Code of Criminal Procedure · Art. 38.23

Texas Exclusionary Rule

Evidence obtained in violation of the Constitution OR LAWS of the United States or Texas (including statutes) is inadmissible in any criminal case. Broader than the federal exclusionary rule and applies to private actors.

To prove this offense, the State must establish each of the following elements: Evidence obtained in violation of Constitution OR laws of US or Texas; Excluded in any criminal case; Applies to private actors as well as government; Limited 'good faith' exception (warrant-based, in art. 38.23(b)).

The base classification is Mandatory exclusion, with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

  • Evidence obtained in violation of Constitution OR laws of US or Texas
  • Excluded in any criminal case
  • Applies to private actors as well as government
  • Limited 'good faith' exception (warrant-based, in art. 38.23(b))
Texas Law — Charge Details
Exclusion of Evidence
Offense
Texas Exclusionary Rule
Statute
Tex. Code Crim. Proc. art. 38.23
Classification
Mandatory exclusion

Evidence obtained in violation of the Constitution OR LAWS of the United States or Texas (including statutes) is inadmissible in any criminal case. Broader than the federal exclusionary rule and applies to private actors.

Potential Penalty Enhancements
If this condition applies…Charge escalates toStatute
Officer in objective good-faith reliance on warrant from neutral magistrate, based on probable causeNarrow good-faith exception (admissible)§38.23(b)

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Worked examples

Worked example 1

Texas's exclusionary rule (Art. 38.23) is broader than the federal exclusionary rule because:

  1. It is identical to the federal rule
  2. It excludes evidence obtained in violation of the Constitution OR LAWS of the United States or Texas — including statutes — and applies to private actors as well as state actors Correct
  3. It applies only to felonies
  4. It only applies to confessions
Why: Art. 38.23 excludes evidence obtained in violation of any constitutional or statutory provision and reaches private persons, not just state actors. It is broader than the federal rule (which is constitutional and limited to government action).
Statute: Tex. Code Crim. Proc. art. 38.23
Worked example 2

Texas's good-faith exception under Art. 38.23(b) permits admission of evidence obtained:

  1. Anytime an officer thinks his actions were lawful
  2. Pursuant to a warrant issued by a neutral magistrate based on probable cause and that the officer reasonably believed to be valid — even if later determined defective Correct
  3. Through any private person's actions
  4. From a confession made without Miranda
Why: Texas's narrow good-faith exception applies only when officers acted in objective good-faith reliance on a warrant issued by a neutral magistrate based on probable cause. It does NOT extend (as the federal rule has) to other forms of police error.
Statute: Tex. Code Crim. Proc. art. 38.23(b)

Statutory definitions for this topic

Texas exclusionary rule (Art. 38.23) Tex. Code Crim. Proc. art. 38.23
Evidence obtained in violation of any provision of the Constitution OR LAWS of the United States or Texas (including statutes) is inadmissible in any criminal case. Broader than the federal exclusionary rule and applies to private actors as well as state actors. Narrow good-faith exception under (b).