Article 38.23 exclusionary rule — broader than the Fourth Amendment

What Art. 38.23 actually excludes

Article 38.23 of the Texas Code of Criminal Procedure excludes evidence obtained "in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America." The statutory language is categorically broader than the federal Fourth Amendment exclusionary rule, which excludes only evidence obtained in violation of the Fourth Amendment itself.¹

The breadth of the Texas rule rests on three statutory features. First, the rule covers violations of any law, not just constitutional law. Second, the rule covers violations of state law as well as federal law. Third, the good-faith exception at § 38.23(b) is narrower than the federal Leon exception.

Texas Court of Criminal Appeals authority over decades has reinforced the breadth of the rule and rejected attempts to import broader federal good-faith doctrines. The McClellan line and its progeny consistently treat the statutory text as controlling.

The Texas statutory rule predates the federal Mapp v. Ohio incorporation of the Fourth Amendment exclusionary rule against the states. Texas has had a statutory exclusionary rule since the 1925 codification. The longstanding Texas tradition of independent exclusionary doctrine is part of what supports the Court of Criminal Appeals' rejection of broader federal good-faith doctrine.

The breadth of the statutory rule also affects litigation strategy. In cases that could be charged either state or federal — possession-with-intent cases involving certain quantities, firearms-and-drugs cases, certain fraud cases — the suppression analysis differs substantially between the two forums. A motion that would lose under the federal Fourth Amendment may win under Art. 38.23. Forum selection becomes part of the case strategy.

What counts as a "violation" for Art. 38.23 purposes

Texas authority has expansively construed the universe of violations that trigger 38.23. Five categories are well-established:

• Constitutional violations (state and federal). Fourth Amendment violations, Fifth Amendment Miranda violations, Sixth Amendment counsel violations, and the parallel state constitutional violations all qualify.
• Statutory violations. Violations of state statutes — including Transportation Code provisions, Penal Code search-related provisions, and Code of Criminal Procedure provisions — qualify when an officer's conduct violates the statute.
• Administrative-rule violations. Departures from booking procedures, evidence-handling rules, and similar agency-level requirements have been found to trigger exclusion in some cases.
• Statutory-warning failures. DWI statutory warnings under Transportation Code §§ 724.011–.015 are mandatory; failure to give correct warnings can support exclusion of the resulting breath or blood sample.
• Privacy-act violations. Violations of statutory privacy protections (medical records, mental-health records, certain student records) can support exclusion when the evidence was obtained in violation of the relevant privacy statute.

A sixth category, less commonly discussed, involves violations of statutory privileges. Texas has detailed statutory privileges for attorney-client communications, doctor-patient communications, clergy-penitent communications, and journalist source materials. Evidence obtained through violation of one of these privileges can support exclusion under Art. 38.23 even where no constitutional violation occurred. Counsel handling cases that involve privileged sources should screen for the privilege issue.

The narrow Art. 38.23(b) good-faith exception

Subsection (b) creates an exception: evidence obtained by an officer acting in objective good-faith reliance upon a warrant issued by a neutral magistrate based on probable cause is not subject to exclusion. The exception is structurally narrower than the federal Leon doctrine in three respects:

1. Limited to warrants. The exception applies only to warrant-based searches. Warrantless searches that turn out to be unlawful cannot be saved by good faith under § 38.23(b).
2. Limited to magistrate-issued warrants. The warrant must be issued by a neutral magistrate. Search warrants issued by judges who are themselves involved in the prosecution's case (a rare circumstance) are outside the exception.
3. Limited to probable-cause warrants. The warrant must rest on probable cause. Warrants based on conclusory affidavits or boilerplate may fall outside the exception even if the executing officer acted in subjective good faith.

The federal Leon doctrine extends to good-faith mistakes about the law itself, to officer reliance on warrants later found defective for non-warrant reasons, and to other situations beyond the Texas exception. Texas authority has consistently rejected these federal expansions.

Texas vs. federal exclusionary doctrine — comparison

When the breadth of Art. 38.23 actually matters

The breadth of the Texas rule matters most in three case categories:

• Traffic-stop-statutory-violation cases. Texas Transportation Code violations are statutorily defined. An officer who initiates a stop based on conduct that does not actually violate the statute is conducting an unjustified stop. Suppression under 38.23 follows even if the officer's subjective belief in violation was reasonable.
• DWI breath/blood-test-warning cases. The statutory warnings under Transportation Code § 724 are detailed and prescriptive. Departures from the prescribed warnings can support exclusion of the resulting sample. Federal Fourth Amendment doctrine would not exclude in most of these cases.
• Mental-health and medical-records cases. Texas has specific statutes protecting mental-health and medical records. Law-enforcement access in violation of those statutes can support exclusion under 38.23 even where the federal Fourth Amendment would not.

Jury question vs. judge decision — when each applies

Texas suppression doctrine recognizes that some 38.23 issues are submitted to the jury rather than decided by the judge alone. The framework:

Pretrial judge decision. The default. The judge holds a pretrial suppression hearing, finds the facts, applies the law, and rules on the motion. The decision is reviewable on appeal under the abuse-of-discretion standard.

Jury-issue submission. Where there is a genuine factual dispute material to the lawfulness of the police conduct, and where the disputed fact was raised by the defendant, the issue is submitted to the jury under a jury charge instructing them to disregard evidence if they find the predicate violation occurred. The submission is governed by CCP Art. 38.23(a).

The jury-issue procedure is sometimes more favorable to the defense because it puts the suppression question to the jury at trial, with full development of the underlying facts. It is sometimes less favorable because the jury hears the contested evidence and then is asked to disregard it — a difficult cognitive task.

The choice between pretrial hearing and jury-issue submission is strategic. Counsel should evaluate the factual posture and the likely jury composition before choosing.

Scope of the exclusion remedy

A successful Art. 38.23 motion excludes the affected evidence and any derivative fruits. The scope of derivative-fruits exclusion is sometimes contested.

Direct fruits. Evidence obtained directly from the unlawful conduct — the seized contraband, the seized statement, the seized records — is excluded.

Derivative fruits. Evidence obtained as a downstream consequence of the unlawful conduct — a witness identified from a suppressed statement, additional contraband located from a suppressed clue — is generally excluded under the fruit-of-the-poisonous-tree doctrine.

Independent-source exception. If the State can show the evidence was obtained independently of the unlawful conduct, the evidence is admissible.

Inevitable-discovery exception. If the State can show the evidence would inevitably have been discovered through lawful means, the evidence is admissible.

Attenuation. If the connection between the unlawful conduct and the evidence is sufficiently attenuated, the evidence may be admissible. The Texas attenuation doctrine is broadly parallel to but distinct from the federal doctrine.

The exceptions are State arguments, not concessions. The State carries the burden on each exception. Counsel should anticipate each and brief the defense's position in advance.

Practical litigation of an Art. 38.23 motion

The motion identifies the specific violation and the evidence to be excluded. Counsel should structure the motion around the statutory or constitutional text and identify the specific law violated.

Evidence development at the suppression hearing focuses on three things:

1. The body-worn camera, dashboard camera, and any other video showing the officer's conduct
2. The written agency policy or statutory text defining the procedural obligation
3. Witness testimony, including officer cross-examination, establishing what actually happened

The hearing is typically a half-day to full-day proceeding. The court enters findings on the record and rules on the motion before trial. Adverse rulings are reviewed on appeal if a guilty verdict follows.

Next steps and the defense lawyer's role

The areas of Texas criminal practice that produce the most case-determinative outcomes are also the areas most likely to be misunderstood by defendants confronting them for the first time. The procedural cascade that begins with arrest and runs through magistration, bond, pretrial motions, plea negotiation, trial, sentencing, and post-conviction relief involves dozens of statutory provisions whose interactions cannot be navigated by reference to summary descriptions alone.

The defense lawyer's role is to map the procedural terrain in real time, identify the leverage points specific to the case, and convert the statutory framework into outcomes that protect the defendant's life, liberty, and long-term interests. The work is detail-intensive and time-sensitive. Counsel who treats the case as a routine application of a familiar pattern misses the leverage that the specific facts present.

For defendants and family members reading this article: the single most important decision in a criminal case is often the choice of counsel. The choice should be made with the same care as a major medical decision. The lawyer's experience in the specific area of practice, the lawyer's familiarity with the specific judges and prosecutors involved, the lawyer's capacity to dedicate the time the case requires, and the lawyer's communication style with the client all matter. A free consultation is the right first step. The consultation is also the lawyer's best opportunity to evaluate the case and to give the defendant and family a realistic understanding of the road ahead.

L and L Law Group, PLLC handles criminal-defense cases across the nine-county DFW region. We answer the phone 24 hours a day. Initial consultations are free and confidential. We do not require a retainer to discuss your case.