Odessa Mayor Javier Joven told city council members he believes a recent Texas Second Court of Appeals decision to classify 8-liner gaming machines “lotteries” could allow the Odessa Police Department to seize the machines, which he believes are “destroying” lives.
For the past several months, attorneys with the city and Ector County have been working to tighten up ordinances pertaining to game rooms because of an uptick in criminal activity near the businesses. The proposed ordinances address everything from location to hours to appearance.
As of Monday, there were 26 game rooms in operation within the city limits of Odessa, 12 of which didn’t exist two years ago.
During a discussion on the city’s ordinance at Tuesday night’s council meeting, Joven told council members the Texas Second Court of Appeals recently determined the 8-liner machines are lotteries and therefore unconstitutional, regardless of existing rules that consider them no different than the games at Chuck E. Cheese that dispense prizes valued at less than $5.
Two game room owners sued the City of Fort Worth over the matter and while it made it up to the Texas Supreme Court, the high court sent it back down to the Texas Second Court of Appeals. A three-judge panel issued its opinion last month.
The mayor said he has spent hours on the phone since the opinion was rendered with attorneys in Orange, Hardin and Jefferson counties, including Jefferson County District Attorney Bob Wortham.
“We might ask the question, ‘Could we send a letter of stop and desist and confiscate those games’ and he said the only thing that will stop you is if your law enforcement would not do it. And that’s every county and every municipality,” Joven said. “I have yet to find one DA or U.S. Attorney I have given this to that has told me anything different… I have crossed every t and dotted every i and I think this is something we need to consider going forward because this changes the whole thing.”
Joven suggested giving the game room owners 30 days to remove the 8-liner machines before confiscating and destroying the games.
He said the game rooms could continue to operate if they had other types of machines, but Odessa City Attorney Natasha Brooks and Senior Assistant City Attorney Monique Wimberly said it’s unclear if the game rooms have other types of machines.
“Everyone here within this council chamber knows what’s going on,” Joven said.
He personally knows of older relatives and friends who are struggling financially who have turned to the game rooms in the hopes of earning extra cash and have ended up not being able to pay their bills, Joven said.
“They’re destroying lives, destroying families, kids are being destroyed,” he said. “The thing is, we need to take action. This community is demanding for us to take action.”
Brooks told the council the Fort Worth game rooms intend to ask the Second Court of Appeals to rehear the matter, but with all seven judges in attendance. They must file their motion by May 2, she said.
Brooks also noted Odessa is within the 11th Court of Appeals out of Eastland, which hasn’t addressed the 8-liner matter. She also said the Second Court of Appeals stopped short of saying the machines are illegal.
Wimberly told Joven that rather than seizing the machines, OPD could probably just take the machines’ “motherboards” instead, but said district attorneys who have prosecuted game owners in the past could best answer that question.
“There haven’t been any prosecutions here. I sent this (opinion) to the DA without a response and so that’s why I went out of the county to get an opinion,” Joven said.
After the meeting, Joven said he didn’t ask Ector County District Attorney Dusty Gallivan for a response because he thought it best to seek the opinions of prosecutors who have been dealing with game room issues for awhile.
The council ultimately decided to table the matter so they could discuss it at next week’s work session.
Gallivan said he has not received anything from Joven. However, he said he believes it’s too premature to start seizing machines.
The Second Court of Appeals decision is a “great start” toward shutting down game rooms, but it does not set a precedent for Ector County, Gallivan said.
“It’s certainly helpful to move in that direction, but we’re not there yet,” Gallivan said.
In fact, the Seventh Court of Appeals in Amarillo ruled the exact opposite from the Second Court of Appeals in 2000 and while no one took that decision up to the Texas Supreme Court, Gallivan said he believes ultimately it will be the Texas Supreme Court that will settle the matter.
The Odessa City Council can do whatever it wants as far as amending its ordinances to further restrict the operations of the city’s game rooms, but the city might not want to start seizing machines, Gallivan said.
“I’d question whether those actions would be legally enforceable at this point in time,” he said. “(Joven) can seek all of the legal opinions he wants, but in Ector County, mine’s the only one that matters.”
Odessa Police Chief Mike Gerke said via email he’s asked the city’s legal team to look into the matter. Sheriff Mike Griffis said he is also waiting to hear from the county’s attorneys.
“This is an issue (that) should not be acted upon in haste. There are a few game rooms where the activities involve more than misdemeanor crimes, and these crimes are investigated promptly,” Griffis wrote via email.
On the financial side, Griffis said the intake from fees and permits are not enough to employ a designated officer or officer to address game room issues.
“If we did they would most likely be assigned to a patrol shift at least temporarily to take care of calls for service. We are 35-40% short on (law enforcement) officers now. We spend all our time responding to family violence, robberies, murders, and child abuse calls, etc…., all of which take precedence,” Griffis said. “The bottom line is, when we are advised by our attorneys that it is within our legal purview to go to every game room and start seizing machines, we will call in all of our people and pay them overtime to conduct an operation.”
Following the meeting, Joven said he personally paid an attorney who charges $600 an hour for his legal advice on game rooms and he agreed with his interpretation of the court’s opinion.
“There are 114,000 residents here and the majority of them want the proliferation stopped and that’s personal to me,” Joven said.
In other action, the council:
>> Unanimously voted to give all full-time city employees a 4% raise, plus a one-time payment of $1,750.
>> Unanimously agreed on public art work at Fire Station No. 6 ($67,000), the new animal control shelter ($80,000) and the Lee Street Building complex ( $20,000). The fire station piece is stained glass, the shelter piece is a metal sculpture of a dog and cat contained within a heart and the Lee Street piece is a postcard-like mural with a western theme that says “Howdy Y’all.”
>> Unanimously approved the purchase of new equipment for Fire Stations No. 6 and No. 9: 20 portable radios ($221,047), new bunker gear ($161,200), eight self-contained breathing apparatus ($221,047), an air compressor ($59,000) and six new specially equipped Chevy Tahoes ($423,907).
