Case 3:99-cv-00320-KC Document 613 Filed 08/24/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
STATE OF TEXAS,
Plaintiff,
v.
YSLETA DEL SUR PUEBLO, TRIBAL
GOVERNOR CARLOS HISA, TRIBAL
LT. GOVERNOR CHRISTOPHER GOMEZ
AND TRIBAL COUNCIL MEMBERS
FRANCISCO GOMEZ, MICHAEL
SILVAS, RAFAEL GOMEZ, JR., AND
ROBERTO PEDRAZA, III,
Defendants.

No. 3:99-CV-00320-KC

PLAINTIFF TEXAS OPPOSED THIRD MOTION FOR CONTEMPT

AND MOTION FOR INJUNCTIVE RELIEF

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TO THE HONORABLE KATHLEEN CARDONE:

Plaintiff the State of Texas files this, its Third Motion for Contempt, 1 for violation of the
Courts September 27, 2001 Injunction (as modified by Order on May 17, 2002), 2 and further
moves for injunctive relief, and in support thereof, would respectfully show the Court the
following:
I. INTRODUCTION
Both this Court and the Fifth Circuit have consistently held that the Ysleta del Sur Pueblo
is governed by the Restoration Act, and not IGRA. The parties litigated this issue extensively, and
the Pueblos arguments that IGRA impliedly repealed the Restoration Act resoundingly failed. In
remarkable defiance of those rulings and this Courts permanent injunction prohibiting the Pueblo
from engaging in gambling activities that violate Texas law, the Pueblo are currently engaging in
various forms of bingoincluding fully automated electronic bingoprohibited in Texas. This
disregard of the Courts injunction has necessitated this Third Motion for Contempt.
II. PARTIES
Plaintiff is the STATE OF TEXAS represented by the Office of Attorney General.
Defendant YSLETA DEL SUR PUEBLO is a federally recognized Tribe pursuant to the
Restoration Act, 25 U.S.C. 1300g-1, and may be served with process by serving its attorney Mr.
Randolph H. Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W.,
Los Ranchos de Albuquerque, New Mexico 87107.

Plaintiff Texas Second Motion for Contempt was filed September 24, 2013, E.C.F. 356. It was
amended twice by Fourth and Fifth Amendments, but those amendments were amendments to the
Second Motion for Contempt related to sweepstakes activities. This Third Motion for Contempt
relates to electronic bingo and other forms of bingo being offered by the Pueblo Defendants.
2
Texas v. del Sur Pueblo, 220 F. Supp. 2d 668 (W.D. Tex. 2001), modified May 17, 2002.
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Defendant Tribal Governor CARLOS HISA is sued in both his official and individual
capacities and may be served with process by serving his attorney Mr. Randolph H. Barnhouse,
JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W., Los Ranchos de
Albuquerque, New Mexico 87107.
Defendant Tribal Lieutenant Governor CHRISTOPHER GOMEZ is sued in both his
official and individual capacities and may be served with process by serving his attorney Mr.
Randolph H. Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W.,
Los Ranchos de Albuquerque, New Mexico 87107.
Defendant Tribal Council Member FRANCISCO GOMEZ is sued in both his official and
individual capacities and may be served with process by serving his attorney Mr. Randolph H.
Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W., Los Ranchos
de Albuquerque, New Mexico 87107.
Defendant Tribal Council Member MICHAEL SILVAS is sued in both his official and
individual capacities and may be served with process by serving his attorney Mr. Randolph H.
Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W., Los Ranchos
de Albuquerque, New Mexico 87107.
Defendant Tribal Council Member RAFAEL GOMEZ, JR., is sued in both his official and
individual capacities and may be served with process by serving his attorney Mr. Randolph H.
Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W., Los Ranchos
de Albuquerque, New Mexico 87107.
Defendant Tribal Council Member ROBERTO PEDRAZA, III is sued in both his official
and individual capacities and may be served with process by serving his attorney Mr. Randolph H.

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Barnhouse, JOHNSON BARNHOUSE & KEEGAN, L.L.P., 7424 4th Street, N.W., Los Ranchos
de Albuquerque, New Mexico 87107.
III. THE LEGAL STANDARD
A movant in a civil contempt proceeding bears the burden of establishing by clear and
convincing evidence (1) that a court order was in effect, (2) that the order required certain conduct
by the respondent, and (3) that the respondent failed to comply with the courts order. Seven Arts
Pictures, Inc., v. Jonesfilm, 512 F. Appx 419, 422 (5th Cir. 2013).
Federal Rule of Civil Procedure 65(d)(2) makes clear that all entities, officers, agents,
employees and attorneys and persons acting in concert with the Ysleta del Sur Pueblo (collectively,
Pueblo Defendants) are bound by the injunction orders previously issued by the Court in this
cause.
Declaratory relief is available under the Declaratory Judgments Act to declare the rights
and other legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. 28 U.S.C. 2201(a). Moreover, [f]urther necessary or proper relief
based on a declaratory judgment or decree may be granted, after reasonable notice and hearing,
against any adverse party whose rights have been determined by such judgment. 28 U.S.C.
2202. This includes permanent injunctive relief, as sought here.
IV. PROCEDURAL HISTORY
The procedural history of this case is fully set out in this Courts Order in Texas v. Ysleta
del Sur Pueblo, 2015 WL 1003879, at *1-6 (W.D. Tex. Mar. 6, 2015).
Plaintiff Texas is authorized by Congress to sue for injunctive relief to enforce the
provisions of the Restoration Act, 25 U.S.C. 1300g-6(c).

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The Courts 2001 Permanent Injunction, modified by Order on May 17, 2002 provides:
ACTIVITIES ENJOINED
The persons and parties enjoined and listed as being subject of injunction are hereby
ORDERED to CEASE, DESIST, TERMINATE AND REFRAIN FROM engaging in,
permitting, promoting, and conducting activities at the Speaking Rock Casino in
violation of Chapter 47 of the Texas Penal Code, and 25 U.S.C. 1300g of the
Restoration Act, including but not limited to the following activities
A.

Gambling activities played with cards, dice, balls, or any other gambling
device where some, any or all of the persons and parties enjoined receive
an economic benefit . . .

B.

Gambling activities played with cards, dice, balls, or any other gambling
device some, any or all of the persons and parties enjoined charge any
monetary fee as a requirement for any person to . . . play any game played
with cards, dice, ball or any other gambling device . . . .

C.

Gambling activities played with cards, dice, balls, Keno tickets, bingo
cards, slot machines, or any other gambling device where some, any or all
of the persons and parties enjoined act directly or indirectly as the house
or banker in the same fashion as the operator of the gambling casino.

D.

Providing to any person for his/her use a slot machine, the operation of
which results in or is calculated to result in an economic benefit to the owner
or lessor of the slot machine.

E.

Conducting any gambling game from which any person or party enjoined
herein is likely to receive any economic benefit other than personal
winnings, including, but not limited to:
1. Bingo or any variation thereof;
2. Scratch tickets, peel tickets, or pull tabs;
5. Slot Machines;
6. Poker card games;

F.

Allowing other persons or entities to engage in any of the above activities

on the premises of the Speaking Rock Casino or anywhere upon the
reservation lands of the Ysleta del Sur Pueblo or upon any other lands of
said Tribe.

Texas v. del Sur Pueblo, 220 F. Supp. 2d 668, 70001 (W.D. Tex. 2002).

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V. TRANSITION TO IGRA 3 ELECTRONIC BINGO

According to a July 23, 2016 El Paso Times article, see Exhibit A, on information and
belief the Pueblo Defendants are transitioning to bingo and now offer:
A.

traditional bingo-hall games in which a worker pulls balls from a hopper while
players mark cards.

B.

bingo card minderselectronic devices that help players to track multiple

cards . . . and

C.

pull tabs, which are similar to lottery tickets.

This Courts May 27, 2016 Order required the Pueblo Defendants to cease their electronic
sweepstakes and their operation of gambling devices within sixty (60) days of the entry of this
Order and imposed monetary civil penalties on the Pueblo Defendants should they violate the
same. State of Texas v. Yselta del Sur Pueblo, 2016 WL 3039991, at *27 (W.D. Tex. May 27,
2016). On the sixtieth day following entry of the Order, Plaintiff Texas wrote to the Pueblo
Defendants counsel to inquire if they would honor this Courts May 27th Order by cessation of
all gambling activities, or, if they intended to continue those operations, to please explain by what
authority they would continue this operation.
After waiting six days, the Pueblo Defendants finally responded that they were in
compliance with this Courts Order 4 because of their narrow interpretation that the Order only
applied to their operation of donation based sweepstakes. The Pueblo Defendants forgot two key
facts. First, the Courts May 27th Order also prohibited the operation of gambling devices, 5 and
second, the Courts 2002 permanent injunction, which remains in effect, goes even further to track

Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 21.

The Pueblo Defendants did comply with the Order to the extent they closed Socorro
Entertainment Center, and according to the local news media, plan to re-purpose the facility as a
non-gambling enterprise.
5
See Order (E.C.F. 608 at pp. 51-53) 2016 WL 3039991 at *26.
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the federal Restoration Act by enjoining the Pueblo Defendants from . . . promoting, and
conducting activities at the Speaking Rock Casino in violation of Chapter 47 of the Texas Penal
Code, and 25 U.S.C. 1300g of the Restoration Act. del Sur Pueblo, 220 F. Supp. 2d at 700.
As recited both in the July 23, 2016 El Paso Times article and in the Pueblo Defendants
Reply In Support of Pueblo Defendants Motions to Vacate, E.C.F. 591 at pp. 7-8, the Pueblo
Defendants simply transitioned from operating gambling devices to conduct sweepstakes, to
operating gambling devices to conduct three forms of electronic bingo. The Pueblo Defendants
seek to convince this Court that they are permitted to engage in bingo activities because they are
governed by IGRA. This ignores that both this Court and the Fifth Circuit have already found that
the Restoration Act, 25 U.S.C. 1300g-6(c), and not IGRA, governs the Pueblo Defendants
gaming activities. 6 2016 WL 3039991, at *14 ([A]s the Fifth Circuit has stated, IGRA did not
repeal the Restoration Act, and the Restoration Actand not IGRAgoverns the determination
of whether gaming activities proposed by the Ysleta del Sur Pueblo are allowed under Texas law,
which functions as surrogate federal law. (quoting Ysleta del Sur Pueblo v. State of Tex., 36 F.3d
1325, 1335 (5th Cir. 1994))).
Thus, this Motion turns on the question of whether the Pueblo Defendants current bingo
operations violate Texas law. The payment of cash consideration into a game of chance which
produces cash prizes is an illegal lottery under Texas law. See TEX. PENAL CODE ANN. 47.01(7);
TEX. CONST. ART. III 47(a). Moreover, by operating of such electronic bingo as a lottery, the
Pueblo Defendants are gambling under Texas Penal Code 47.02; operating a gambling promotion
under Texas Penal Code 47.03(a)(1) and (a)(5); keeping a gambling place under Texas Penal

Plaintiffs do not waive the argument that, even if IGRA did apply, the Pueblo Defendants
activities amount to illegal Class III gaming thereunder. Given the express holdings of this Court
and the Fifth Circuit, however, Plaintiffs do not brief this argument here.
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Code 47.04(a); and possess gambling devices, equipment, or paraphernalia under Texas Penal
Code. 47.06(a) and (c), and/or under Texas Penal Code 47.06(a) (with respect to the servers
owned by the vendors, which are a subassembly or essential part of a gambling device.) Id.
In order to confirm the news media accounts of the Pueblo Defendants post-July 26th entry
into electronic bingo operations and the continued operation of prohibited electronic gambling
devices, Plaintiff Texas on August 2nd requested permission to conduct a pre-suit physical
inspection of the Pueblo Defendants Speaking Rock facility. In an email dated August 10, 2016
from Mr. Barnhouse, Defendants counsel, to Mr. Deane, Plaintiffs counsel, the Pueblo
Defendants refused that inspection request, thus making this litigation necessary, and requiring an
inspection be made pursuant to Federal Rule of Civil Procedure 34.
VI.

REMEDIES

As described above, the operation of both gambling devices and electronic bingo violate
State law prohibiting illegal lotteries, in addition to other gambling prohibitions found in chapter
47 of the Texas Penal Code. Under the Restoration Act, those provisions are federalized, and the
Pueblo Defendants are therefore engaged in violations of both Texas and federal law.
The Pueblo Defendants were enjoined on May 27, 2002 from conducting activities at the
Speaking Rock facility . . . in violation of Chapter 47 of the Texas Penal Code, and 25 U.S.C.
1300g of the Restoration Act and were specifically enjoined from:
A

. . . any other gambling device where . . . any . . . persons receive(s) an

economic benefit or . . . which require players to pay a monetary fee.

B.

Gambling activities played with any other gambling device (which) . . .

charge or collect . . . any monetary fee as a requirement for any person
to bet on or play.

C.

Gambling activities played with cards . . . bingo cards, slot machines, or

any other gambling device where . . . any . . . persons enjoined act
directly or indirectly as the house or banker in the same fashion as
the operator of the gambling casino.
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D.

Providing to any person for his/her use a slot machine, the operation of
which results in or is calculated to result in an economic benefit to the
owner or lessor of the slot machine.

E.

Conducting any gambling game from which any . . . party enjoined

herein is likely to receive any economic benefit other than personal
winnings, including, but not limited to:

F.

1.

Bingo or any variation thereof;

2.

Scratch tickets, peel tickets, or pull tabs;

5.

Slot Machines;

6.

Poker card games;

Allowing other persons or entities to engage in any of the above

activities on the premises of the Speaking Rock Casino . . .

del Sur Pueblo, 220 F. Supp. 2d at 70001.

Since the Pueblo Defendants were enjoined from these activities by the specific terms of
the 2002 permanent injunction, it is clear that they are currently operating in contempt of this
Courts permanent injunction. Movant Texas seeks an Order from this Court requiring the Pueblo
Defendants to permit a physical inspection of premises, and if gambling is confirmed by operation
of the games, to cease all gambling at Speaking Rock Entertainment Center, and to remove all
illegal gambling devices, and to provide for any further equitable relief to which it may show itself
entitled.
Moreover, a permanent injunction pursuant to both 28 U.S.C. 2202 and Federal Rule of
Civil Procedure 65 should be granted in this case following a hearing on this motion.

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PRAYER
The State of Texas moves the Court to issue a show cause order requiring the Pueblo
Defendants to appear and, following presentation of evidence, enter an Order
a.

holding the Pueblo Defendants in contempt of this Courts permanent injunction;

b.

ordering the removal of all gambling devices;

c.

ordering the payment of civil penalties from any day of operation beyond the date
of entry of the Contempt Order; and

d.

granting the State of Texas such further relief, including attorneys fees and costs,
and all equitable relief requested herein, to which this Plaintiff-Movant may be
entitled.

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Respectfully submitted.
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ William T. Deane
WILLIAM T. DEANE
Texas Bar No. 05692500
ANNE MARIE MACKIN
Texas Bar No. 24078898
MICHAEL R. ABRAMS
Texas Bar No. 24087072
Assistant Attorneys General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1534
FAX: (512) 320-0667
bill.deane@texasattorneygeneral.gov
anne.mackin@texasattorneygeneral.gov
michael.abrams@texasattorneygeneral.gov
ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF CONFERENCE
In accordance with Local Rule CV-7(i) I hereby certify that I conferred via email and left
detailed voice messages today with Dolph Barnhouse, Justin Solimon and Richard Bonner
regarding the matter that is the subject of this motion, and that over the past few weeks, we have
exchanged emails on our requested inspection and the need for more information on the electronic
bingo, and the fact the Tribe was to cease operating gambling devices sixty days after the last
Contempt finding. Moreover, attorney Andrew Webber purportedly representing the Tribe has had
detailed conversations with this Office concerning the need for this Third Contempt motion.

/s/ William T. Deane

WILLIAM T. DEANE
Assistant Attorney General

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served via
the Courts electronic notification system and via e-mail on this the 24th day of August, 2016 to:
Mr. Randolph H. Barnhouse
Mr. Justin Solimon
JOHNSON BARNHOUSE & KEEGAN, L.L.P.
7424 4th Street, N.W.
Los Ranchos De Albuquerque, New Mexico 87107
dbarnhouse@luebbenlaw.com
jsolimon@indiancountrylaw.com
Mr. Richard A. Bonner
KEMP SMITH
P.O. Box 2800
El Paso, Texas 79999
rbonner@kempsmith.com
ATTORNEYS FOR PUEBLO DEFENDANTS

/s/ William T. Deane

WILLIAM T. DEANE
Assistant Attorney General

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