President's Column
January-February 2010

The bigger the jackpot, the harder the bluff

C. Scott Brumley

County Attorney in Potter County

If you haven’t given thought to how a gambling case in your jurisdiction can play out, consider this (fictional) back-and-forth between two poker match announcers.

Announcer Bob: Tonight, from the mostly-crime-scene-tape-free Giddy Up Motel, the Sedentary Quasi-Sports Network brings you “Poker Is So Much Easier When You Can See the Other Guy’s Hand in the Screen-Corner Inset.” This promises to be a real barn-burner, not just because of all the hyphenated phrases I’m using, but also because we’ll be treated to a gut-check clash between the sport’s juggernauts.

Announcer Jim: Bob, I don’t think you can talk like that on network television.

Bob: Forgive my partner. He doesn’t know that a full house is more than a showcase for the talents of the incomparable Bob Saget.

Jim: And did you just say this is a “sport,” Bob? Did I miss something in the green room refreshment line? Or have you been drinking the Kool-Aid from that Todd Smith guy in Lubbock?

Bob: I’m sorry, but I have to interrupt your mindless drivel, Jim. There seems to be a number of rather assertive new players coming to the table.

Jim: Those are cops, Bob. This appears to be a raid. Our ratings are going to be phenomenal.

Bob: Right you are, Jimbo. This looks an awful lot like the work of that pinheaded bald county attorney. That guy should loosen his tie before it cuts off all the circulation to his ganglia. I haven’t seen anything like this since the Slot Machine World Series of ’98. It’s a sad day when honest folk who sport gold chains and indoor sunglasses look can’t have good, wholesome, family fun.

Jim: Yeah. What’s with that guy? It’s OK in every other county in Texas. I’ll bet his mother doesn’t even like him.

Bob: I’m sure she doesn’t, Jim. Right now, let’s go back to the studio for a red zone update from the quarterfinals of the Apathy Cup backgammon tournament.

Some in my county would be inclined to agree with our imaginary broadcast team when it comes to gambling prosecution in our fair state. While prosecution and controversy generally go together like a straight flush and an all-in bet, few issues can test our fidelity to the oath of office like gambling. It comfortably fills the bill as the poster child for the “who cares” class of offenses. Indeed, even grandmothers who would cheer you on as you prosecute a 20-something student for having three joints in her purse may call you a soulless Nazi for suggesting that there might be even a hint of illegality associated with the neighborhood 8-liner parlor. And imagine how many friends you can make when you tell a local charity (heaven forbid that it be one associated with law enforcement) that its proposed poker run might portend a showdown with chapter 47 of the Penal Code.

Have no illusions. Your office will get calls asking or grousing about gambling. Although some of you may rightly discount much of what I say as the prattling of a former civil geek with more starch in his shirt than George Strait, I speak here from experience. Aside from sundry dust-ups with charities about their casino night fundraisers and a few injunction suits by 8-liner operators around the turn of the last decade, our office spent the better part of last year (and I use “better” rather loosely) litigating against Aces Wired and its corporate offspring about the legality of a “stored value card” scheme. That scheme allowed 8-liner enthusiasts to earn credits on what amounted to a debit card without cash withdrawal availability. A jury found the scheme was gambling but did not find in our favor on the common nuisance issue. (I suppose you could call it a push.) In any event, the vigor with which the case was defended is testament to what’s really at stake: money, and lots of it. How much? It’s hard to say exactly, but since 2002, our office—in a county that surpassed only 110,000 souls in 2000—has handled cases resulting in just over $1 million in seized funds. And we certainly don’t have a seat at every game in town.

To be sure, there will be pushback. People want to gamble. Those same people will remind you, in some form, of the truism passed along to me by TDCAA’s executive director, Rob Kepple, and the inimitable Tom Krampitz: Sin ain’t sin if good people do it.

But there’s the rub. Just as our office has been pilloried for keeping folks from having a little good, clean, “victimless” fun, we’ve also caught flak for letting gambling operations parasitize the community. We’ve even been accused of prosecutorial laziness at best and, at worst, playing favorites. (Perhaps that makes us the Texas version of Harvey Dent, the two-faced DA in the Batman comics.) Ironically, the latter complaints sometimes originate from anonymous sources who, shall we say, have something of a vested interest in ensuring a measure of surgical gambling prosecution. The only thing worse than law enforcement scrutiny is competition. Then there’s the 800-pound joker in the corner. Sometimes—shocking as it may seem—gambling can get mixed up with the O.C. (That’s organized crime, not Orange County.)

How to respond to gambling and inquiries about the interest your office may take in it is largely a function of your office’s prosecutorial approach. “Go fold yourself” is certainly one way you can go, but it’s not going to be good for PR. On the other hand, nice guys tend to leave the table early, so your office is likely to enjoy an array of presentations on how certain operations fit within the nooks, crannies, and loopholes of chapter 47. The popularity that comes with the perceived authority to deal get-out-of-jail-free cards can be flattering, and flattery of the opponent is but one tool of the proficient gambler. Regardless of how cool your office really may be, I would suggest that dealing those cards is a bad bet for at least three reasons.

First, giving opinions on the potential legality of a gaming operation is like responding to inmate mail. If you do it once, you’ll do it a lot, and the end game will always be the same.

That’s where we reach the second reason your office should decline to be dealt into the game. It’s so nice to hear what a reasonable and scholarly legal thinker you are. I believe that about your office. Gambling operators don’t, even though they say they do. They’re not interested in your view, your life experiences, or your family. They want the jackpot: a mistake-of-law defense for their particular scheme. If you choose to give them what they want, though, at least bear in mind that the represented method of operation doesn’t always match how the game really works in practice. The fuzzy animals in the prospectus have a strange way of becoming cold, hard cash in the casino.

Finally, there’s the ethical angle of the proposition. “I knew it,” you’re saying to yourself. “Here comes the sermon.” And you’re right—but bear with me. It may be true that the only ethics in a game are those encompassed in its rules. As we lawyers know, however, the ethical rules we have to comply with carry serious consequences. Here, the relevant consideration is Rule 2.02 of the Disciplinary Rules of Professional Conduct. In substance, that rule prohibits a lawyer from evaluating a matter affecting the lawyer’s client if the evaluation is for the use of a non-client and the client has not consented. Who, you may ask, is the pertinent client in this scenario? Why, it’s none other than the Great State of Texas. So, when asked for an opinion on a particular gaming scheme, you would do well to ask yourself whether the State would consent to giving the opinion. And who would consent on behalf of the State? If your answer to that question is “me,” you should give some thought to what a Mother Superior at a Catholic school might say will happen to you if you choose to take that self-paved road.

How you choose to play the issue is, naturally, up to you. In closing, I can only offer a few “tells” you may use to chart your strategy.

1) If you believe an operator is lying to you about a gambling issue, it’s probably because he is. These folks are in it to make money, not to improve the quality of life in your county. That is best accomplished if they’re not under your microscope.

2) If an operator offers you a stack of attorney general opinions and court cases from other states attesting to the legality of his operation, it’s because there aren’t any from Texas. When prosecutors lose gambling cases here, it’s generally on procedural points, not on the merits.

And, 3) if you’re pestered about why you’re picking on this wholesome fun industry, the response should be simple: It’s against the law. Basically, running a lawful game of chance in Texas and making money at it are mutually exclusive propositions. Meanwhile, we don’t write the laws. We enforce them, and we don’t get to pick which ones we want to enforce. My mother gets that, and so should Jim, Bob, and the gambling apologists in your community. If they don’t want to, they have a choice of where to go: the jail in your county or the casinos across the borders in Oklahoma, Louisiana, and New Mexico.