St. Mary's Law Journal


In Heitman v. State, the Texas Court of Criminal Appeals appeared to break with the court’s prior holdings to announce it would no longer “automatically adopt and apply” to the search and seizure provisions of the Texas Constitution “the Supreme Court’s interpretations of the Fourth Amendment.” The reaction to Heitman was immediate and striking. Heitman is obviously a significant decision that could impact Texas criminal jurisprudence for decades. Yet, the decision left many questions unanswered, including whether the search and seizure provision should be construed as placing greater restrictions on law enforcement than the Fourth Amendment of the United States Constitution. The Heitman opinion reviews the established principle that “under our system of federalism … the state are free to reject federal holdings as long as state action does not fall below the minimum standards provided by federal constitutional protections.” The opinion then recognized the court had not chosen to interpret article I, section 9 of the Texas constitution in a manner, which accords the citizens of Texas greater protections than those in the Fourth Amendment. Historical evidence does not support the proposition that the Texas constitutional framers intended the search and seizure provision of its constitution to place more restrictions on law enforcement than does the Fourth Amendment. Even so, proponents of severing Texas’ jurisprudence from settled federal precedent assert they have found such evidence in the historical record. When one carefully scrutinizes the proposed resolution adopted by the court in Heitman, they receive a lesson in the art of biased advocacy aimed as justifying a preconceived view. Neither the proponents of such a view nor the Heitman opinion itself have considered some of the potentially dramatic consequences of overturning decades of settled precedent absent clear guidance from the text or history of the document itself.


St. Mary's University School of Law