Quote:
Originally Posted by michelle227
What are you claiming is a question of law? The fact that this is NOT a felony in Texas? That a JURY is not going to impose pen time? Sentencing in Texas is determined by a jury in a jury trial, and that is ONLY if it moves to a sentencing phase of the trial process.
The questions to be answered would be contained in the jury instructions read BY the trial judge. My guess is you have never seen one of those documents...they are not typically a novella but they do often run six to twelve pages depending on how many elements of the law are being defined and what alternate elements or lesser-included offenses or affirmative defenses exist in a given case.
The statutes offer a LOT of room for competent defense counsel to have a field day which is why few prosecutors would even look to have this land on their plate. And, as noted, a sanctuary city that has punted most basic pot prosecutions (another misdemeanor offense) is not one with poker as a priority...I would easily see Travis County being in the same category given that they have historically been far more liberal than the neighbors to the north (Williamson) or to the south (Hays). Granted, both Williamson and Hays have softened in the past decade with the departures of Bradley and Wenk, but one is STILL better off when the case is in Travis than in the other two.
Oopsie..thought this was clear. For the uninformed, judges decide questions of law, juries decide questions of fact.
In this instance, the judge will decide whether the conduct of one of the so-called "legal" poker rooms violates the "economic benefit" defense of s47.02 (b). I believe that 99.9% of judges will say an economic benefit occurred.
I practice in another jx, and my area of practice is gaming regulation. IMO, 47.01 et seq is very well written, very carefully constructed (also note that the practice notes state the legisation was to proscribe commercial gambling businesses, which should clear up any ambiguity about what "economic benefit" means), it looks to me like it's a pretty comprehensive and clear statutory scheme. And,yeah, I'm pretty good at finding the cracks in statutes and exploiting them for my clients. I'm very much pro gaming but this model is a loser IMO. It trades a direct economic benefit to the operator for an indirect one, and I don't see language that would indicate that's a distinction which is a difference. May God bless the Harris/Bexar County DA that disagrees or doesn't care.
However, on my fourth or fifth reading of the statute, I did find something I feel pretty good about. However, I don't play for the honor of the game, especially, when potentially literally tens of millions of dollars in revenues are at stake, and no one on this forum likely has $50K to hire a top tier firm to handle both the defense and the appeal-because that's what it's going to run (yeah..you could theoretically do it for less than $10K, but considering the potential upside, why take chances?).
Finally, this gets resolved through the courts, not the lege. You have close to zero chance in the lege. Courts protect minority interests, and while gambling is an emotional subject for many a judge, this is still your best shot at having a legal poker industry in the state.
I have three or four other projects, mostly involving sports betting, filling my plate right now. Maybe if it's still kicking in the spring I'll reach out to a couple of the owners..and yes I've already been to a few of these operations. Some are run better than others.
Final thought...the equities appear to be different in Austin, SA, Dallas and Houston. I may be a much more popular guy in Dallas or Houston than I might be in Austin. I don't take that personally at all, it comes with the territory.