, writing for a unanimous court, said the state’s regulatory restrictions do not apply to unconstitutional or illegal machines.
“Because we conclude that [Occupations Code] chapter 2153 does not apply to unconstitutional or illegal machines, the next question is whether the Operators’ machines are unconstitutional or illegal,” said Boyd. “Contrary to the court of appeals’ conclusion, that question is relevant and justiciable because if the machines are unconstitutional or illegal, then chapter 2153 does not apply to them and thus cannot preempt the City’s ordinances.”
Boyd noted that two former attorneys general, Dan Morales and Greg Abbott, issued opinions that the Legislature’s fuzzy-animal exclusion is unconstitutional.
“We have never addressed that issue, and the exclusion remains intact, giving rise to legal disputes over whether the exclusion covers particular variations of eight-liners,” said Boyd.
Read City of Fort Worth v. Rylie here.