Texas: The Worst State for Superheroes?

We’ll admit that the title to this post is a little incendiary, and actually Texas has several features that recommend it to superheroes, particularly of the gun-wielding variety.  But we happened across a law that, especially in light of its history, might make a superhero think twice about moving to the Lone Star State.  That law is Texas Code § 38.23(a) (emphasis added):

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.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

“Or other person” is the clincher here.  Effectively, Texas applies the exclusionary rule to everyone, not just state actors, and it broadens it to cover not just Fourth Amendment-type privacy violations but violations of all state and federal laws and constitutional rights.  This means that, in Texas, it doesn’t matter whether Batman or other crime-fighting superheroes work with the police or not.  Heck, they can even be actively opposed by the police, à la the Punisher.  If they break the law while collecting evidence, that evidence is inadmissible.  In fact, if there’s even reasonable doubt that the evidence was obtained lawfully, that’s enough for the jury to disregard it.  Given how often superheroes break or at least bend the law, that’s a big problem.

The application of this law to superheroes is especially interesting in light of its history, summarized in Miles v. State, 241 S.W.3d 28, 34-35 (Tex. Ct. Crim. App. 2007) (emphasis added):

The Texas Legislature enacted an exclusionary rule broader than its federal counterpart precisely because of … the widespread problem of vigilante-type private citizens acting in concert with the police conducting illegal searches for whiskey.  Long before national Prohibition laws were enacted, Texas had created its own local-option liquor and prohibition laws.  Enforcement of these local-option laws led to the formation of various citizen groups, including the “Law and Order League,” whose members pledged to aid officers to enforce the laws, especially local-option laws, and to clean up their town and county of crime.   

Presumably, the Legislature foresaw that, if the exclusionary rule applied only to government officials or their agents, these “Law and Order League” members might well continue their illegal search-and-seizure operations without the participation or supervision of police officers.  Then these vigilante members would hand over the illegally seized evidence, on a “silver platter,” to government officers for use in criminal trials.  To avoid the prospect of implicitly encouraging or condoning vigilante action by these citizen groups, the Legislature applied its statutory exclusionary rule to both law-enforcement officers and private persons.

If you replace “Law and Order League” with “Justice League,” you can see just how closely that history fits many superhero stories.  If superheroes were common, many states would likely follow Texas’s example and pass similarly expansive exclusionary rule statutes.

We should note that there is a glimmer of hope.  With the responsibilities imposed by § 38.23 come additional privileges.  The Texas courts have held that “a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.”  Miles, 241 S.W.3d at 39.  Thus, a private person can invoke doctrines such as exigent circumstances and the reasonableness standard of the Fourth Amendment as a defense to, for example, violating traffic laws while pursuing a suspect in order to make a citizen’s arrest.  Id. at 45-46.  Nonetheless, the rule remains significantly stricter in Texas than in other states.  Maybe that’s why there are so few Texan superheroes.

As an historical side-note, there was a brief period in Montana history where the Montana Supreme Court held that the state Constitution extended the exclusionary rule to private citizens.  The rule was articulated in State v. Helfrich, 183 Mont. 484 (1979), affirmed in State v. Hyem, 193 Mont. 51 (1981), and finally overruled in State v. Long, 216 Mont. 65 (1985).  The rule was derived from the Montana Constitution’s affirmative right to privacy, which is unusual among state constitutions.  Extending the exclusionary rule to the acts of private citizens at the constitutional level is even more unusual, and Montana was the only state to ever take that approach.  As far as we can tell, Texas is the only state to do so by statute.

21 responses to “Texas: The Worst State for Superheroes?

  1. Very interesting. Although I doubt the law is the primary reason why Texas does not have many superheroes.

  2. Law and Order League? LOL!

  3. I was under the impression that fruit of the poisoned tree doctrine had gotten weaker in recent years, at least at the federal level. Is the Texan version more ironclad?

    • I couldn’t really say. I only just found out about the Texas exclusionary rule statute a week ago. But if there are any Texas attorneys who want to chime in, I’d be very interested in the answer myself.

      • Bennett Dodson

        Not an attorney (1L in Texas), but we did just discuss this matter in class. The FOPT doctrine is actually stronger (as in, more useful to defendants), in Texas. See State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996), Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992).
        Texas does not recognize the inevitable discovery doctrine, more or less because the words “inevitable” and “discovery” aren’t in 38.23(b). Since Texas has a statutorily created remedy, their reasoning goes, and not a judicially created one like the federal government, it is not permissible to infer more than what’s on the plain face of the statute. Even though subsection (b) looks to be more or less cut-and-pasted from Leon, and the timing of it’s enactment supports that.
        It does, however, recognize independent source and attenuation of the taint exceptions. Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013). Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App. 1994).
        Leon good-faith is discussed in Gordon v. State, but they basically refuse to apply anything but the “reliance in good faith upon an issued warrant” exception, and even then, probable cause is required to be present in the final analysis in the warrant. Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). They more or less deny the possibility of any other good faith exceptions applying, based on the nature of exclusionary remedy as a statutory one. Gordon , 801 S.W.2d 913.
        The real reason for this mismatched hash of exceptions, I’ve been told, has to do with the fact that even Texas’ highest state court is elected. In ’90 and ’92 when they discussed most of these exceptions, the court was ‘left-leaning’ and played dumb on the Leon implications of subsection (b) to give defendants a stronger remedy. By ’94 (and the Johnson decision) the court had swung to the right and was willing to weaken the doctrine. They were not, however, willing to go back and ‘fix’ Garcia.

      • Interesting! Thanks for the added context, Bennett.

  4. As you say as read this is very bad news for superheroes and would probably lead to more of the ‘beat them to a bloody pulp’ justice than the semi official stuff often portrayed.

    Couple of questions though you may have covered this in your earlier posts i need reminding.
    Firstly is there any leeway given on these tests for ignorance of the precise forms? Its reasonable to assume that a police officer knows correct procedures (regardless of whether its true you should be able to assume that) but would a member of public? if someone honestly thought they were doing it right (what do you mean, look at police squad thats definetly correct procedure man) would any intent be used in deciding whther to take it at face value?
    Secondly in this context would supers be better off or worse off attending court to answer procedural questions? to put it another way would evidence be more or less likely to be excluded if a guy in tights explains that he used his ‘fear of fate’ aura (or some other non physical coercive power) or if the guy just claimed that the reason he walked in and confessed was he wasw not in control of his faculties?

  5. Personally, I think that if superpowered individuals were commonplace, the best thing to do would be for the police to encourage them to join the department. It would clear up a lot of the “vigilante” problems, and presumably if metahumans are abundant, there’d be no great need to keep one’s powers a secret to avoid being dissected or something. (And as an earlier comment on this blog pointed out, making your powers public would probably be the best way to avoid unethical imprisonment/dissection because it would shine a light on the state’s activities.) Sure, the heroes/cops wouldn’t be free to act outside the “restrictions” of the law, but on the flipside it would improve their ability to get convictions rather than having their archfoes constantly get off due to lack of evidence or whatever.

    • I have often thought that myself while reading some of the comics. But sometimes, they do join. Most of the Watchmen were vigilantes, but The Comedian and Dr. Manhattan both got government backing. SHIELD regularly employs superhumans as agents in the Marvel Universe. Exactly which agency he works for changes a few times, but Captain America is almost always an overt government agent.

      Sometimes there is good reason for them not to join. At least in some versions, Gotham PD was described as corrupt and ineffective (at least at the time Batman was starting out), so Batman didn’t exactly see joining as an option. Similarly, the Punisher and Daredevil both took up their mantles specifically in response to what they saw as failings of the justice system. Of course, neither Batman nor Punisher are truly “super” and its easy to argue that their actions are the wrong response (especially in the Punisher’s case), but at least the question is addressed in a plausible way.

      Others are reluctant heroes. It varies somewhat by who is writing, but the X-men are often not portrayed as “superheroes” that seek out ways to help in the way that say Superman and Batman are. Rather, they are mutants looking out for their own good and for the good of Mutant-kind, but doing it with at least a sense of ethics. So, they might respond to help with an entirely-nonmutant crisis when one pops up in front of them, but for the most part they are concerned with helping mutants and mutant causes. Depending on both writer and specific character in question, many of them are mostly concerned with stopping threats like Magneto primarily as a way to keep normal law enforcement and governments out of mutant business, rather than out of any sense that it is the right thing to do or to help other people. Similarly, depending on the writer and timeframe, Ironman is often out for himself first, and when he is really being heroic it is often more in line with cleaning up messes he or his company made than helping people that got into trouble all on their own.

      But in a lot of cases, I agree that it just doesn’t make sense. Why doesn’t superman join the FBI or something like that? He could even keep the whole Clark Kent thing just as a way to have normal downtime, but he would get legal authority, an entire intelligence network to tell him where he could do the most good, a normal salary without the reporting nonsense (not that he seems to need it), and even government assistance in maintaining his cover. The same goes for a lot of others like Spiderman and the Fantastic Four (though the FF do operate openly with varying levels of government support and approval, so they come close).

      • When Peter Parker joined the Avengers he became a state actor. The Avengers are clearly state actors whether they are working with the U.S. government of the U.N.

      • I think it’s pretty much established that Superman likes being a reporter; it’s his chosen profession, it’s not just a cover identity. The original reason he was a reporter was so that he could know about crimes he can stop as Superman, but that’s just comics history by now.

      • The Comedian became a government assassin who is heavily implied to have killed JFK, former comrade Hooded Justice, Bob Woodward and Carl Bernstein. Dr. Manhattan was essentially a thinking strategic weapon. Most of the ‘heroes’ you see in DC or Marvel wouldn’t get along well with that. Some might, but most would quickly go AWOL. That is, assuming the writers can be bothered to remember the personalities of their characters and not write based on the writer’s personal politics.

  6. John J. Vecchione

    I think Texas does not have many superheroes because it has so much oil. I mean how many superheroes-particularly Marvel Superheroes-rely on radioactive mutation. Texas has so much oil it never went big for nuclear thus limiting the various one in a billion radioactive accidents that tend to create superheroes. Now Conneticut with lots of Nuclear Power and nuclear subs and the rest should be chock a block with them!

    Still, you’d think the Johnson Space Center would be having alien rocks, aliens, space mishaps and the like to make up for it.

    • A much more likely explanation is that most comic book authors live in New York or LA. Remember the Superman: Grounded storyline? The first issue is in Philadelphia. Okay. The next is in Detroit, a solid 600 miles away, and in the third, he heads back east to a small town in Ohio, suggesting that the writer’s grasp of the geography of the Great Lakes region is a little shaky. But in issue four, when Supes gets to Indiana, the writers actually make up a town entirely, because they either didn’t know or couldn’t be bothered to look up the names of any actual towns in the state.

    • Actually you get more than three times as much radiation exposure living near a coal-burning plant than a nuclear plant. Coal contains trace radioisotopes and coal-burning plants are constantly spewing vapors into the air, whereas nuclear plants are designed to minimize the release of radioactive material. Although the radiation exposure per year from either of those is a fraction of what you get per year from sitting in front of a computer screen.


      According to Marvel lore (at least as of the 1960s), mutants were created not by accidents at nuclear power plants, but by the fallout from the various aboveground nuclear weapons tests that were conducted over the previous decade or so. These days I think the role of radiation in prompting the rise of mutants has been downplayed, though.

      • James Pollock

        The Fantastic Four got their radiation dose from cosmic rays in space, Spider-Man got his from a science demonstration, and the Hulk got his in a bomb test. Daredevil’s resulted from a traffic accident.

        Magneto, of course, in his current retconned state, discovered his mutant powers before there were any bomb tests, aboveground or otherwise, and likewise the Inhumans have had their powers for a long time, certainly predating bomb testing (which wouldn’t have reached them in the Great Refuge, anyway.)

        So… I count one hero who got their radiation dose from above-ground bomb testing (plus at least one villain, the Sandman.)

  7. @James Pollock: I was speaking of mutants, i.e. characters born with superpowers, not characters like the FF, Hulk, and Spidey, who gained their powers in adolescence or adulthood. In early X-Men comics, mutants were referred to as “children of the atom” (a phrase employed by the villain in last year’s film X-Men First Class, whose plot is specifically rooted in the notion that radiation promotes the birth of mutants).

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  9. In that case, the police could just collect evidence at the scene of the crime and exclude any evidence provided by the hero/anti-villian/sloppy state actor in question. Given the amount of damage often seen at the site of a super battle, finding sufficient evidence should be an easy task.

    God help that villian if he/she is non-white or mentally disabled in Texas. They will hang no matter what the legality of the evidence.

    • “Given the amount of damage often seen at the site of a super battle, finding sufficient evidence should be an easy task”.

      Yes, but remember that what you need evidence of is the original crime the hero went there to stop or catch the bad guy for. Yeah, there’s lots of evidence lying around after a battle …. evidence of a battle.

      So Goblin commits a crime, Spiderman tracks him to his lair to stop him, swoops in and they fight. When all is said and done, there’s plenty of evidence of the fight. But the evidence of the original crime may be destroyed or legally compromised.

      • Given the Green Goblin is a wanted and extremely dangerous felon that shouldn’t be too much of a problem, regardless of what kind of crime. And given what type of crimes the Goblin is wont to commit there will probably be a lot of evidence. Like devastation and corpses. Not to mention most of his crimes are specifically targeting Spiderman anyway.

        Basically, if the villain is a wanted fugitive, then the hero shouldn’t really need any other reason to track him down and beat the crap out of him. If he happened to commit a crime beforehand and there is evidence of that; then hey, bonus.

        Also, odds are if Spiderman or any other hero prevented a crime then there was public evidence it was in progress in the first place. There are exceptions, of course, but in those cases the heroes will probably just settle for beating the hell out of the villain and dealing with them by themselves, if there is no solid evidence that the villain committed a crime. If the fight itself was the crime then, well, assuming Spiderman won, the Goblin still goes to jail and Spiderman gets a warrant for his arrest…but what else is new? Spidey is used to it.

        And if the hero was someone like Iron Man instead, whose identity is publicly known, then Iron Man will probably just explain why he deserved it. Odds are the law will side with the established superhero.

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