City of Dallas v. Yarbrough
| Decision Date | 04 February 1966 |
| Docket Number | No. 16654,16654 |
| Citation | 399 S.W.2d 938 |
| Parties | CITY OF DALLAS et al., Appellants, v. Harry YARBROUGH, Appellee. |
| Court | Texas Court of Appeals |
N. Alex Bickley, City Atty., Ted P. MacMaster and Jack E. Walter, Asst. City Attys., Dallas, for appellants.
Burt Barr and O. H. Harris, Dallas, for appellee.
Pursuant to Article 636 of the Penal Code of the State of Texas police officers of the City of Dallas seized five pool tables and a number of billiard balls, cue sticks and other paraphernalia used for gaming purposes at premises occupied by Walnut Hill Billiard Cub, Inc., a pool hall much frequented by persons of 'teen age.
Thereafter Harry Yarbrough, appellee herein, filed suit against Walnut Hill Billiard Club, Inc. for debt represented by two notes in the total principal amount of $7,214, and for foreclosure of two chattel mortgage liens against twenty billiard tables and other property, including the property seized by the police. The City of Dallas was made a party because the seized property is in the possession of the City. The City filed a cross-action alleging that the property taken into the possession of the police is subject to seizure and destruction under Articles 636 and 637 of the Penal Code. The City and the Chief of Police, who entered an appearance in the case, prayed for an order for its destruction.
In a trial before the court without a jury the evidence was undisputed that the five billiard tables and other seized property were equipment of a gambling house and were being used for gaming purposes by Walnut Hill Billiard Club, Inc. and its customers. Nevertheless, the court not only rendered judgment in favor of appellee for debt in the principal amount of $7,214, but also rendered judgment foreclosing appellee's chattel mortgages against the property seized by the police. The court held that as a matter of law Articles 636 and 637 et seq. of the Penal Code will not allow destruction of the seized property as against a valid chattel mortgage. Therefore, judgment was rendered that the City take nothing by its cross-action and the City was ordered to turn the seized property over to appellee, the mortgagee.
Appellant City in its one point on appeal contends that the court erred in that a proceeding under Articles 636 et seq. of the Penal Code is an action is rem against the seized property, and is binding on all persons, including appellee in this case, no exception being made for a mortgagee holding a valid mortgage. We agree with appellant.
(1) Articles 636, 637 and 641 of the Penal Code make it the duty of every peace officer to seize all equipment and paraphernalia of gambling houses being used for gaming purposes; to submit a report to the proper magistrate; and to ask for a destruction order. The proceeding is one in rem against the property. State ex rel. Hightower v. Larimore, 156 Tex. 267, 295 S.W.2d 654; Williams v. State, Tex.Civ.App., 283 S.W.2d 444.
Article 638 of the Penal Code provides that any person having an interest in or entitled to possession of the seized property shall have the right at any time before the destruction to try the issue whether the property was used as equipment or paraphernalia of any gambling house. But Article 638 grants the right only as to the one issue. There is no provision granting to an interested party such an an innocent mortgagee the right to defend against the forefeiture by showing that he did not participate in the use of the property for gaming purposes and did not know that it was being so used.
(2) By specifying in Article 638 of the Penal Code only one defensive issue made available to parties claiming an interest in the seized property, the Legislature must have intended to exclude other defensive issues. The maxim expressio unius est exclusio alterius (the specification of one thing is exclusive of another) states a rule which is of long standing in this State, which has been pronounced a...
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