The CCA, Judicial Activism, and Texas' Statutory Exclusionary Rule

One of my pet peeves with the Government-Always-Wins faction on the Texas Court of Criminal Appeals - which in this instance carried with it most of the rest of the court - arose in a recent ruling on the Fourth Amendment and Texas' statutory-based exclusionary rule: Bradley Ray McClintock vs. the State of Texas. To be clear, I am not a lawyer. But one needn't have earned a law degree to see that the GAW faction on the court clings to Texas statutes in the face of federal precedents whenever they're more likely to help the government, but then inexplicably grasps at federal justifications whenever they want to ignore the printed word of Texas statutes because they'd like this or that case to turn out differently (read: in favor of the government).

The ruling on Ex Parte Robbins - Texas' first-in-the-nation junk science writ - perhaps best exemplifies this trend toward using any means necessary to avoid relying on plain statutory language when the GAW faction thinks it will result in outcomes they don't like. But if you pay close attention, it happens all the time.

This outcome-oriented judging - the very definition of judicial activism - has plagued the court for years and was on full display this week. In the McClintock case, the CCA reviewed a lower appellate court ruling which held, relying on longstanding precedent, that evidence obtained without probable cause, even if a judge improperly issued a warrant, must be excluded. The CCA reversed the lower court, allowing evidence from the improper search to be used against the defendant.

Here's what you must know to fully grok this debate: Texas, in this area of the law as in much else, is different. At the federal level and in most states, the "exclusionary rule" - which allows evidence to be excluded if the state doesn't follow constitutional guidelines as articulated by the US Supreme Court - is a remedy created of, by and for judges in court rulings. It's modified by SCOTUS whenever they find it convenient, and mostly provides an excuse for federal judges to do whatever they want. Conservative critics of judicial activism have justifiably identified the federal exclusionary rule as an example of judges writing laws to empower themselves and the government instead of interpreting them to limit government power.

But in Texas, the Legislature enacted a statutory exclusionary rule in the 1920s which since then has withstood all manner of efforts to overturn it. Here, the exclusionary rule is not "judge-made law." It was written into statute by elected representatives and senators in plain language and baked into the DNA of the state's 20th century legal system.

This week, though, in McClintock, the Court of Criminal Appeals yielded state sovereignty on this question and diminished legislative authority in deference to federal judges' conception of the exclusionary rule, adding for Texas a new federal exception that has no basis in state law.

Alone in her dissent was Judge Elsa Alcala, apparently the last remaining judicial conservative on the court, if by that one means judges interpreting the words of the Legislature instead of casting about for justifications that support one's personal preferences for an outcome.

Alcala recognized that the lower court was correct in ruling that "the Texas good faith exception in Article 38.23(b) does not apply to this case." The majority opinion relied on a federal case (Davis) to apply a new, different, and more expansive definition of a good-faith exception than any Texas high court in nearly a hundred years has believed that our state statute allows.

The majority opinion (written by Judge Kevin Yeary, but joined by every other judge except David Newell, who did not participate) wondered instead whether the Legislature in 1925 might have meant by "probable cause" something "more than the common-place definition of the term," deciding that, in fact, the Lege had left sufficient leeway for the court to pretend it means whatever in Heaven's name they want it to mean in 2017. And he wanted to incorporate the broadened good-faith exception in Davis.

Alcala's complaint with Yeary and Co. was simple: "It is inappropriate to consider extra-textual sources to evaluate the meaning of the plain language in a statute that is not ambiguous." Bingo! That's certainly what the Government Always Wins faction would say if the textual argument swung their way. It's also what's been touted for five decades as the essence of conservative judicial philosophy, which the CCA majority has here abandoned.

The Court is supposed to go beyond the text of the statute for interpretation only when the language is ambiguous or would lead to absurd results, Judge Alcala observed. Citing to the Texas Constitution, she contended in contrast to the majority that, "Disallowing the results of searches of people's homes when there is no probable cause to support the search is not an absurd result, and, rather, it is the best way to ensure that people feel secure in their homes."

In the political realm, you hear conservatives complain bitterly about the federal, judge-made exclusionary rule. In some quarters, the issue has reached nearly Culture-War status. But at the Court of Criminal Appeals, the Government Always Wins faction loves the federal Exclusionary Rule, adopting every exception from it that they could remotely justify under Texas' more strict statutory language. The problem is, this most recent exception can't be squared with the text of the statute. You have to pretend that a case where the court already ruled probable cause did not exist can satisfy the requirements of a standard which mandates that it does. The black and white words on the page don't afford Texas state judges the wiggle room that federal judges have luxuriously allowed themselves.

Judge Alcala is fighting the good fight and at least demonstrating - if alone, and embattled - what it means for a state judge in Texas in the 21st century to retain a commitment to federalism, textualism, and to reject judicial activism. To her mind, "this Court has already held that there was no probable cause in this case under a correct application of the law in existence at the time of the search. In the absence of a warrant based on probable cause, the plain language of the statute precludes any consideration of whether the officer acted in good faith reliance on the warrant." It's that simple. But then you look at the outcome of the case, and obviously it is not.

Using similar methods under leadership of the Government Always Wins faction, the CCA over the years has muddied the waters surrounding Texas' statutory exclusionary rule to an enormous degree, allowing the ever-changing judge-created federal version to usurp our legislatively crafted one. Sadly, we just saw a 7-1 affirmation on the Court that this ignominious trend of judicial activism will continue forward into the future. And the only judge who seems committed to countering it has said she'll leave when her term ends in 2018.