McClellan and Art. 38.23: why Texas rejected the federal Leon good-faith exception

What Article 38.23 actually says

Article 38.23 of the Texas Code of Criminal Procedure is the Texas statutory exclusionary rule. Subsection (a) states that "no evidence obtained by an officer or other person 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, shall be admitted in evidence against the accused on the trial of any criminal case." Subsection (b) creates a narrow good-faith exception: evidence obtained by an officer acting in objective good-faith reliance upon a warrant issued by a neutral magistrate based on probable cause.¹

This is a categorically broader exclusionary rule than the federal Fourth Amendment. Federal exclusion under Mapp v. Ohio, 367 U.S. 643 (1961) applies to constitutional violations only, and the federal good-faith exception under United States v. Leon, 468 U.S. 897 (1984) is broad, covering warrant defects, magistrate errors, and reasonable mistakes about the law.

Texas, by contrast, excludes evidence obtained in violation of any law — statutory, regulatory, constitutional — and the Art. 38.23(b) good-faith carve-out is much narrower than Leon. The Texas Court of Criminal Appeals has consistently held that 38.23 means what it says, and the McClellan line of cases is the touchstone.

The textual breadth of Art. 38.23(a) is unusual. Most state statutory exclusionary rules mirror the federal Fourth Amendment doctrine; Texas's statute is one of the few that exceeds the federal scope. The reasons for the breadth are partly historical (Texas's long suspicion of expansive police authority) and partly legislative (specific responses to specific search-and-seizure controversies).

The McClellan line and the Texas rejection of broader Leon

Texas courts have repeatedly held that the federal Leon good-faith exception is broader than what Art. 38.23(b) permits, and that the Texas statutory text controls in state-court prosecutions. The leading cases include the Court of Criminal Appeals' rejection of attorney-general arguments urging adoption of a broader good-faith exception.²

Three doctrinal points emerge from the case law:

• The warrant requirement under 38.23(b) is real. Officers relying on a warrantless seizure cannot invoke the good-faith exception even if their conduct was objectively reasonable. State v. Daugherty, 931 S.W.2d 268, 270–72 (Tex. Crim. App. 1996) (because Article 38.23 already contains one express exception — Subsection (b)'s warrant-good-faith provision — Texas courts cannot engraft additional exceptions by implication); Huff v. State, 467 S.W.3d 11, 21 (Tex. App.—San Antonio 2015, pet. ref'd) (directly applying Daugherty: where the officer did not obtain a warrant, the § 38.23(b) good-faith exception "does not apply"); McClintock v. State, 541 S.W.3d 63 (Tex. Crim. App. 2017); Wheeler v. State, 626 S.W.3d 856 (Tex. Crim. App. 2021) illustrates this restriction.
• Statutory and regulatory violations are exclusionary. An officer who violates a state-law statute (driver-license inspection rules, jail-booking procedures, certain administrative-search rules) can produce exclusion even if the conduct was constitutionally permissible.
• Officer mistakes of law are not excused. Where the federal courts have moved toward excusing reasonable mistakes about the law, Texas has held that 38.23 does not contain such an excuse.

The practical effect is that the Texas state-court suppression analysis is fundamentally different from the federal suppression analysis. Counsel must run both, especially in cases that could be charged either state or federal, because the available exclusion theory differs.

When to litigate Art. 38.23 in DFW courts

Three case categories produce the highest suppression yield under 38.23 in DFW state-court practice:

1. Traffic-stop cases. Texas Transportation Code violations (improper signal, no front plate, equipment violations) are statutorily defined; an officer who stops a driver for conduct that does not actually violate the statute is conducting an unjustified stop subject to 38.23 exclusion.
2. Jail-booking and inventory searches. Many DFW jails have written booking and inventory procedures. Departures from those procedures can support exclusion under 38.23 even where the search would survive Fourth Amendment review.
3. Statutory-warning cases. Statutory warnings for DWI breath/blood testing under Transportation Code §§ 724.011–.015 are mandated; failure to give correct warnings can support exclusion of the resulting sample under 38.23.

Preparing the Art. 38.23 suppression hearing

The hearing structure is straightforward, but the preparation is detail-intensive. The motion identifies the specific violation, the evidence to be excluded, and the controlling statute or constitutional provision. The State responds with the legal theory under which the evidence is admissible. The hearing focuses on the factual development of the officer's conduct.

Counsel should obtain three categories of evidence before the hearing: (1) the body-worn camera footage from the officer's perspective; (2) the dashboard or in-car camera footage from any responding unit; (3) the written agency policy on the relevant procedure (booking, inventory, traffic-stop authority).

The officer's testimony at the hearing is rarely the dispositive evidence — the video and the written policy usually control. Counsel should structure cross-examination around the policy text and the video timestamps, not around general questions about the officer's training and experience.

Remedies and the limits of 38.23

A successful 38.23 motion results in exclusion of the affected evidence and any derivative fruits. In many DWI and drug cases the excluded evidence is also the entire case — meaning the State cannot proceed and the case dismisses. In other cases the exclusion is partial: the field sobriety tests come out, but a subsequent breath test stays in, and the case proceeds on the remaining evidence.

Two limits matter. First, 38.23 exclusion does not apply when the violation is by a third party rather than a law-enforcement officer or person acting at the direction of law enforcement. Private-party evidence-gathering does not trigger the rule. Second, the State can argue that the violation was harmless or that the evidence would have been inevitably discovered through lawful means. Both arguments are fact-intensive.

Historical development of the Texas rejection of Leon

The Texas Court of Criminal Appeals' rejection of broader federal good-faith doctrine is a deliberate jurisprudential choice that has been reinforced over multiple decades. The doctrinal development can be summarized in three phases.

Phase one (post-Leon to mid-1990s). The federal Leon decision in 1984 created a broad good-faith exception to the federal exclusionary rule. Texas appellate courts initially worked through how the federal doctrine interacted with the Texas statutory rule. The Texas Legislature's 1987 amendment to Art. 38.23 codified the narrow good-faith carve-out at § 38.23(b).

Phase two (mid-1990s to 2010s). The Court of Criminal Appeals consolidated the doctrine. The statutory text was treated as controlling; the narrow Texas good-faith exception was repeatedly distinguished from the broader federal doctrine; attempts by the State to import federal exclusion-friendly authority were rejected.

Phase three (2010s to present). More recent federal decisions have expanded the federal good-faith doctrine to cover officer mistakes of law, reliance on overruled precedent, and similar circumstances. The Texas Court of Criminal Appeals has consistently held that these federal expansions do not affect the Texas statutory rule.

The cumulative effect is that the Texas state-court suppression doctrine remains structurally different from the federal Fourth Amendment doctrine. Counsel handling parallel state and federal cases on related facts must run both analyses.

Practical litigation checklist for Art. 38.23 motions

1. Identify the specific violation

The motion must identify the statute, regulation, or constitutional provision violated. Generic "Fourth Amendment violation" is insufficient. Pinpoint citation to the specific provision is required.

2. Identify the specific evidence to be excluded

Excluding "all evidence from the stop" without identifying the specific items leaves the court without a clear order to enter. Counsel should list specific evidence categories: field-sobriety results, breath sample, blood sample, statements, physical evidence.

3. Subpoena the video

Body-worn camera, dashboard camera, and any other video should be obtained well before the hearing. The video often controls the outcome more than testimony.

4. Subpoena the policy

If the violation is a policy or training violation, obtain the policy in effect on the date of the incident. The policy framework is essential to the analysis.

5. Prepare cross-examination from the policy and the video

The officer's testimony usually controls less than the documentary evidence. Cross should focus on what the policy required and what the video shows.

6. Brief the inevitable-discovery and attenuation issues in advance

The State will respond with these doctrines. Counsel should be prepared with citations and factual development.

What to do if you believe evidence in your case was unlawfully obtained

If you have a pending Texas state-court criminal case and you believe the evidence against you was obtained through an illegal stop, search, or interrogation, the suppression motion under Art. 38.23 is your principal tool. The motion must be filed before trial and litigated in a pretrial suppression hearing.

The window is short. Most courts require suppression motions to be filed at or before the omnibus hearing. The factual development the motion requires — obtaining video, getting the policy, deposing or cross-examining the officer — cannot be done in a week. Counsel should evaluate suppression theories within the first 30 days of the case to preserve the option.

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.