Texas Bill of Rights and Civil Liberties

THE TEXAS BILL OF RIGHTS AND CIVIL LIBERTIES

by James C. Harrington*

TABLE OF CONTENTS

I. INTRODUCTION ...... 1488 A. The Retreat in the Federal Courts ...... 1488 B. Emergence of State Court Protections ...... 1495 II. THE TEXAS BILL OF RIGHTS ...... 1498 A. HistoricalBackground ...... 1498 B. General Comparison with the Federal Bill of Rights .. 1500 C. Understanding the Meaning of the Texas Bill of R ights ...... 1503 III. EQUAL PROTECTION ...... 1506 A . Federal Analysis ...... 1506 1. Introduction ...... 1506 2. Historical Overview ...... 1507 3. Current Federal Doctrine ...... 1508 B. Texas Equal Protection Analysis ...... 1511 1. The Equality Under the Law Amendment ...... 1512 2. Texas Equal Protection ...... 1517 IV. SUBSTANTIVE AND PROCEDURAL DUE PROCESS ...... 1520 A. Open Courts Provision ...... 1520 1. R ight of R edress ...... 1521 2. D ue Process ...... 1524 B. Due Course of Law ...... 1525 C. Common Law Associational and Due Process Rights.. 1528 V. FREE SPEECH AND ASSEMBLY ...... 1530 A. Free Speech and Private Property ...... 1531 B . L ibel ...... 1532 C. Speech and Redress ...... 1534 D . Penum bra Rights ...... 1535

Legal Director, Texas Civil Liberties Union. Adjunct Professor of Law, The Univer- sity of Texas. B.A., Pontifical College Josephinum, 1968; M.A. (Philosophy), University of Detroit, 1970; J.D., University of Detroit, 1973.

1487 1488 TEXAS TECH LAW REVIEW [Vol. 17:1487

VI. CRIMINAL LAW AND PROCEDURE ...... 1536 A. Search and Seizure ...... 1539 B. Self-Incrim ination ...... 1543 C. Exclusionary Rule ...... 1544 D . Confrontation ...... 1544 E . Juries ...... 1546 F. Sum m ary ...... 1548 VII. CONCLUSION ...... 1548 A. A Word of Caution ...... 1548 B. Applying Nineteenth Century Language to Twentieth Century Facts ...... 1549 C. The Last Word ...... 1551 APPENDIX A. COMPARISON OF TEXAS BILL OF RIGHTS WITH FEDERAL CONSTITUTION AND BILL OF RIGHTS ...... 1553

By its decisions, [the United States Supreme Court] appears to be abdicating its position as the role maker and champion of individual rights. Judge Marvin 0. Teague Texas Court of Criminal Appeals'

I suggest it would be appropriate. . . for organizations dedi- cated to the improvement in the law and the administration of justice to consider the emerging role of state constitutions. Justice Stewart Pollock New Jersey Supreme Court2

I. INTRODUCTION A. The Retreat in the Federal Courts The last few years have witnessed the United States Supreme Court lead a marked retreat from protecting the individual freedoms and civil liberties so painstakenly crafted by decades of conscientious jurisprudence. What the Court under Chief Justice Warren Burger does not overrule overtly, it often takes away in bits and pieces by creating exceptions-to-the-rule and by expanding doctrines such as non-intent, immunity, and good faith.

1. Brown v. State, 657 S.W.2d 797, 808 (Tex. Crim. App. 1983) (en banc) (Teague, J., dissenting). 2. Pollock, State Constitutionsas Separate Sources of FundamentalRights, 35 RUTGERS L. REV. 707, 722 (1983). 19861 THE TEXAS BILL OF RIGHTS 1489

The high court has undermined affirmative action seniority plans3 and struck at the underpinnings of two pivotal touchstones of criminal procedure-the exclusionary rule4 and the Miranda warning. Under the exclusionary rule's new "inevitability" exception, for the first time since 1914,6 federal courts can use illegally obtained evidence so long as it "ultimately or inevitably would have been discov- ered by lawful means,"' an exception which subverts the rule's noble purpose of keeping the constable's conduct proper and legal. The Supreme Court justified cutting back the exclusionary rule on the premise that an injured individual can file a civil rights suit against the police for illegal search or unlawful conduct, even after being convicted.8 That, say the Justices, accomplishes the same deter- rence for which the exclusionary rule was designed. The argument is less compelling than it sounds. Although police can be sued, they escape judgment if they claim that they acted in "good faith"9 or were not trained to act in any other way.'0 In fact, the high court has removed "good faith" as a jury issue in federal civil rights law." This probably rewards police ignorance and incompetence, rather than encouraging professional- ism. If the officer has no personal resources and is "judgment proof," victims may sue a municipality;' 2 but they cannot claim punitive damages' 3 and can only win by proving systematic grossly negligent hiring

3. Firefighters Local Union No. 1784 v. Stotts, 104 S. Ct. 2576, 2581-90 (1984). 4. Nix v. Williams, 104 S. Ct. 2501, 2504-12 (1984). 5. New York v.Quarles, 104 S. Ct. 2626, 2629-34 (1984). 6. Weeks v. United States, 232 U.S. 383 (1914). 7. Nix v. Williams, 104 S. Ct. at 2509. 8. Id. at 2510; see Haring v. Prosise, 462 U.S. 306, 323 (1983); see also Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) (petitioner could recover money damages for any injury received because of federal agents' violation of fourth amendment); Monroe v. Pape, 365 U.S. 167, 171 (1961) (Congress intended to give parties who were deprived of constitutional rights a remedy against official who abused his position). 9. Mitchell v. Forsyth, 105 S. Ct. 2806, 2814 (1985) (Attorney General's unconstitutional authorization of warrantless domestic security wiretap); Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982) (retaliatory firing of "whistle-blower" from Air Force); see Saldana v. Garza, 684 F.2d 1159 (5th Cir. 1982) (arrest on private property for disorderly conduct), cert. denied, 460 U.S. 1170 (1983). 10. See Garris v. Rowland, 678 F.2d 1264, 1271-72 (5th Cir. 1982). 11. Harlow, 457 U.S. at 818; Saldana, 684 F.2d at 1164; see Elliott v. Perez, 751 F.2d 1472, 1476-82 (5th Cir. 1985). 12. Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978). 13. Owen v. City of Independence, 445 U.S. 622, 657 (1980). 1490 TEXAS TECH LAW REVIEW [Vol. 17:1487

or training,' 4 a deliberate pattern of police misconduct, 5 or a similarly difficult theory.' 6 How many juries or judges will be sympa- thetic to a convicted person's claim against the police? Thus, a victim of excessive police force may well have a right without a remedy. The officer is immunized by "good faith," and the city is shielded because the beatings did not happen often enough. A veritable catch-22. If a person somehow jumps all the hurdles, for what relief? For a "technical" violation (such as a wrongful search), the award is nominal damages, maybe only one dollar,'" even though the citizen ends up in jail for a year because of the illegal police activity. It is rather naive to see this new approach as really deterring unlawful police conduct. Indeed, its effect may be the opposite. Just as distressing has been the restructuring of Miranda, which was fashioned to prevent "the dangers of interrogation."'" Besides now allowing the subsequent rehabilitation of an unwarned confes- sion,' 9 the Court has created a "public safety" exception which allows the use of a statement from a suspect without a self-incrimination warning if it was taken in the context of public safety;2" and "the availability of [the] exception does not depend [on] the motivation of the individual officers involved."'" That sounds logical, but look at the facts. Before the defendant Benjamin Quarles was interrogated and his statements used to discover evidence to convict him, the police had already handcuffed him, unarmed, in the back of a virtually empty Queens, New York supermarket in the middle of the night, and had holstered their guns. Such a comprehensive exception vitiates Miranda's force.

14. Hirst v. Gertzen, 676 F.2d 1252, 1262-63 (9th Cir. 1982); Chestnut v. City of Quincy, 513 F.2d 91, 92 (5th Cir. 1975). 15. Webster v. City of Houston, 689 F.2d 1220, 1226-27 (5th Cir. 1982); see Rizzo v. Goode, 423 U.S. 362, 371-75 (1976). 16. Oklahoma City v. Tuttle, 105 S. Ct. 2427, 2432-37 (1985) (a single incident wrongful killing by an officer could not itself be city's "policy or practice" of inadequate training under 42 U.S.C. § 1983, setting aside $1.5 million judgment for victim's widow); see also Brandon v. Holt, 105 S. Ct. 873, 878-79 (1985) (city liable for § 1983 judgment against police department director for retention of police officer with history of violent behavior); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983) (city not liable for partial paralysis from negligent police shooting), cert. denied, 104 S. Ct. 2656 (1984). 17. Carey v. Piphus, 435 U.S. 247, 266-67 (1978). 18. Miranda v. Arizona, 384 U.S. 436, 463 (1966). 19. Oregon v. Elstad, 105 S. Ct. 1285, 1298 (1985). 20. New York v. Quarles, 104 S. Ct. at 2632. 21. Id. 1986] THE TEXAS BILL OF RIGHTS 1491

In addition, students are now subject to in-school searches under the diluted "reasonable suspicion" test;22 motor homes may be searched without warrant under the "automobile exception"; 23 and wholesale factory raids by the Border Patrol are now permitted. 4 Officers still cannot force someone to a police station for finger- prints without probable cause to suspect involvement in a crime; 25 but they may conduct an investigatory stop with "reasonable suspicion" that the person had earlier been involved in a crime;26 and they may detain a citizen without probable cause long enough to "diligently pursue" an investigation likely to confirm or dispel their suspicions- perhaps as long as twenty minutes.27 Nor has the Court lessened its insensitivity to poor persons caught in the bureaucratic maze, upholding a 1864 federal law that effectively prevents veterans from hiring lawyers ($10 limit on attorney fees) to win disability benefits from the Veteran's Administra- tion,2" tolerating incomprehensible notices of Food Stamp reductions to recipients, 29 narrowly interpreting the antidiscrimination provisions of the 1973 Rehabilitation Act, 30 and limiting attorney fees for administrative-level assistance.' Despite his well-publicized calls for prison reform, Chief Justice Burger continues to join the other Justices in undermining inmates' rights, upholding, for example, a warden's refusal to give reasons for denying a prisoner the right to call witnesses at a disciplinary

22. New Jersey v. T.L.O., 105 S. Ct. 733, 743-44 (1985). 23. California v. Carney, 105 S. Ct. 2066, 2070-71 (1985). 24. Immigration & Naturalization Serv. v. Delgado, 104 S. Ct. 1758, 1763-64 (1984). 25. Hayes v. Florida, 105 S. Ct. 1643, 1646-47 (1985). 26. United States v. Hensley, 105 S. Ct. 675, 682-83 (1985) (investigative stop by police reliance on "wanted flyer" issued by another department). 27. United States v. Sharpe, 105 S. Ct. 1568, 1576 (1985) (20-minute investigative detention of suspected marijuana seller). 28. Walters v. National Ass'n of Radiation Survivors, 105 S. Ct. 3180, 3182 (1985); see 38 U.S.C. § 3404(c) (1982). 29. Atkins v. Parker, 105 S. Ct. 2520, 2530-31 (1985) (notice advising of general change in benefits law without explaining effect on individual recipients). 30. Alexander v. Choate, 105 S. Ct. 712, 715-25 (1985) (effect on handicapped by state's reduction in annual in-patient coverage not cognizable under 28 U.S.C. § 794); Atascadero State Hosp. v. Scanlon, 105 S. Ct. 3142, 3149 (1985) (eleventh amendment blocks suit for monetary relief under 1973 Rehabilitation act, 28 U.S.C. § 794 (1982)). 31. Webb v. Dyer County Bd. of Educ., 105 S. Ct. 1923, 1928-29 (1985) (attorney fees under 42 U.S.C. § 1988 not available for time spent pursuing optional administrative proceedings prior to filing 42 U.S.C. § 1983 action); cf Marek v. Chesney, 105 S. Ct. 3012, 3018 (1985) (no § 1988 fees for work subsequent to offer under Federal Rule of Civil Procedure 68 if recovery is less than the offer). 1492 TEXAS TECH LAW REVIEW [Vol. 17:1487 hearing. 32 The Court declines to interfere with execution after execution, even in cases raising serious doubts about procedural fairness and ju- 33 ries in capital trials. The first amendment arena has seen a similarly alarming ten- dency to uphold restrictions on free speech and the free press. Petitioning for redress of grievances does not provide absolute libel immunity to write the President and complain about public officials.34 The federal government may selectively prosecute "vocal" non-registrants for the draft who send letters to the President or otherwise bring themselves to the attention of officials;3 5 and military bases can ban distribution of political literature during an "open house" for the public36 (although lawyers can still strongly criticize court administrative operations with impunity).37 In one of its biggest shifts, the Supreme Court decided that the first amendment does not insulate a whole category of speech, af- firming a $350,000 award of "presumed" and punitive damages against Dun and Bradstreet for falsely publishing that a company had filed for bankruptcy.38 Thus, speech which is not a matter of "public concern" will no longer be covered by the traditional "public figure" or "public official" protections.39 States will be free in cases falling in this new third class to return to the common law of libel without showing at least negligence on the part of the publisher and where "innocent mistake" is not a defense. Under the new rule, libel plaintiffs can win money judgments without proof of actual damages ("presumed damages") and punitive damages without showing "actual malice."' The one bright light has been the Court's refusal to lower the

32. Ponte v. Real, 105 S.Ct. 2192, 2196-97 (1985); cf Black v. Romano, 105 S.Ct. 2254, 2257 (1985) (court revoking probation not required to reflect on record its considerations and rejection of alternatives to incarceration). 33. See Wainwright v. Witt, 105 S.Ct. 844, 852-53 (1985) (exclusion of prospective juror in capital case because of views on death penalty). 34. McDonald v. Smith, 105 S. Ct. 2787, 2790-91 (1985). 35. Wayte v. United States, 105 S. Ct. 1524, 1533-34 (1985). 36. United States v. Albertini, 105 S.Ct. 2897, 2905 (1985) (person attending open house nine years after base commander ordered him not to re-enter without written permission). 37. In re Snyder, 105 S. Ct. 2874, 2882 (1985) (letter to clerk criticizing federal court's payment procedures for appointed counsel). 38. Dun & Bradstreet v. Greenmoss Builders, 105 S. Ct. 2939, 2942 (1985). 39. Id. at 2944-48. 40. Id. at 2947-48. 1986] THE TEXAS BILL OF RIGHTS 1493

wall of separation between church and state. In four historic cases, the Justices outlawed officially sponsored silent prayer in public schools,4 1 banned publicly paid teachers from conducting "shared time" programs, supplemental classes,42 and remedial classes43 in parochial schools, and ruled that employers need only reasonably ac- commodate their workers' desire to have their own particular Sabbath off each week.' But even those victories are dimmed by the fact that a shift of one vote would imperil the church-state school decisions, a chilling proposition given that five members of the Court are seventy-six years or older, one of whom is Justice Lewis Powell, who voted in the majority on the cases and rejected Justice William Rehnquist's revisionist view that the establishment clause was really designed to prevent discrimination among religions rather than protecting against the state advancement of religion.45 Consider also other earlier decisions allowing discreet class bias against farm workers,46 upholding discriminatory school financing,47 and so on. Not too long ago, the federal courts beckoned the aggrieved, the poor, and racial and ethnic minorities to redress the years of wrongs which they had suffered. These days, the heavy doors of the United States courthouse are being pushed closed by newly devised and nearly impossible procedural requirements. One such burdensome hurdle is standing. Inner-city blacks lack

41. Wallace v. Jaifree, 105 S. Ct. 2479, 2486 (1985) (moment of silence for "meditation or voluntary" prayers). 42. Grand Rapids School Dist. v. Ball, 105 S. Ct. 3216, 3221 (1985) (leased classrooms in religious schools). 43. Aguilar v. Felton, 105 S. Ct. 3232, 3236 (1985) (remedial instruction and guidance services on parochial school premises). 44. Estate of Thornton v. Caldor, Inc., 105 S. Ct. 2914, 2917 (1985) (Connecticut law giving absolute unqualified right not to work on Sabbath violates first amendment establishment clause). 45. See Wallace v. Jaffree, 105 S. Ct. at 2493-96 (Powell, J.), 2508-16 (Rehnquist, J., dissenting). 46. Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), (upheld exclusion of farm workers from New York's worker compensation law), affd, 478 F.2d 537 (2d Cir.), cert. denied, 414 U.S. 1096 (1973); see Romero v. Hodgson, 319 F. Supp. 1201 (N.D. Cal. 1970) (even though lower court ruled "with considerable hesitation" after voicing concern for the plight of farm workers, upholding less-than-equal treatment of farm workers under the federal Unem- ployment Compensation Act), affd ,nem. 403 U.S. 901 (1971); cf Middleton v. Texas Power & Light, 108 Tex. 96, 185 S.W. 556 (1916) (workers' compensation does not apply to farm laborers), affd, 249 U.S. 152 (1919). 47. San Antonio Indep. School Dist. v. Rodriquez, 411 U.S. 1 (1973). 1494 TEXAS TECH LAW REVIEW [Vol. 17:1487 standing to challenge exclusionary zoning;4" black parents cannot sue to block tax benefits to segregated private schools; 49 poor people have no standing to challenge illegal tax breaks to hospitals which refuse to serve the poor;5" and victims of excessive police chokeholds without a particularized reason to fear future stranglings have no claim to an injunction." Affirmative action plaintiffs must now show individual harm to themselves to win-not just prove that their class has historically suffered bias for years, which, in turn, created a seniority system prohibiting meaningful job opportunities. 2 To be sure, civil liberties have not been set back totally. Wo- men's rights have fared comparatively well, although the Justices refuse to subject sex discrimination to strict scrutiny. Disability benefits can be denied because of pregnancy, 3 but not because of race or national origin-a decision which argues for a federal equal rights amendment. 4 And indigent defendants were assured the assistance of court-appointed psychiatrists in an insanity defense55 and of effec- tive counsel on their first appeal.56 Overall, though, the past few years have been dark for civil liberties and rights advocates. Ironically, this Court is often depicted as conservative or strict constructionist; but that view is difficult to reconcile with its consis- tent rulings in favor of big government and for expanded police powers-almost oblivious to the genius of the Bill of Rights of tying the hands of government when need be in order to zealously guard the rights and liberties of the people. Nor does the future augur anything but further trimming of individual liberties and freedoms. The United States Supreme Court sets the standards for the twelve courts of appeals and the nearly 750 federal district benches which yearly resolve some 31,000 and 300,000 cases respectively. Given its present rate of appointments, by the end of its second term, the Reagan Administration will have named about

48. Warth v. Seldin, 422 U.S. 490 (1975). 49. Allen v. Wright, 104 S. Ct. 3315 (1984). 50. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). 51. City of Los Angeles v. Lyons, 461 U.S. 95 (1983). 52. Stotts, 104 S. Ct. at 2588. 53. Geduldig v. Aiello, 417 U.S. 484 (1974). 54. As approved by Congress in 1972 and submitted to the states for ratification (which failed on June 30, 1982), the equal rights amendment to the United States Constitution would have provided: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." 55. Ake v. Oklahoma, 105 S. Ct. 1087 (1985). 56. Evitts v. Lucey, 105 S. Ct. 830 (1985). 1986] THE TEXAS BILL OF RIGHTS 1495

400 of the active district judges (fifty-four percent of all judges)- more than any other President in history.57

B. Emergence of State Court Protections However, welcome relief is coming from lesser expected quarters-the state courts. Hand-in-hand with the federal retreat, state judges are taking up the mantle and more closely examining their own state Bill of Rights guarantees, which, on their face, are generally more expansive and solicitous of people's liberties than the federal Bill of Rights. The reliance on state constitutions to protect freedoms not reached by the United States Supreme Court has been dubbed the "New Federalism."58 Already, the Supreme Courts of Connecticut,59 Arkansas,60 Utah,6' West Virginia,62 New Jersey,65 Hawaii,64 Alaska,65 South Da-

57. Schwartz, Reagan Packs the Federal Judiciary, 240 THE NATION, May 4, 1985, at 513; Reagan Could Appoint Half of FederalJudges By End of Second Term, but It Won't Be Easy, Wall St. J., Oct. 21, 1985, at 52. 58. See Abrahamson, Reincarnation of State Courts, 36 Sw. L.J. 951 (1982); Country- man, Why a State Bill of Rights?, 45 WASH. L. REv. 454 (1970); see also Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977); Daughtrey, State Court Activism and Other Symptoms of the New Federalism, 45 TENN. L. REV. 731 (1978); Linde, First Things First: Rediscovering the States' Bill of Rights, 9 U. BALT. L. REV. 379 (1980); Mosk, Contemporary Federalism, 9 PAC. L.J. 711 (1978); Sheran, State Courts and Federalism in the 1980's. Comment, 22 WM. & MARY L. REV. 789 (1981); Note, Independent Interpretation: California's Declaration of Rights or Declaration of Indepen- dence?, 21 SANTA CLARA L. REV. 199 (1981); Project Report: Toward an Activist Role for State Bills of Rights, 8 HARV. C.R.-C.L.L. REV. 271 (1973). 59. E.g., State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985) (search and seizure); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1983) (school financing). 60. E.g., Dupree v. Alma School Dist., 279 Ark. 340, 651 S.W.2d 90 (1983) (school financing). 61. E.g., Malan v. Lewis, 693 P.2d 661 (Utah 1984) (guest statute); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984) (press access to criminal preliminary hearings); Cox v. Cox, 532 P.2d 994 (Utah 1975) (state ERA and child custody). 62. E.g., Turner v. Jones, 330 S.E.2d 323 (W. Va. 1985) (paternity limitations and due process); Woodruff v.Board of Trustees, 319 S.E.2d 372 (W. Va. 1984) (right of public employees to distribute leaflets); State v. Bonham, 317 S.E.2d 501 (W. Va. 1984) (due process); Cooper v. Gwinn, 298 S.E.2d 781 (W. Va. 1981) (prisoner rights); State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544 (W. Va. 1980) (press access to court proceedings). 63. E.g., State v. Schmid, 84 N.J. 535, -, 423 A.2d 615, 628 (1980) (due process), appeal dismissed sub. nom Princeton Univ. v. Schmid, 455 U.S. 100 (1982); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 389 A.2d 465 (1978) (sex and employment discrimination). 64. E.g., State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971) (prior convictions to impeach testimony of criminal defendant). 65. E.g., Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264 (Alaska 1984) (worker compensation and right to travel); Blue v. State, 558 P.2d 636 (Alaska 1977) (right to counsel and confrontation); McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975) (prisoners' rights); Ravin v. 1496 TEXAS TECH LAW REVIEW [Vol. 17:1487

kota,66 Washington,67 Arizona,68 Oregon,69 Wisconsin,7° California,71 Michigan,72 and New Hampshire,73 to name a few, have gone beyond the United States Supreme Court in conferring rights on their citizens under their own state charters. Perhaps, the Supreme Court of Vermont has summarized it best recently, exhorting the bench and bar to raise their "consciousness" "about the resurgence of federalism that is sweeping the country" and pointing out that, since 1970, "there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Con- stitution as interpreted by the U.S. Supreme Court. '74 Only when one understands that those 250 cases functionally reversed the United States Supreme Court is the depth of the movement appreciated.

State, 537 P.2d 494 (Alaska 1975) (privacy and marijuana in home); Breese v. Smith, 501 P.2d 159 (Alaska 1972) (student hair length); cf also infra note 322 and accompanying text; Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) (right to jury trial for petty offenses). 66. Eg., Elbe v. Yankton Indep. School Dist., 372 N.W.2d 113 (S.D. 1985) (religious establishment); State v. Neville, 346 N.W.2d 425 (S.D. 1984); State v. Opperman, 247 N.W.2d 673 (S.D. 1976) (search of closed automobile console); State v. Opperman, 247 N.W.2d 673 (S.D. 1976) (search of closed automobile console); cf. Note, Beyond the Establishment Clause: Enforcing Separation of Church and State through State Constitutional Provisions, 71 VA. L. REV. 625 (1985). 67. E.g., State v. Coe, 101 Wash. 2d 364, 679 P.2d 353 (1984) (right to broadcast court evidence); State v. Ringer, 100 Wash. 2d 686, 674 P.2d 1240 (1983) (search warrants); Alder- wood Assoc. v. Washington Envtl. Council, 96 Wash. 2d 230, 635 P.2d 108 (1981) (access to private shopping centers); cf infra note 322 and accompanying text. 68. E.g., Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280 (1984) (limitations and medical malpractice); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984) (en banc) (double jeopardy). 69. E.g., State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980) (disorderly statute and overbreadth); State v. Blair, 287 Or. 519, 601 P.2d 766 (1979) (vagueness doctrine and speech); cf State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (double jeopardy). 70. E.g., State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984) (legislative immunity). 71. E.g., Robins v. PruneYard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979) (access to private shopping center), affd, 447 U.S. 74 (1980); People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978) (barring discriminatory use of peremptory challenges). 72. E.g., Charter Township of Delta v. Dinoflo, 419 Mich. 253, 351 N.W.2d 831 (1984) (zoning and due process); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975) (search and seizure). 73. E.g., State v. Koppel, No. 85-006, N.H. Sup. Ct. (Aug. 16, 1985) (banning genera- lized roadblocks to apprehend alcohol-impaired drivers); cf.State v. Severance, 168 N.H. 404, 237 A.2d 683 (1968) (banning roadblocks for license checks). 74. State v. Jewett, - Vt. -, 500 A.2d 233, 234 (1985) (citing R. COLLINS, RELIANCE ON STATE CONSTITUTIONS: SOME RANDOM THOUGHTS IN DEVELOPMENTS IN STATE CON- STITUTIONAL LAW (B. McGraw ed. 1985).) 19861 THE TEXAS BILL OF RIGHTS 1497

Indeed, the Vermont court was so impressed by the potential of state constitutional protection that it referred to the now famous statement of Oregon Supreme Court Justice Hans Linde, a recognized pioneer of states' Bill of Rights, that "a lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating at 75 the edge of malpractice. Texas courts also are increasingly aware that the federal Consti- tution is not the sole guarantor of the people's freedom and that they are "at the creation" of Texas constitutional law. In 1969, the Texas Court of Criminal Appeals wrote: "While federal constitutional safeguards applicable to the states do establish a minimum standard for state courts, such courts are not limited to those standards in construction of federal or state rights. They may 76 go further and provide greater safeguards." Judge Truman Roberts of the Texas Criminal Appeals Court, commenting on the freedom of individual states "to establish laws that afford greater protections than the minimum requirements of the federal constitution," pointed out that "Texas has exercised this free- 7 7 dom more than once in its constitution and laws." Indeed, long before the "new federalism" became evident, the Texas Supreme Court interpreted this state's constitution as affording protection beyond that required by the United States Supreme Court.7" However, for a host of historical reasons, Texas judges never embarked on a concerted effort to develop a systematic body of state constitutional jurisprudence. Often, the combination of an active federal judiciary and a deferential, conservative state bench (eagerly so on civil rights issues) meant more attention to federal rights than development of the state Bill of Rights, a phenomenon compounded by law schools' emphasis on federal rights. This produces "a litany of federal buzz words memorized like baseball cards," without foundation in state constitutional theory.79

75. Id. (citing Welsh & Collins, Taking State Constitutions Seriously, 14 THE CENTER MAG. 6, 12 (Sept./Oct. 1981)). 76. Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969). 77. Gillett v. State, 588 S.W.2d 361, 367 (Tex. Crim. App. 1979) (Roberts, J., joined by Phillips & Clinton, JJ., dissenting). 78. Travelers' Ins. Co. v. Marshall, 124 Tex. 45, 53-54, 76 S.W.2d 1007, 1010-11 (1934). 79. Jewett, - Vt. at -, 500 A.2d at 235. 1498 TEXAS TECH LAW REVIEW [Vol. 17:1487

However, the years of federal constitutional crafting did show that a Bill of Rights can, and must, vigorously protect individual liberties; and, just as importantly, lawyers, judges, and the public, weaned on the Earl Warren Supreme Court, now accept, and expect, litigation as an appropriate vehicle for constitutional vindication. Thus, the current federal retrenchment has lead to rediscovery of and new appreciation for, the rights guaranteed by the Texas Constitution. The gist of this Article, then, far more than sounding the alarm about diminishing federal protection, is to explore in an overview what the Texas courts have done historically, and are doing now, in four critical areas affecting individual guarantees under the state Bill of Rights: equal protection, due process, free speech and assembly, and criminal procedure-all with an eye toward protecting those hard-won and sacred freedoms. But first, a look at the Texas Bill of Rights.

II. THE TEXAS BILL OF RIGHTS A. HistoricalBackground Unlike the federal Constitution, a Bill of Rights is found at the beginning of each of Texas' five state constitutions (article I), a signal of its importance in the eyes of its drafters and the people. The 1836 Constitution of the Republic of Texas had seventeen sections in its rights charter and set the course, but the statehood constitution of 1845 fairly well formed the pattern for its successors of 1861 (secession), 1866 (post Civil War), 1869 (Reconstruction), and 1876.80 The current constitution (1876) was written with twenty-nine provisions in article I, one less than originally introduced during the 1875 Constitutional Convention.8" Since then, the voters of Texas have amended the state Bill of Rights six times. 82

80. The 1869 Constitution of the State of West Texas, drafted when it looked as if south and west Texas would form separate states, contained 23 Bill of Rights provisions, two of which guaranteed equality and forbade peonage and slavery (available from Texas State Archives). 81. Journal of the Constitutional Convention of the State of Texas, Began and Held at the City of Austin, September 6th, 1875, at 271-75 (Galveston News, 1875) (available from Texas State Archives). Section 29, as proposed, relating to emigration from, and immigration to, Texas, was not included in the 1876 constitution. The draft of the Bill of Rights first submitted to the convention was originally laid out in article II of the proposed constitution. 82. In 1918, adding "except" to article I, § 10 (rights of accused in criminal prosecutions); in 1935, part of § 15 (right of trial by jury); in 1956, § I la (multiple convictions; denial 1986] THE TEXAS BILL OF RIGHTS 1499

Generally, article I protections fall into three categories: expres- sions of political philosophy about the nature of government and its role with respect to individuals;13 statements of substantive liberty and property rights; 84 and procedural rights for civil and criminal proceedings.85 One cannot understand or appreciate the Texas Bill of Rights without understanding the historical times and milieu in which it was drafted. By and large, the ninety authors of the 1876 constitution were sincere folks. 86 They appreciated their task and carefully crafted the constitution, relying principally on the wisdom of the constitution of other states. In fact, "the overall quality of the delegates was such that they received not only the approbation of most of their contem- 8' 7 poraries but of most modern scholars as well." They created a cumbersome document, which might have been better drafted; but they wanted to assure that it promoted their indi- vidualist and egalitarian ideals, believing with Jefferson "in wise and frugal government and . . . convinced that government existed for the benefit of the governed."88 The 1875 Texas Constitutional Convention was not so much a reaction to Reconstruction as an expression of a nationwide movement reflecting a changing philosophy of government away from the benign liberal approach, exemplified in the federal Constitution, toward a more "hands off" approach. That movement, which crystal- ized in the Pennsylvania Constitution, influenced the other state of bail), amended in 1977, and § 15a (commitment of persons of unsound mind); and, in 1972, § 3a (equality under the law). TEX. CONST. art. I, §§ 3a, 10, Ila, 15, 15a. 83. Id. §§ 1-3, 6, 24, 26, 29. 84. Id. §§ 3-4, 6-8, 11-14, 16-23, 25, 27. 85. Id. §§ 5, 8-16. See I G. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 2-4 (Texas Legislative Council 1977). 86. S. McKAY, MAKING THE TEXAS CONSTITUTION OF 1876, at 74-75 (1924). The delegates were mostly farmers and lawyers. There were also merchants, editors, stockmen, and physicians, including five blacks, and some who were legislators and judges, as well as men who fought in the armies of the North and the South. See also Thomas & Thomas, The Texas Constitution of 1876, 35 TEXAS L. REV. 907, 907 (1957). 87. J. MAUER, SOUTHERN STATE CONSTITUTIONS IN THE 1870's: A CASE STUDY OF TEXAS 211 (1981) (unpublished Ph. D. dissertation on file at Rice University, Houston). Dr. Mauer's dissertation is a thorough and comprehensive analysis of the historical and political forces behind the 1876 constitution. Cf Kelly, Jefferson the Separation Powers in the States. 1776-1787, 54 INDIANA MAG. HISTORY 25-40 (Mar. 1958). 88. Thomas & Thomas, supra note 86, at 907. 1500 TEXAS TECH LAW REVIEW [Vol. 17:1487 charters re-written at the time, as well as the Texas delegates.89 In- deed, the delegates ignored Governor Richard Coke's proposed constitution of 1874, which was closely modeled on the federal document.9 ° The thrust of the Texas Bill of Rights clearly mirrored the effort to limit government by assuring and protecting basic rights of individuals on which the state may not infringe and which, more positively, the state must protect.91 It would be a failure of immense dimensions not to recognize the importance of the state Bill of Rights, which Governor Coke specifically underlined, in his famous December 1875 speech, as reason itself to vote in favor of the new constitutuion: [T]he people of Texas have at all times the inalienable right to al- ter, reform, or abolish their government in such manner as they deem expedient, subject only to the Constitution of the United States . . . . The reassertion of these great principles of government . . . is worth a thousandfold the cost and effort in making the new constitution, even if no other changes had been made.92

B. General Comparison with the Federal Bill of Rights At the conclusion of this Article is attached a chart juxtaposing the Texas Bill of Rights with comparable federal provisions, indicating their differences and similarities. 93 Since that chart speaks well for itself, only a few general observations are appropriate here. First, the choice of words in the Bill of Rights is not happen- stance. The different conventions for the earlier Texas constitutions paid close attention to the precise language in the state Bill of Rights.94 The drafters of the 1876 constitution likewise carefully

89. J. MAUER, supra note 87, at 1-18, 210-19. 90. Id. at 107-79. 91. See Hart, The Bill of Rights: Safeguards of Individual Liberty, 35 TEXAS L. REV. 919 (1957). 92. S. MCKAY, supra note 86, at 74-75. 93. In the comparison, one should remember that the federal Bill of Rights, without the fourteenth amendment, generally limits federal, not state, government. Thus, while Texas requires the right to jury trial in civil cases, TEX. CONST. art. I, § 15, and grand jury indictment in felony cases, id. § 10, the fourteenth amendment does not impose those obligations on the states. Branzburg v. Hayes, 408 U.S. 665, 687-91 (1972); Hardware Dealers' Mutual Fire Ins. v. Glidden Co., 284 U.S. 151, 158 (1931); Hawkins v. Bleakly, 243 U.S. 210, 216 (1917); Lem Woon v. Oregon, 229 U.S. 586, 589 (1913). 94. See Journals of the Convention 302-13 (Miner & Cruger: Austin, 1845); Debates of the Texas Convention (W.F. Weeks ed.) (J.W. Cruger: Houston, 1846); Journal of the Consti- tutional Convention, supra note 81, at 117-21, 270-75, 328, 337-39, 346-57, 390, 434-36; S. 19861 THE TEXAS BILL OF RIGHTS 1501 drew and debated article I's sections, from the day of its submission to the Bill of Rights Committee through the "third reading" by the whole assembly itself, when the habeas corpus provision was again argued. 95 The delegates re-adopted the ban of imprisonment for debt9 6 and gave careful attention to the due process, 97 free speech, 98 equal rights, and criminal procedure sections,99 even placing the Bill of Rights in article I rather than article II,"° and approving it on a 66-9 vote. 1 ' Secondly, the Texas Bill of Rights is cast as an affirmative grant of protections, as contrasted with the federal language which is nega- tively written as a restriction on the powers of government. Thus, for example, the first amendment to the United States Constitution provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of people to peacea- bly assemble, and to petition the Government for a redress of grievances." What the United States Constitution lays out as part of one amendment the Texas Constitution does in six sections.' 2 The Texas provisions about establishment and free exercise of religion are more specific in terms of banning religious tests and discrimination and in protecting the exercise of religious beliefs and equal treatment of all religions, as well as those who do not worship. As to free speech and free press, Texas positively assures the right of people to "be at liberty to speak, write or publish . . . opinions on any subject"' 01 3 and goes even further and establishes in constitutional dimensions the defense of truth for matters "proper for

McKAY, supra note 86, and Debates in the Texas Constitutional Convention of 1875 234-35 (University of Texas: Austin, 1930) (all available from the Texas State Archives, Austin); see also Thomas & Thomas, supra note 86; J. MAUER, supra note 87. 95. Journal of the Constitutional Convention, supra note 81, at 434-36. 96. The 1876 constitution repeated the same ban as in the 1845 Bill of Rights which was "hailed as going farther than that of any State in the Union." Journals of the Convention, supra note 94, at 304. 97. Journal of the Constitutional Convention, supra note 81, at 351 (TEx. CONST. art. I, § 19). 98. Id. at 338-39. 99. Id. at 337-39, 346-57; see S. McKAv, supra note 86, at 234-35. 100. Journal of the Constitutional Convention, supra note 81, at 270-75. 101. Id. at 436; see S. McKAY, supra note 86, at 234-42. 102. TEX. CONST. art. I, §§ 4-8. 27. 103. Id. § 8. 1502 TEXAS TECH LAW REVIEW [Vol. 17:1487 public information.''04 Texas also adds a right of remonstrance' 05 to the right of assembly and petition. More specific protections are found likewise in Texas' two equal rights sections0 6 and in the various criminal procedure provisions.'0 7 Texas also has two due process provisions,'0 8 prohibiting retroactive laws 1 9 (which the federal Constitution does not)," 0o and granting the right to a jury in civil and criminal trials."1 Section 23, which affirms the right to keep and bear arms, permits government regulation of ' wearing arms (gun control), "with a view to prevent crime." 112 Other provisions confer rights in addition to those found in the federal Constitution," 3 but section 29 of the Texas Constitution deserves special mention because of its uniqueness and potential: "To guard against transgressions of the high powers herein delegated, we declare that everything in this 'Bill of Rights' is excepted out of the general powers of the Government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void." The Texas Supreme Court has held that section 29 is an express limitation on the state's police power which does not appear in the federal Constitution; it is a flat prohibition on any infringement on article I rights. The government simply does not have the power to

104. Id. 105. Id. § 27. 106. Id. §§ 3, 3a. 107. Id. §§ 9, 10, 11. 108. Id. §§ 13, 19. 109. Id. § 16. For discussion of the Texas constitutional prohibition on retroactive laws, see Ex parte Abell, 613 S.W.2d 255, 259-62 (Tex. 1981) (retroactive applicability of TEX. REV. Civ. STAT. ANN. art. 5561h (Vernon 1980) concerning confidentiality of communications between mental health professional and patient/client); see also Patton v. State, 696 S.W.2d 249 (Tex. App.-San Antonio 1985, no pet.) (abolition of circumstantial evidence jury charge). 110. U.S. CONST. art. I, §§ 9, 10. 111. TEX. CONST. art. I, § 15. However, in civil cases, the right can be waived by non- payment of the required fee. Huddle v.Huddle, 687 S.W.2d 58 (Tex. App.-Houston [14th Dist.] 1985, no writ). 112. TEX. CONST. art. I, § 13; cf U.S. CONST. amend. II. 113. A striking example is the suffrage provision, which allowed non-citizens to vote so long as they satisfied the residency requirement (one year in the state, and six months in the county where they "offer to vote") and "declared [the] intention to become a citizen of the United States." Even after the poll tax was added in 1902, non-citizens could vote until 1919. Female suffrage was won in 1918 (Texas was the first southern state, the ninth in the nation, to ratify the nineteenth amendment). TEX. CONST. art. VI, § 2, interp. commentary (Vernon 1955); see S. McKAY, supra note 86, at 96-98, 124. The 1875 Convention also rejected multi- member districts for the House of Representatives and the district courts. J. MAUER, supra note 87, at 236. 1986] THE TEXAS BILL OF RIGHTS 1503 restrict those rights." 4 Thus, as a result of the singular proviso of section 29, the state's high court found itself obligated to give different interpretations to nearly indentical language of the federal and state constitutions with respect to a legislative moratorium on the collec- tion of certain business obligations. 115

C. Understanding the Meaning of the Texas Bill of Rights A few words about exegesis. Not only does the federal Constitution set state constitutional minima, but the Texas Constitution can give "protection to rights . . .which the constitution of the United States does not give."' 6 and that additional protection is often indicated by the language itself of the Texas Constitution: In the construction of a constitution it is to be presumed that the language in which it is written was carefully selected, and made to express the will of the people, and that in adopting it they intended to give effect to every one of its provisions; and it cannot be presumed that separate and distinct provisions were intended to have the same and no other effect than one of them has, unless the language used, when considered in connection with the whole instru- ment, shows that this must have been the intention.117 Thus, when the language itself of the Texas Constitution differs from its federal counterpart, it is imperative to evaluate an issue afresh so as "to ascertain and give effect to the plain intent and language of the framers of a constitutional amendment and of the people who adopted it."11 But what happens when the language is close to, or not significantly different from, sections of the federal Bill of Rights? Or, when there is like language in one section but significant dissimilarities

114. Travelers Ins. Co., 124 Tex. at 53, 76 S.W.2d at 1011. 115. Id. Although the United States Supreme Court had declared that such legislation did not contravene article I, § 10 of the federal Constitution, the Texas Supreme Court concluded that article I, §§ 16 and 29 of the state constitution, taken together, prohibited such laws. 116. Mellinger v. City of Houston, 68 Tex. 37, 43-44, 3 S.W. 249, 252 (1887). 117. Id.; see Cramer v. Sheppard, 140 Tex. 271, 285, 167 S.W.2d 147, 154 (1942). But see Massachusetts Indem. & Life Ins. Co. v. Texas State Bd.of Ins., 685 S.W.2d 104, 113-14 (Tex. App.-Austin 1985, no writ) (declining to give "broader scope to § 19 than the federal Consti- tution in cases of this kind"). 118. Gragg v. Cayuga Indep. School Dist., 539 S.W.2d 861, 865-66 (Tex.), appeal dismissed, 429 U.S. 973 (1976); Gallagher v. State, 690 S.W.2d 587, 591-92 (Tex. Crim. App. 1985); cf Olson v. State, 484 S.W.2d 756, 760-62, 772 (Tex. Crim. App. 1969); infra note 332 and accompanying text. 1504 TEXAS TECH LAW REVIEW [Vol. 17:1487 overall? Does it make sense, historically or conceptually, to argue that, because the wording of the search and seizure provisions, for example, are similar, there must be uniformity of interpretation between Texas and the United States? Such a concession by any state court would seem to lack appreciation of the federalism that binds us all together. More importantly, that leap of faith, as it were, essentially deprives the state's judges and legal scholars of the opportunity to fashion their own case law which could well address the people's problems more effectively than the federal tests. After all, the federal doctrines evolved haphazardly over scores of years and carry their own historical encrustations. Why as- sume that Texas courts would not learn from that experience and form their own constitutional jurisprudence, building a place for Texas in the forefront of legal scholarship? Our Texas forebears surely never contemplated that our fundamental state charter, crafted after years of rugged experience on the frontier and molded after reflection on the constitutions of other states, would itself veer in meaning each time the United States Supreme Court issues a new decision. After all, the Texas historical experience was different than that of the Eastern seaboard. Surely, the drafters of the Texas Constitutions would abhor the thought that the Texas Bill of Rights could diminish in meaning every time the United States Constitution changed in interpretation. One ought also be mindful that the federal Constitution was not originally intended to apply to the relation between the people and the state, but to their relation with the federal government. So, even in cases of textual likeness, the intent of the writers must obviously be different. Textual similarity should mean nothing more, and nothing less, than that the words are alike. The meaning and application of the rights behind the language are left to the wisdom and jurisprudence of the courts. Justice Hans Linde addressed the same issue for his own state: The state argues that when the Oregon Constitution employs terms "substantially identical" to those in the constitutions of the United States or of other states, the framers of the Oregon Constitution should be presumed to have sought to achieve the same objectives. That they sought the same objectives is generally true in the ab- sence of contrary evidence. This does not, however, say much toward demonstrating the correct application of such a 1986] THE TEXAS BILL OF RIGHTS 1505

constitutional text. In particular, the proposition does not supp- port the non sequitur that the United States Supreme Court's decisions under such a text not only deserve respect but presumptively fix its correct meaning also in state constitution. 19 Not only is textual analysis important in construing the state constitution, but so are structural, historical, and comparative analyses.12 Thus, what is the significance that the Texas Bill of Rights is also written as an affirmative grant of rights, and not only as a restriction on government? Given the history of the times, what did the drafters of the constitution intend to accomplish? Each individual section must be appreciated not just standing alone itself but in the context of the totality of the Bill of Rights. 2' Nor have other state supreme courts construed similar provisions of their constitutions, particularly those which were drafted when Texas' was.' 22 Justice Oliver Wendell Holmes' comments in the early years of the century are as applicable to the Texas Constitution as they were to the federal: "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions . . . . Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by con- sidering their origin and the line of their growth."' 2 3 We must not only decipher the intent of Jefferson, Madison, Washington, Franklin, and Hamilton, but also of Houston, Rusk, El- lis, de Zavala, Navarro, Hogg, Ochiltree, Throckmorton, Johnson and the Grangers, and those other earlier Texans, who sought a land where they would all be treated fairly and where they could live and 24 raise their families with little government intrusion.1 In the mode of analysis itself, some state courts (such as New Hampshire and Oregon) often rely on the "primacy" approach in which they examine the state constitution first and then, if no violation is found, the federal Constitution. Under the "supplemental" theory (used by the New Jersey Supreme Court, for example), the

119. State v. Kennedy, 295 Or. 260, -, 666 P.2d 1316, 1322 (1983). 120. Philip Bobbitt would also urge doctrinal, prudential, and ethical analyses. P. BOB- BITT, CONSTITUTIONAL FATE; THEORY OF THE CONSTITUTION (1982). 121. Cf, Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1931); Pierson v. State, 147 Tex. Crim. 15, 177 S.W.2d 975 (1944). 122. Steddum v. Kirby Lumber Co., 110 Tex. 513, 519, 221 S.W. 920, 921-22 (1920); Bell v. Indian Live-Stock Co., 11 S.W. 344, 345 (Tex. 1889). 123. Gompers v. United States, 233 U.S. 604, 610 (1914). 124. Bell, 11 S.W.2d 344 (Tex. 1889). 1506 TEXAS TECH LAW REVIEW [Vol. 17:1487 federal Constitution is first consulted and then, if need be, the state charter. Generally, the supplemental method probably tends to cause more problems because, if the issue is resolved at step one the federal Constitution, the United States Supreme Court has more of an opportunity to reject a state court decision on federal law; and now a hybrid of the two is appearing on the scene.'25 These relatively simple but significant statements of construction underline the innate civil liberties potential of the Texas Bill of Rights. With these considerations and comments duly made, it is appropriate to examine the key areas in which Texas courts have significantly developed civil liberties protections beyond the scope of those found in the federal Constitution, and in which Texas has not done so. At this point in history, as the cases indicate, there is no clear chart of the direction Texas will take, especially regarding criminal procedural rights. But the cases do show that Texas courts have made important and significant decisions on the basis of the Texas Constitution. Having done so in the past, the future holds promise.

III. EQUAL PROTECTION A. FederalAnalysis 1. Introduction Equal protection law has always been far from settled. Its adapt- ability was once the hope of civil libertarians and rights proponents; but what was conceived and born in hope may not now develop to maturity, given recent federal decisions. Equal protection, logically enough, is where state courts have more frequently developed their own doctrine, unable to make sense out of federal law but wanting to protect the people's fundamental and important rights. State courts also are unencumbered with the federal doctrines of impediment, such as intent and immunity. For federal purposes, legislation will be presumed "valid and will be sustained if the classification drawn by the statute is rationally re-

125. See generally Symposium: Emergence ofState ConstitutionalLaw, 63 TEXAS L. REV. 959 (1985) (especially Pollack, Adequate and Independent State Grounds as a Means of Balanc- ing the FederalistJudicial System, and Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues When Disposing of Cases on State Constitu- tional Grounds); cf City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me. 1985) (primacy method). 1986] THE TEXAS BILL OF RIGHTS 1507 lated to a legitimate state interest"; 2 6 and the states are allowed "wide latitude" when "social or economic legislation is at issue."' 21 7 However, laws which classify on the basis of race, alienage, or national origin or impinge on "personal rights protected by the Con- stitution" are subject to "strict scrutiny" and "will be sustained only if they are suitably tailored to serve a compelling state interest."' 28 There is a nebulous ground in between "calling for a heightened standard of review," where a classification (gender or illegitimacy, for "fails unless it is substantially related to a sufficiently impor- example) 129 tant [or legitimate] governmental interest."' The simplicity of the proposition is deceptive, especially when it comes to determining what a "suspect class" encompasses, where "heightened scrutiny" comes into play, or what rights are "protected by the Constitution." Furthermore, how does one know a "compelling" state interest from a "legitimate" or a "sufficiently important" one? A quick review of the federal classifications, interests, and tests dramatizes the area's ambiguity and fluidity, illustrating why state courts are so unhappy with the analysis, often do not apply it, and increasingly develop their own doctrine, as has Texas.

2. Historical Overview

Before the 1960's, the equal protection clause of the fourteenth amendment had very limited application, except involving racial 30 classifications.' By 1977, however, one respected commentator, Professor Ken- neth Karst, had concluded that the "preeminent constitutional development of the past quarter century has been the enlargement of the guarantee of the equal protection of the laws,"' 13 ' especially through 32 development of the two-tier approach to equal protection analysis.

126. City of Cleburne v. Cleburne Living Center, 105 S. Ct. 3249, 3254 (1985). 127. Id. 128. Id. at 3255. 129. Id. 130. Blattner, The Supreme Court's "Intermediate" Equal Protection Decisions: Five Im- perfect Models of ConstitutionalEquality, 8 HASTINGS CONST. L.Q. 777, 778-79 (1981); Wil- kinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of ConstitutionalEquality, 61 VA. L. REV. 945, 947 (1975). 131. Karst, The Supreme Court, 1976 Term, Forward: Equal Citizenship Under the Four- teenth Amendment, 91 HARV. L. REV. 1 (1977). 132. Note, Developments in the Law-Equal Protection, 82 HARV. L. REV. 1065 (1969); 1508 TEXAS TECH LAW REVIEW [Vol. 17:1487

Under this approach, the Court applied "strict scrutiny" to legislative classifications involving either suspect classes or fundamental interests 133 and "minimal scrutiny" in other cases. Race' and na- 13 tional origin or ancestry 1 were suspect classes; and the right to vote,' 36 the right to a criminal appeal,' 37 interstate travel, 13 the right to procreate, 139 rights involving the parent-child relationship,"4 mar- riage,"' and the right to confrontation in criminal cases'42 were fundamental interests. However, the two-tier model raised serious questions: the con- cepts of fundamental interest and suspect class, which triggered strict scrutiny, seemed especially open-ended; and the rigidity of sharply- 143 differentiated two-step analysis was troublesome. These difficulties led to a third approach.

3. Current Federal Doctrine While continuing to apply strict scrutiny to earlier established suspect classes' 4 and fundamental interests,'45 the Supreme Court re- fused to expand either category.' 46 However, the Court invalidated legislation without resort to strict scrutiny in numerous cases not involving a fundamental right or see Gunther, The Supreme Court, 1971 Term, Foreword. In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972). 133. The development of suspect classes and fundamental interests as triggering strict scrutiny is based on Justice Stone's footnote 4 in United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 134. Loving v. Virginia, 388 U.S. 1, 11 (1967); McLaughlin v. Florida, 379 U.S. 184, 191- 92 (1964). 135. Hernandez v. Texas, 347 U.S. 475, 477-79 (1954); Oyama v. California, 332 U.S. 633, 644-46 (1948). 136. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966). 137. Douglas v. California, 372 U.S. 353, 357 (1963); Griffin v. Illinois, 351 U.S. 12, 17-19 (1956). 138. Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969). 139. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 140. Levy v. Louisiana, 391 U.S. 68, 71 (1968). 141. Loving, 388 U.S. at 12. 142. Pointer v. Texas, 380 U.S. 400, 403-04 (1965). 143. Craig v. Boren, 429 U.S. 190, 211-12 (1976) (Stevens, J., concurring); Dandridge v. Williams, 397 U.S. 471, 519-21 (1970) (Marshall, J., dissenting); Isakson v. Rickey, 550 P.2d 359, 361-62 (Alaska 1976); see also Wilkinson, supra note 130, at 948 n.15. 144. University of Cal. Regents v. Bakke, 438 U.S. 265 (1978). 145. Dunn v. Blumstein, 405 U.S. 330 (1972). 146. Dandridge v. Williams, 397 U.S. 471, 485 (1970); San Antonio Indep. School Dist., 411 U.S. 1, 28-29 (1973). 1986] THE TEXAS BILL OF RIGHTS 1509 a suspect class, 4 ' especially in cases involving alienage, illegitimate children, and sex,' 48 by applying "intermediate scrutiny." '49 While no coherent doctrine can entirely explain those decisions, certain minimal conclusions can be made about "intermediate scrutiny" and when it is applied. In nullifying differential treatment of female and male applicants for probate administration, the Court unanimously ruled that a "classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the ob- ject of the legislation, so that all persons similarly circumstanced shall be treated alike,"' 5° thus reviving the Royster Cuano "rational relationship test" as a stricter, middle ground test.' 5' The Court has since invalidated statutes, either explicity on rational basis' 52 or without any articulation of the test being applied,'53

147. The Court initially indicated that classifications based on alienage (Graham v. Rich- ardson, 403 U.S. 365, 375-76 (1971)), and gender (Frontiero v. Richardson, 411 U.S. 677, 682- 83 (1973)), might be suspect, but backed up from doing so. See Craig v. Boren, 429 U.S. 190, 207-08 (1976); Foley v. Connelie, 435 U.S. 291, 295 (1978); cf City of Cleburne v. Cleburne Living Center, 105 S. Ct. at 3254-55. 148. Plyler v. Doe, 457 U.S. 202 (1982) (education of children not legally admitted to United States); Trimble v. Gordon, 430 U.S. 762 (1977) (illegitimates inheriting from intestate fathers); Craig v. Boren, 429 U.S 190 (1976) (sale of 3.2% beer to women, but not men, between ages 18 and 21); Stanton v. Stanton, 421 U.S. 7 (1975) (parental support obligation for sons until age 21 but for daughters only until 18); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (Social Security survivor's benefits to widows, but not widowers, with dependent children); Jimenez v. Weinberger, 417 U.S. 628 (1974) (illegitimate children and disability benefits); United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973) (food stamps for households with unrelated individuals); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (assistance to families of the working poor in households; with two adults of the opposite sex not ceremonially married); Gomez v. Perez, 409 U.S. 535 (1973) (right of illegitimate children to support from natural fathers); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) (workers' compensation rights to dependent unacknowledged illegitimates); Reed v. Reed, 404 U.S. 71 (1971) (equal treatment for male and female applicants for probate administration). 149. See Plyler v. Doe, 457 U.S. at 218 n.16. 150. Reed v. Reed, 404 U.S. at 76 (citing Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 151. The Royster Guano test was again applied in Eisenstadt v. Baird, 405 U.S. 438, 447 (1972) (voiding statute making it more difficult for single persons than married persons to obtain contraceptives). 152. E.g., James v. Strange, 407 U.S. 128, 140 (1972) (indigent criminal defendants and recoupment for attorney fees and exemptions for other civil judgment debtors). 153. E.g., Stanley v. Illinois, 405 U.S. 645, 658 (1972) (failure to provide hearing for unwed father on parental fitness prior to state's assuming custody of children violates equal protection if unwed mother is entitled to such hearing); Jackson v. Indiana, 406 U.S. 715, 723-31 (1972) (setting aside statute subjecting incompetent criminal defendants to more lenient commitment, and more stringent release, standards than persons not charged with crime). 1510 TEXAS TECH LAW REVIEW [Vol. 17:1487 indicating that the rational basis test is flexible enough to require, under appropriate circumstances, closer scrutiny than that tradition- ally accorded under deferential, minimal scrutiny. However, in other cases, the Court has applied the distinct, middle-tier test between the poles of strict scrutiny and rational basis, calling it "intermediate scrutiny."' 54 The difficulty is determining when heightened scrutiny-whether characterized as "more sharply focused rational basis" or "middle-tier" review-must be applied. Logically enough, focus has been on the same two criteria which trig- ger strict scrutiny. First, the United States Supreme Court has closely, but not strictly, scrutinized "sensitive" classifications, "analogous in many respects to the personal characteristics that have been held to be suspect," but yet do not rise to the level of a suspect class. 155 However, whether a classification is "sensitive" and subject to "intermediate scrutiny" seems to invoke the same analysis as that required to determine whether a class is "suspect,"' 56 namely the extent to which the class constitutes a "discreet and insular minority."' 57 Indicia include: inability to express a potent voice in a political process; a history of purposeful, unequal treatment; such disabilities as to command ex- traordinary protection; easily identifiable characteristics; immutable characteristics determined by causes not within the control of the individual, which have no relation to ability to perform or contribute to society; and, a stigma of inferiority or badge of opprobrium.' 58

154. Craig v. Boren, 429 U.S. at 197-98; Weber v. Aetna Cas. & Sur., 406 U.S. at 172-73; cf also Mathews v. Lucas, 427 U.S. 495, 509-16 (1976); Jimenez v. Weinberger, 417 U.S. 628, 636 (1974); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 619-21 (1973); Richard- son v. Davis, 342 F. Supp. 588, 593 (D. Conn.), afl'd, 409 U.S. 1069 (1972); Gomez v. Perez, 409 U.S. 535, 538 (1973); L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1082-91 (1978); Broderick, The Nature of the ConstitutionalProcess: Equal Protection and the Burger Court, 12 N.C. CENT. L.J. 320, 328-29 (1981); Fox, Equal Protection Analysis: Lawrence Tribe, the Middle Tier and the Role of the Court, 14 U.S.F.L. REV. 525 (1980). 155. Trimble v. Gordon, 430 U.S. at 767; see also Graham v. Richardson, 403 U.S. at 371- 76. 156. See Frontiero v. Richardson, 411 U.S. 677, 686-87 (1973); Craig v. Boren, 429 U.S. 190, 207-08 (1976). 157. See Graham v. Richardson, 403 U.S. at 372. 158. Mathews v. Lucas, 427 U.S. at 505-06; Frontiero v. Richardson, 411 U.S. at 684-88; Sterling v. Harris, 478 F. Supp. 1046, 1051 (N.D. Ill.1979), rev'd on other grounds sub. nom Schweiker v. Wilson, 450 U.S. 221 (1981); see also Lusky, Footnote Redux: A Carolene Prod- ucts Reminiscence, 82 COLUM. L. REV. 1093, 1105 n.72 (1982) ("phrase 'discreet and insular' applies to groups that are not embraced within the bond of community kinship that are held at arm's length by the groups that possess dominant political and economic power"). 1986] THE TEXAS BILL OF RIGHTS 1511 Based on these indicators, the Court has held that illegitimates, 5 9 gender, 160 illegal aliens 16' and their children 162 are quasi-suspect classes demanding closer scrutiny. Secondly, the Supreme Court has closely, but not strictly, examined classifications affecting certain important rights not explicity protected by the Constitution.' 63 Thus, lower courts have held that welfare benefits, 164 education,16 and access to court 166 are quasi-fundamental rights requiring closer scrutiny. In contrast to the "discrete and insular minority" standard, the "quasi-fundamental right" test is potentially more open-ended than the analagous "fundamental right." This helps set the stage for developments in the Texas courts.

B. Texas Equal Protection Analysis Texas judges have ventured into this confusing analytical arena more than once and will do so more frequently in the future. But the Texas task should be easier in some respects because of the state constitution's two equal rights sections, 167 which are significantly more detailed and comprehensive than the fourteenth amendment's equal protection clause.'68 Texas courts have not expanded suspect classifications or fundamental rights beyond those in the federal cases and, indeed, generally accept the same classifications and rights. 169

159. Trimble v. Gordon, 430 U.S. 762, 767 (1977). 160. Craig v. Boren, 429 U.S. 190 (1976). 161. Graham v. Richardson, 403 U.S. 365 (1971). 162. Plyer v. Doe, 457 U.S. 202 (1982). 163. See, e.g., Weber, 406 U.S. at 172; see Plyler v. Doe, 457 U.S. at 221 ("public education is not a 'right' granted to individuals by the Constitution. But neither is it merely some governmental 'benefit' indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions and the lasting impact of its deprivation on the life of the child, mark the distinction"). 164. Medora v. Collautti, 602 F.2d 1149, 1154 n.12 (3d Cir. 1979). 165. Fredrick L. v. Thomas, 408 F. Supp. 832, 836 (E.D. Pa. 1976). 166. Brown v. Merlo, 8 Cal.3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). 167. Section 3 provides: "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services." TEX. CONST. art. I, § 3. Section 3a provides: "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative." Id. § 3a. 168. The fourteenth amendment provides in pertinent part: "nor shall any state... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. IV, § 1. 169. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (involuntary termination of pa- 1512 TEXAS TECH LAW REVIEW [Vol. 17:1487

However, there are two main areas of differentiation: the Texas Equality of Rights Amendment (section 3a), which specifies suspect classifications in constitutional terms, and the development of Texas' own unique rational basis test.

1. The Equality Under the Law Amendment Texas has much about which to justifiably boast, but one of its proudest days was the 1972 November election when the people re- soundingly passed the Equality of Rights Amendment to the Consti- tution. The vote was 2,156,539 for, and 548,422 against (a 4-1 margin), 171 giving Texas one of the strongest equal rights amendments among the states with like provisions (a proposed federal constitutional amendment was defeated by the states, although Texas ratified 17 1 it in 1972). Unfortunately, with few exceptions, neither the people nor the courts have relied much on section 3a (Texas ERA). Those exceptions, though, have been monumental. State District Judge Harley Clark of Travis County used the Texas Equality of Rights provisions in 1984 to strike down the exclusion of some 150,000 farm and ranch laborers from the state Workers' Compensation Act, 172 and in 1985, to void their exclusion from the Unemployment Compensation Act. 173 The United States Justices a few years earlier had allowed such an exclusion in New York law under the federal Constitution. 174 Judge Clark premised his ruling on rental rights involves fundamental constitutional rights, citing In re G.M., 596 S.W.2d 846 (Tex. 1980), applying strict scrutiny); cf Cooper v. Texas Dep't of Human Resources, 691 S.W.2d 807, 808 (Tex. App.-Austin 1985, writ refd n.r.e.) (parent-child relationship is of constitutional dimensions and should be disturbed only for compelling reasons). 170. 1 G. BRADEN, supra note 85, at 19. 171. See supra note 54. 172. Delgado v. Texas, No. 356, 714 (Dist. Ct. of Travis County, 147th Judicial Dist. of Texas, Mar. 7, 1984, modified, May 22, 1985). While primarily relying on § 3a, Judge Clark also premised his ruling on other constitutional provisions (TEX. CONST. art. I, §§ 3, 19, 29). The legislature amended the statute in 1984 to include farm and ranch laborers (TEX. REV. CIV. STAT. ANN. art. 8306, § 2b (Vernon Supp. 1985)). 173, Camarena v. Texas Employment Comm'n, Nos. 369,808 and 369,808-A (Dist. Ct. of Travis County, 201st Judicial Dist. of Texas, modified, July 2, 1985 [No. 369,808] and May 15, 1985 [No. 369,808-A], on appeal on other grounds, Nos. 14,532 and 14,479 (Tex. App.-Aus- tin). While primarily relying on § 3a, Judge Clark also relied on TEX. CONST. art. I, §§ 3, 19. 29. The legislature amended the statute in 1985 to include agricultural workers (Act of May 2, 1985, ch. 67, 1985 Tex. Sess. Law Serv. 244 (Vernon). 174. Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), ajfd, 478 F.2d 537 (2d Cir. 1973). 1986] THE TEXAS BILL OF RIGHTS 1513

findings that farm workers in Texas essentially comprised a discreet and insular class of Mexican-origin persons, uniquely identifiable as such, victimized by discrimination, and that, because such statutes operated against them, and not other workers, as a whole, the laws were unconstitutional.'75 Judge Clark's decisions had an enormous beneficial impact on the plight of a disadvantaged ethnic minority group in Texas. His rulings effectively extended full workers' compensation and seventeen million dollars in yearly unemployment benefits to some 150,000 farm workers who had suffered intentional exclusion from the Workers' Compensation Act since 1914, from the Unemployment Compensa- 76 tion Act since 1936, and from other protective social legislation. The Mexican-American Legal Defense and Education Fund (MALDEF) also sued under the Texas Constitution challenging state public school financing as discriminatory."' One of the litigants, Demetrio Rodriquez, was a plaintiff in a similar federal case tossed out by the nation's top court. 7 " However, appellate decisions are scant; and the few that exist involve sex discrimination. Although women's rights issues have not been raised for review, the courts so far have squarely decided very few cases under section 3a. The Texas Supreme Court has yet to rule as to how the amendment should be applied-that is, whether there should be any balancing tests similar to federal equal protection which would weaken section 3a seriously. The plain wording of the Equality of Rights Amendment prohibits discrimination, without qualification: "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin ... " The federal Constitution has no comparable specific guarantee of equal treatment. This critical difference between federal and state constitutions supports the conclusion that different treatment on the

175. Camarena, Nos. 369,808 and 369,808-A (Dist. Ct. of Travis County), Findings of Fact and Conclusions of Law. 176. Cf Fiscal Note and Bill Analysis, TEX. S.B. 25 68th Leg; 2d Called Session (1984); Fiscal Note, TEX. H.B. 32, 69th Leg. (1985); see Camarena, Nos. 369,808 and 369,808-A (Dist. Ct. of Travis County). 177. Edgewood Indep. School Dist. v. Bynum, No. 362,516 (Dist. Ct. of Travis County, 250th Judicial Dist. of Texas). 178. See San Antonio Indep. School Dist. v. Rodriquez, 411 U.S. 1 (1973). Subsequent to the suit, in 1984, the legislature enacted a comprehensive education reform, including a more equalized financing scheme (House Bill No. 72) (Act of July 13, 1984, ch. 28, 1984 Tex. Sess. Law Serv. 269 (Vernon)). 1514 TEXAS TECH LAW REVIEW [Vol. 17:1487

basis of national origin or sex, for example, is not merely "suspect," but is flatly forbidden, so long as it is "state action" occurring "under the law."' 79 Professor Rodric Schoen, with compelling logic, argues that what may have been a permissible justification before the Texas ERA, such as impact on the public fisc, is not necessarily permitted after 1972.18° The constitutional right to equal treatment means nothing if it becomes "inoperative" as a result of tests, such as fiscal conse- quences, that the state prefers to avoid. 8 ' Professor Schoen urges three major policy reasons why, contrari- wise to federal dogma, the "plain language" per se rule should apply to section 3a violations. First, the per se rule recognizes that the Texas Constitution provides greater protection against discrimination than does the fourteenth amendment because "the people of Texas deliberately added an unqualified and more specific guarantee" of equality of the state Bill of Rights. If section 3a were nothing more than federal equal protection "disguised as a provision of the state constitution, then amending the state constitution was merely a tedious and redundant exercise by 82 the voters of Texas."'1 Secondly, the plain language rule is easier to apply than a competing interest test. No balancing is permitted because section 3a itself has already weighed all interests in favor of equality under law. 83 'There simply is no defense to prohibited discrimination. Finally, the plain language rule provides maximum protection against judicial erosion of the unqualified right to equal treatment through indefinite and infinite weakening exceptions: Why should it be thought that certain competing interests, even compelling ones, outweigh a specific and unqualified constitutional guarantee of . . . equality? The guarantee is itself a compelling

179. Junior Football Ass'n v. Gaudet, 546 S.W.2d 70, 71 (Tex. Civ. App.-Beaumont 1976, no writ); Lincoln v. Mid-Cities Pee Wee Football Ass'n, 576 S.W.2d 922, 924 (Tex. Civ. App.-Fort Worth 1979, no writ). 180. Schoen, The Texas Equal Rights Amendment in the Courts- 1972-1977 A Review and ProposedPrinciples of Interpretation, 15 Hous. L. REV. 537, 607, 609 (1978); see Avner, Some Observations on State Equal Rights Amendments, 3 YALE L. & POL'Y REV. 144 (1984); see also Texas Women's Univ v. Chayklintaste, 521 S.W.2d 949, 951 (Tex. Civ. App.-Fort Worth), rev'd on other grounds, 530 S.W.2d 927 (Tex. 1975). 181. Schoen, supra note 180, at 607, 609. 182. Schoen, The Texas Equal Rights Amendment After the First Decade: JudicialDevel- opments 1978-1982, 20 Hous. L. REV. 1321, 1359-60 (1983). 183. Id. at 1360. 1986] THE TEXAS BILL OF RIGHTS 1515

interest of paramount constitutional significance. What more could the voters of Texas do to convince the legislature and the judiciary that . . . equality under law is a compelling interest in Texas? Judicial interpretation should respect their choice.184 On two occasions at least, the Texas Supreme Court has acknowledged the potential application of the Texas ERA, but decided the cases on other grounds. 85 The Texas Court of Criminal Appeals and various courts of appeals have applied section 3a some forty times, with mixed results. In some cases, the courts simply avoided the Texas ERA by holding the law in question applied equally to men and women;186 and family law cases have generally rejected section 3a claims.' 87 The court of criminal appeals earlier allowed statutory sex discrimination under section 3a if the discrimination was "rationally related to a legitimate state interest," a test that not even the federal courts would use. Fortunately, that approach has been abandoned in 88 favor of equal statutory treatment. Two civil appeals cases under the Texas ERA are notable. The

184. Id. at 1361 (footnote omitted). 185. In re T.E.T., 603 S.W.2d 793, 801-03 (Tex. 1980) (Steakley, J., joined by Pope and Spears, JJ., dissenting) (good discussion of Merver v. Board of Trustees, 538 S.W.2d 201 (Tex. Civ. App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.), and citing, with approval, Schoen, supra note 181, at 587), cert. denied, 450 U.S. 1025 (1981); Whittlesey v. Miller, 572 S.W.2d 665, 668 n.5 (Tex. 1978). 186. Whittlesey, 572 S.W.2d at 668-69 (loss of consortium action available to either spouse under modem tort law); Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) (en banc) (through statutory interpretation, females as well as males can be prosecuted for rape of child); Smith v. Smith, 651 S.W.2d 953 (Tex. App.-Fort Worth 1983, no writ) (Texas Family Code and case law apply equally to men and women, thereby conferring equal rights and obligations); Glud v. Glud, 641 S.W.2d 688 (Tex. App.-Waco 1982, no writ) (reversing trial court's award of custody to mother for reason of improper preference for female parent, contrary to § 14.01(b) of Texas Family Code, though without reference to the Texas ERA); Grandinetti v. Grandinetti, 600 S.W.2d 371 (Tex. Civ. App.-Houston [14th Dist.] 1980, no writ) (requiring mother to make child support when father is managing conservator); Geesbreght v. Gees- breght, 570 S.W.2d 427 (Tex. Civ. App.-Fort Worth 1978, writ dism'd w.o.j.) (sex-neutral child custody instruction); Scanlon v. Crim, 500 S.W.2d 554 (Tex. Civ. App.-Dallas 1973, writ refd n.r.e.) (suits for breach of promise to marry not abolished by Texas ERA). 187. E.g., White v. Adcock, 666 S.W.2d 222 (Tex. App.- Houston [14th Dist.] 1984, no writ); Grandinetti, 600 S.W.2d 371 (Tex. Civ. App.-Houston [14th Dist.] 1980, no writ); Ulrich v. Ulrich, 652 S.W.2d 503 (Tex. App.-Houston [1st Dist.] 1983, no writ). 188. Finley v. State, 527 S.W.2d 553 (Tex. Crim. App. 1975) (classification in rape statute disfavoring males upheld), overruled by Ex parte Tullos, 541 S.W.2d 167 (Tex. Crim. App. 1976) and Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) (en banc) (classifications disfavoring males held to violate Texas ERA and federal equal protection clause; thus court extends statute to females). 1516 TEXAS TECH LAW REVIEW [Vol. 17:1487

Fourteenth Houston Court of Appeals held that sex discrimination violates section 3a unless the inequality is required by "(1) physical characteristics, (2) other constitutionally protected rights such as the right of privacy, or (3) other 'compelling reasons.' ",189 The Eastland appellate bench allowed a classification disfavoring fathers of children born out of wedlock because it served the "compelling reason" of "promoting the best interest" of such children.'9 ° Although these two civil cases embrace the "compelling interest" defense to violations of the Texas ERA, which is preferable to the "rational basis" test utilized by the court of criminal appeals, Texas judges should simply hold that there is no countervailing interest defense to section 3a violations. The obvious remedy for Texas ERA violations is extending benefits enjoyed by the favored sex to persons of the disfavored sex, although several cases, even after finding section 3a violations, have withheld proper relief. 91 Of all the Texas ERA cases, only one decision is truly remarkable for its careful application of section 3a.' 9 2 There, a woman challenged a university rule requiring that female students reside on- campus, while male students could live off-campus. The Fort Worth Court of Civil Appeals held that the regulation violated the Texas ERA, rejected all the university's defenses, and provided a beneficial remedy. During its appeal to the Texas Supreme Court, the university changed the sex-based housing rules to age-based rules; which were then upheld. The Fort Worth case should be the model for section 3a analysis.

189. Mercer v. Board of Trustees, 538 S.W.2d 201, 206 (Tex. Civ. App.-Houston [14th Dist.] 1976, writ refd n.r.e.) (sex as suspect classification). 190. In re Baby Girl S.,628 S.W.2d 261, 264 (Tex. App.- Eastland 1982, writ ref'd n.r.e.), vacated and remanded sub. nom Kirkpatrick v. Christian Homes, Inc., 460 U.S. 1074, reaffirmed on remand, 658 S.W.2d 794 (Tex. App.-Eastland 1983, writ refd n.r.e.); see In re Unnamed Baby McLean, 697 S.W.2d 479 (Tex. App.-Fort Worth 1985, no writ). 191. Ex parte Tullos, 541 S.W.2d 167 (Tex. Crim. App. 1976) (subjecting males of 17 to jail sentence when convicted of drunk driving but exempting females of same age from jail when convicted of same offense violated Texas ERA; risk of jail confinement thus extended to females); Vick v. Pioneer Oil Co., 569 S.W.2d 631 (Tex. Civ. App.-Amarillo 1978, no writ) (statutory overtime wages for only female employees violated Texas ERA, but court nullified statute altogether rather than extending it to men); cf Mercer v. Board of Trustees, 538 S.W.2d 201 (Tex. Civ. App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.) (hair length regulation for males challenged under Texas ERA, but court withheld relief because "constant judicial intervention in some institutions does more harm than good"). 192. Texas Woman's Univ. v. Chayklintaste, 521 S.W.2d 949 (Tex. Civ. App.-Fort Worth), rev'd on other grounds, 530 S.W.2d 927 (Tex. 1975). 19861 THE TEXAS BILL OF RIGHTS 1517

2. Texas Equal Protection Nor can one ignore the prominence given the elder of the Texas equal rights provisions (section 3); it is the third paragraph of the 1 93 constitution, right after the two statements of political philosophy. It is a forceful statement by both its positive guarantee ("all free men .. .have equal rights") and its hand-in-hand negative prohibition ("no man, or set of men, is entitled to exclusive public emoluments, or privileges"). The Texas Supreme Court issued two historic decisions in the Summer of 1985 under section 3. One invalidated the Automobile Guest Statute; 94 and the other upheld the "no pass, no play" provision of the new Education Code.'95 Justice William Kilgarlin wrote for the majority in the Guest Statute case, Whitworth v. Bynum, and did not beat around the bush. Acknowledging that the United States Supreme Court had validated automobile guest laws over a half century ago against a federal equal protection attack, 196 Justice Kilgarlin rejected Bynum's contention that the state supreme court was thus foreclosed from deciding otherwise: "Subject to adhering to minimal federal standards, we are at liberty to interpret state statutes in light of our own constitution and to fashion our own tests to determine a statute's constitutionality."'' 9 7 Having set the stage for reliance on the state constitution, Justice Kilgarlin next applied "the Texas version of the rational basis test," namely, determining whether the purpose of the statute is valid (legitimate state interest) and, if so, whether the "classifications drawn by the statute are rationally related to the statute's purpose."'' 98 The Texas test requires that "similarly situated individuals must be treated equally under the statutory classification unless there is a rational basis for not doing so." Neither can the statute be "overin-

193. The equal rights provision was the first section in the 1836 constitution's Declaration of Rights. 194. Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 1985) (TEX. CIV. STAT. ANN. art. 6701b (Vernon 1977)). 195. Spring Branch Indep. School Dist. v. Stamos, 695 S.W.2d 556 (Tex. 1985) (TEX. EDUC. CODE. ANN. § 21.920(b) (Vernon Supp. 1986)). 196. Silver v. Silver, 280 U.S. 117 (1929). Tisko v. Harrison, 500 S.W.2d 565, 570 (Tex. Civ. App.-Dallas 1973, writ ref'd n.r.e.), also upheld the statute on fourteenth amendment grounds, but specifically mentioned that no § 3 contention was urged. 197. Whitworth v. Bynum, 699 S.W.2d at 196 (citation omitted from Brown v. State, 657 S.W.2d at 799, discussed infra notes 217, 306-16 and accompanying text). 198. Id. at 551 (citing Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex. 1981)). 1518 TEXAS TECH LAW REVIEW [Vol. 17:1487 clusive" nor create unreasonable and irrebutable presumptions, such as collusion between an automobile driver and passenger relatives.' 99 Justice C.L. Ray wrote the "no pass, no play" holding (Spring Branch Independent School District v. Stamos), examining equal protection and due process challenges under the Texas Constitution. Here, the court decided that no fundamental rights or interests were involved nor were any inherently suspect classes burdened.2 " Resolv- ing that strict scrutiny was not warranted, Justice Ray then utilized the same Texas rational basis test used in Whitworth v. Bynum and upheld the rule.2' Unfortunately, while providing a rather good analysis generally, Spring Branch Independent School District does not clearly rest only on adequate and independent state grounds, but appears also to apply federal law; such holdings open the door for United States Supreme Court intervention.20 2 It is interesting to observe both Whitworth and Spring Branch Independent School District's analytical reliance on Sullivan v. Univer- sity Interscholastic League.2°3 Although the supreme court struck down the University Interscholastic League (UIL) anti-transfer school rule in Sullivan, it did so under the fourteenth amendment; but the court did not really apply the traditional federal rational basis test, for, otherwise, it would have had to uphold the rule, as did the Fifth Circuit Court of Appeals with nearly an identical Louisiana 2 anti-transfer rule. 1 Sullivan was really the genesis of the Texas rational basis test, and Sullivan's state court metamorphosis is Whit- worth v. Bynum. The Sullivan logic did not spring from nowhere: it had been in the works awhile. A number of years earlier, the Texas Supreme Court had struck a Sales Limitation Act prohibition on less-than-cost sales for grocery stores as discriminatory and violative of the equal rights and due course of law sections of the constitution because there was "no reasonable relationship between the classes created and the

199. Id.; cf Clem v. Evans, 291 S.W. 871 (Tex. Comm'n App. 1927, holding approved) (invalidating presumption of fraud under TEX. CONST. art. I, §§ 13, 19). 200. Spring Branch Indep. School Dist., 695 S.W.2d at 559-60. 201. Id. at 560. 202. See infra notes 356-58 and accompanying text. 203. 616 S.W.2d 170 (Tex. 1981). 204. Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152, 159-61 (5th Cir. 1980), cert. denied, 449 U.S. 1124 (1981). 19861 THE TEXAS BILL OF RIGHTS 1519 purposes to be accomplished or the evils to be avoided."2 ° On the criminal law side of the system, the Texas Court of Criminal Appeals held in 1961 that there was no rational basis for an ordinance assessing a $25 fine against peddlers and vendors in trespass cases while assessing a $200 fine against other trespassers.2 °6 As Whitworth v. Bynum clearly demonstrates, the Texas rational basis rule is actually much closer to what some courts have called the 20 "strict reasonableness" test, 7 which is similar to middle-tier federal analysis. And that difference with federal rational basis is critical. The lower appellate courts are also wrestling with equal protection analysis, generally applying it unevenly. Part of the confusion undoubtedly comes from using the same terms ("rational basis") in the analysis but with different meanings, exacerbated by comparative references to federal cases. The Corpus Christi Court of Appeals, for example, used section 3, couched in Sullivan language, to invalidate a statutory limit on medical malpractice damages;2 8 and the Dallas court did likewise, to uphold a UIL soccer rule,20 9 while the Austin and Houston (First District) Courts of Appeals seem to apply the less rigorous federal rational basis test.210 Certainly, we are just beginning to witness the unfolding of an area of Texas constitutional law which will inalterably change the state's legal landscape; and much of that will be defined by the modes of analysis which the courts adopt for the two equal rights amendments.

205. San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 578, 297 S.W.2d 813, 816 (1957) (TEx. CONST. art. I, §§ 3 and 19). 206. Rucker v. State, 342 S.W.2d 325 (Tex. Crim. App. 1961) (relying on both U.S. CONST. amend. XIV and TEX. CONST. art. I, § 3). 207. See Aladdin's Castle, Inc. v. City of Mesquite, 713 F.2d 137, 138 n.2 (5th Cir. 1983). But see State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (Tex. 1957) (equal rights provision does not forbid classification for regulatory legislation if reasonable ground for classification and law operates equally on all in same class). 208. Detar Hosp., Inc. v. Estrada, 694 S.W.2d 359 (Tex. App.- Corpus Christi 1985, no writ) (TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 11.02, 11.04 (Vernon Supp. 1986). The court really seems to be applying TEX. CONST. art. I, § 13. 209. University Interscholastic League v. North Dallas Chamber of Commerce, 693 S.W.2d 513 (Tex. App.-Dallas 1985, no writ). 210. Massachusetts Indem. & Life Ins. Co., 685 S.W.2d 104 (Tex. App.-Austin 1985, no writ) (due process and equal protection challenge to § of qualification and license law for life insurance agents); Retail Merchants Ass'n v. Handy Dan Hardware, Inc., 696 S.W.2d 44, 51 (Tex. App.-Houston [Ist Dist.] 1985, no writ) (equal protection and due process challenge to "Blue Law"). 1520 TEXAS TECH LAW REVIEW [Vol. 17:1487

IV. SUBSTANTIVE AND PROCEDURAL DUE PROCESS Over the last few years, Texas courts have significantly extended due process protection beyond the federal guarantees, 21' relying on two Texas constitutional provisions (the "Open Courts Provision" of article I, section 13 and the "due course of law" clause of section 19) and a hybrid with common-law associational rights.

A. Open Courts Provision Historically and in contemporary times, section 13 has spawned some of Texas' most dramatic constitutional developments, which rest on due process protections quite apart from section 19: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." The Texas Supreme Court has interpreted section 13 broadly: "While it is true that [section 13] is sometimes referred to as the 'Open Courts Provision,' it is, quite plainly, a due process guarantee," assuring two distinct constitutional safeguards: open courts and, secondly, due course of law.2 12

1. Right of Redress From early on, the Open Courts Provision has been viewed as a substantive right to redress. In 1890, the Texas Supreme Court voided, under section 13, a subsedeas appeal bond requirement for receivers because: "an act of the legislature which makes the right of an individual corporation to prosecute an appeal or writ of error to depend on the giving of a supersedeas bond, without reference to the ability or inability to . . . give such a bond, is violative of the constitution. ' 21 3 Chief Justice Stayton analyzed section 13 as creating a separate constitutional right: "A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a

211. See generally Leubsdorf, Constitutional Civil Procedure, 63 TEXAS L. REV. 579 (1984) (review of federal law). 212. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). The court of criminal appeals has also applied an "open courts" doctrine in the criminal procedure context. TEX. CONST. art. I, §§ 8 and 10; see infra notes 294-95 and accompanying text; cf Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971) (right to speedy trial present in revocation of probation hearing) (TEX. CONsT. art. I, § 10). 213. Dillingham v. Putnam, 109 Tex. 1, 5, 14 S.W. 303, 305 (Tex. 1890). 1986] THE TEXAS BILL OF RIGHTS 1521 given controversy, denies a remedy by due course of law."'2 14 Typi- cally, the courts have used section 13 to strike down limitations statutes which were unreasonable impediments to the right of redress, even though they recognized the general legitimacy and importance of notice requirements. 15 The leading case for both analytical clarity and its impact on 216 contemporary Texas constitutional development is Sax v. Votteler, which invalidated a special medical malpractice limitations period for minor children. Justice Kilgarlin's opinion for an unanimous court, after a historical presentation of limitations statutes and the rights of minors, acknowledged that the challenge was brought under both section 13 and the fourteenth amendment, but noted that: While it is true that state constitutional protections cannot subtract from those rights guaranteed by the United States Constitution, there certainly is no prohibition against a state providing additional rights for its citizens . . . . Because we are of opinion that the Texas Constitution, article I, section 13, does accord Texas citizens additional rights, we choose not to decide this case on the basis of the United States Constitution .... Sax holds that the "Texas Constitution contains two separate due process provisions," both having their origin in the Magna Carta,218 and that the Open Courts Provision of section 13 protects: "the right to bring a well-established common law cause of action [which] cannot be effectively abrogated. . . absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally guaranteed right of redress ... "19 Thus, the litigant must satisfy two criteria: first, show "the extent to which the . . . right to redress," such as a "cognizable common law cause of action . . . is being restricted," and secondly, that the restriction is unreasonable or arbitrary when balanced against

214. Id. at 4, 14 S.W. at 304; see Middleton v. Texas Power & Light Co., 249 U.S. 152 (1919). 215. City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981) (allowing municipality to investigate while facts are fresh and conditions remain substantially the same, to gather information against unfounded claims, to settle claims, and to prepare for trial). 216. See supra note 212 and accompanying text. 217. Sax, 648 S.W.2d at 664. But see In re B.M.N., 570 S.W.2d 493, 498, 499 (Tex. Civ. App.-Texarkana 1978, no writ). 218. Sax, 648 S.W.2d at 664. 219. Id. at 665-66. 1522 TEXAS TECH LAW REVIEW [Vol. 17:1487

"the purpose and basis of the statute. 220 Justice Kilgarlin concedes that the legislature has the power to abolish or abridge common law actions; but, in doing so, it must also '221 provide an "adequate substitute" or "reasonable alternative. As Sax pointed out, the Texas Supreme Court sought to protect the right of redress in 1932, when it used section 13 to strike Port Arthur's ordinance limiting liability unless "notice of defect" is received twenty-four hours prior to an accident, holding that the law was unreasonable and violated due process.2 22 In 1955, the supreme court again invoked section 13 to void a Galveston ordinance similar to Port Arthur's.223 Interestingly enough, the Eastland Court of Appeals later ruled that notice provisions did not violate the fourteenth amendment; the United States Supreme Court denied certiorari.224 The state supreme court has also used section 13 to prohibit legislative continuances when a party "faces irreparable injury" to "a 2 25 substantial existing right. But it was not until Sax v. Votteler that the Texas high court provided the analytical framework for section 13, which was then applied twice subsequently to invalidate an absolute two-year limitations bar in medical malpractice suits that effectively nullified the discovery rule. The court held that the Open Courts Provision "protects a citizen . . . from legislative acts that abridge [the] right to sue before a reasonable opportunity to discover the wrong and bring 2 2 6 suit."

220. Id. at 666 (citing TEX. CONST. art. I, §§ 13, 19, comment). 221. Id. at 667 (citing Middleton v. Texas Power & Light Co., 249 U.S. 152 (1919); see Council of Co-Owners v. Texas Catastrophe Property Ins. Ass'n, 696 S.W.2d 60, 64 (Tex. App.-Austin 1985, writ granted); Westland Film Indus., Inc. v. State Bd., 697 S.W.2d 621 (Tex. App.-Austin 1985, no writ) (contract actions) and TEX. INS. CODE ANN. art. 21.49 (Vernon 1981 & Supp. 1986)). 222. Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932). 223. Lebohm v. City of Galveston, 154 Tex. 192, 195-96, 275 S.W.2d 951, 953 (1955); cf McCrary v. City of Odessa, 482 S.W.2d 151 (Tex. 1972) (minor excused by disability of minority from compliance with notice requirement). 224. Brantley v. City of Dallas, 498 S.W.2d 452, 455 (Tex. Civ. App.-Eastland 1973, writ ref'd n.r.e.), cert. denied, 415 U.S. 983 (1974); cf Artco-Bell Corp. v. City of Temple, 616 S.W.2d 190 (Tex. 1981) (striking down, on statutory grounds, as unreasonable, requirement that notice of injury claim under art. 1175, para. 6 be verified). 225. Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977) (if "a substantial existing right 2 will be defeated or abridged by delay"). See TEX. REV. Civ. STAT. ANN. art. 168a (Vernon Supp. 1986) for text of legislative continuance statute. 226. Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985); see also Nelson v. Krusen, 678 1986] THE TEXAS BILL OF RIGHTS 1523

The same year, both the Beaumont and San Antonio Courts of Appeals relied on the Open Courts Provision to overturn city charter requirements that detailed notice of a personal injury be given to the city within sixty and ninety days, respectively, of being sustained.2 7 Even though a "notice of injury" proviso is authorized for home rule cities, 28 the Beaumont court decided that a sixty day rule without a good cause exception could do nothing but arbitrarily affect a person's right of redress.2 29 The court indicated that a six-months limit, like that in the Tort Claims Act, while "not conclusive, as a reasonable time limitation . . .is certainly persuasive. '230 The San Antonio court suggested only the two-year limitations statute for injury to property.23' The potential for future development of the Texas constitutional right of redress is open-ended, especially given its clear analytical basis. The Open Courts Provision promises to be one of the marked distinctions which sets the Texas Constitution apart from its federal counterpart and from other states' charters.

2. Due Process Section 13 also confers a substantial, "independent," due process guarantee, which is "non-coterminous" with section 19 protections.232

S.W.2d 918 (Tex. 1984). Interestingly enough, the First Court of Appeals anticipated Neagle and invalidated the limitations bar while Neagle was pending in the supreme court on writ of error to the Thirteenth Court of Appeals. Melendez v. Beal, 683 S.W.2d 869 (Tex. App.- Houston [lst Dist.] 1984, no writ); see Comment, The Current Status of the Open Courts Provi- sion and the Discovery Rule in Texas: In a State of Limbo After Krusen, 16 TEX. TECH L. REV. 765, 778-80 (1985); cf Desemo v. Gafford, 692 S.W.2d 571, 573-74 (Tex. App.-East- land 1985, no writ) (medical malpractice limitations); McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 921-22 (Tex. App.-Dallas 1985, no writ) (improvements to real property and limitations); Sowders v. M. W. Kellogg Co., 663 S.W.2d 644, 647-48 (Tex. App.-Houston [1st Dist.] 1983, writ refd n.r.e.) (improvements to real property and limitations). 227. Fitts v. City of Beaumont, 688 S.W.2d 182, 183 (Tex. App.-Beaumont 1985, writ refd n.r.e.) (Beaumont City Charter, § 21); Schautteet v. City of San Antonio, No. 4-85- 00012-CV (Tex. App.-San Antonio, Nov. 13, 1985). 228. TEX. REV. CIv. STAT. ANN. art. 1175, para. 6 (Vernon 1963). 229. Fitts, 688 S.W.2d at 185. 230. Id.; cf TEX. REV. CiV. STAT. ANN. art. 6252-19, § 16 (Vernon Supp. 1986) (claimant must give notice within six months of date of incident causing injury). 231. Schautteet, No. 4-85-00012-CV (Tex. App.-San Antonio, Nov. 13, 1985); cf TEX. REV. CIv. STAT. ANN. art. 5526 (Vernon 1971) (two year limitation on actions). 232. Nelson v. Krusen, 678 S.W.2d at 921: The numerous decisions of this court construing article I, section 13 establish that the guarantee of a remedy by due course of law is a substantial right, independent of 1524 TEXAS TECH LAW REVIEW [Vol. 17:1487

As a rule, however, Texas courts generally have not taken the opportunity to more fully define the scope of procedural due process because of their frequent reliance on the fourteenth amendment. There are exceptions, though. Section 13 has been invoked to entitle a railroad engineer to due 233 process hearing before he could be denied seniority rights. There is a Fort Worth appellate decision that one-hour notice to a public officer of a removal hearing violated sections 13 and 19 because the official had not received "reasonable notice and a hearing 234 • . . upon the charges against him." The issue of prior hearing is rapidly becoming more important, especially for public employees, in light of the federal Supreme Court's decision to permit public employment terminations so long as there is a full post-discharge hearing, even as long as nine months later, provided there is "some kind of hearing, ' 235 however brief and perfunctory before dismissal. Public employees' due course of law rights may well be an arena in which Texas constitutional rights are significantly more protective than federal rights-not only the timing of the hearing but also its quality.236

other constitutional provisions. Although sections 13 and 19 of article I both guarantee due process . . . the two Texas due course of law provisions are not coterminous. Id.; see Dillingham v. Putnam, 109 Tex. at 1, 145 S.W.2d at 304. 233. Fine v. Pratt, 150 S.W.2d 308, 312 (Tex. Civ. App.- Eastland 1941, no writ) (rea- soning that seniority right based on "assumption of continuing employment" is a property right entitled to protection). 234. Ridgeway v. City of Fort Worth, 243 S.W. 740, 745, 749 (Tex. Civ. App.-Fort Worth 1922, writ dism'd): [Article I, §§ 19 and 13] are woven into the fiber of our laws and crystallized in the conscience of our judges. . . . [The due course of law] issues involved are more important than the interest or wishes of the individual litigants, and we know of no more important and solemn duty on our part than to carefully guard and protect, as far as we can, the legal and constitutional rights of the individual from all encroach- ments by an unwarranted exercise of delegated authority. Id. The court of criminal appeals, in construing article I, § 10, called "adequate notice and due process" "fundamental constitutional protections." Castillo v. State, 689 S.W.2d 443, 447 (Tex. Crim. App. 1985) (en banc) (on rehearing). 235. Cleveland Bd. of Educ. v. Loudermill, 105 S. Ct. 1487, 1493-96 (1985) (hearing need only be supervisor indicating reason for dismissal and giving employee chance of rebuttal). 236. In re B.M.N., 570 S.W.2d at 502, discussed the elements of due course of law: due process requires a fair and impartial trial before a competent tribunal. Included within this requisite is an opportunity to be heard, and reasonable opportunity to prepare for the hearing, which, of course, encompasses reasonable notice of the claim 1986] THE TEXAS BILL OF RIGHTS 1525

The other potential subject of Texas constitutional exploration is the extent to which pre-termination hearings are required before benefits (unemployment compensation or disability, for example) can be halted.

B. Due Course of Law Texas' second due process guarantee is laid out in section 19, which means, at minimum, fourteenth amendment protection. As far back as 1887, the Texas Supreme Court determined that those due process rights guaranteed by the fourteenth amendment are "as fully protected" by section 19. 237The fourteenth amendment provides, in applicable part, that: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Texas Constitution (article I, section 19) reads: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Section 19 differs from the fourteenth amendment in two chief aspects, indicating that it creates greater due process protections for Texas folks. First, section 19 confers affirmative rights directly on the people and is not limited to restricting government activity, as is the fourteenth amendment (and the fifth amendment,23 for that matter). Secondly, section 19 expands due process protection beyond life, liberty, property, privileges, and immunities to include any manner in

or charge against an individual so as to advise him of the nature thereof, and the relief sought. The right to a hearing requires a judicial examination of every issue that, according to established procedure, may affect the attainment of a legal trial, and in such a trial determine the cause according to law. There should be opportunity given to cross-examine witnesses and to produce witnesses and to be heard on questions of law. Id. 237. Mellinger v. City of Houston, 68 Tex. at 44, 3 S.W. at 252; cf Mabee v. McDonald, 107 Tex. 139, 148-49, 175 S.W. 676, 680 (1915) (due process under art. I, § 19 is practically synonymous with that under fourteenth amendment). 238. Amendment V provides in pertinent part: "No person shall be ... deprived of life, liberty, or property, without due process of law .... ." U.S. CONST. amend. V. 1526 TEXAS TECH LAW REVIEW [Vol. 17:1487

which a citizen may be disfranchised.2 39 Besides taking away the right to vote, disfranchisement includes the deprivation of a citizen's 2 rights, privileges, or immunities. ' This repeated emphasis on individual rights cannot be ignored. Every Texas Bill of Rights has contained a disfranchisement24' proviso. That and other historical evidence shows that the drafters of the Texas Constitutions intended to go beyond the protection afforded by the federal Constitution. The convention at Washington, which drafted the 1836 Declara- tion of Rights for the Texas Republic, included the reference to franchisment and specifically added the "due course of" phrase to the original proposed draft of the constitution.242 In 1845, the due process provision was expanded to prevent deprivation of life, liberty, and property: "No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the 243 land. The 1845 constitution served as a model for subsequent constitutions, which retained the same wording until the terms "outlawed" and "exiled" were transferred to the new section 20 and "privileges" was expanded to "privileges and immunities" in the 1876 constitution.244 One should also note that, during the 1875 convention, a floor debate forced "due course of' back into section 19, which had been omitted from the report of the Bill of Rights Committee. 45 The United States Supreme Court also has recognized that the Texas Constitution may afford greater protection: It is first noteworthy that the language of the Texas constitutional provision [article I, section 19] is different from, and arguably sig-

239. An analysis of the 37 states with true due process clauses reveals only North Carolina and Tennessee with clauses that even approach the wording of § 19 of article I. See CONSTI- TUTIONS OF THE UNITED STATES (F. Grad. 2d ed. 1982); FUNDAMENTAL LIBERTIES AND RIGHTS, A 50-STATE INDEX (B. Sachs ed. 1980). 240. BLACK'S LAW DICTIONARY 420 (5th ed. 1979). 241. See 1 G. BRADEN, supra note 85, at 67. 242. Section 7 of the Declaration of Rights, provides: "No citizen shall be deprived of privileges, out-lawed, exiled, or in any manner disfranchised, except by due course of the law of the land." TEX. CONST. Declaration of Rights, § 7 (1836); cf I H. GAMMEL, LAWS OF TEXAS 868 (1898). 243. TEX. CONST. art. I, § 16 (1845); see I G. BRADEN, supra note 85, at 67. 244. 1 G. BRADEN, supra note 85, at 68. 245. Journal of the Constitutional Convention, supra note 81, at 351. 1986] THE TEXAS BILL OF RIGHTS 1527

nificantly broader than, the language of the corresponding federal provisions. As a number of recent State Supreme Court decisions demonstrate, a state court is entirely free to read its own constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.246 Despite its potential, not much remarkable litigation has oc- curred under section 19 alone. Usually, section 19 and the fourteenth amendment are construed together; and sometimes section 19 is interpreted in tandem with section 13. Thus, for example, Texas cases relying on both section 19 and the fourteenth amendment minimally require notice and a hearing with an opportunity to make a defense preceding a final order.247 Pre- sumably, if fourteenth amendment protections were cut back, section 19 would still continue the same due process requirements with identical vitality. Any discussion of procedural due course of law must necessarily analyze two constituent components: whether an interest deserves due process protection, and the extent of that protection in a given circumstance. The Twelfth Court of Appeals, for example, voided a divorce de- cree under section 19 because the district judge summarily changed the settlement agreement without the wife present, increasing the amount of child support she was to pay. The Tyler court held that parties to litigation must have a "reasonable opportunity to present evidence relevant to a proper determination of the issues. ' 248 Finally, section 19 also guarantees broader due process protection for substantive economic rights than does the United States Con-

246. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (citation omitted) (ordinance governing coin-operated amusement establishments, remanded for determination in light of applicable Texas constitutional provisions). 247. See House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657-58 (Tex. 1965) (wholesale distributor of cigarettes entitled to notice and hearing prior to final forfeiture of permit); State ex rel. Merriman v. Ball, 116 Tex. 527, 534, 296 S.W. 1085, 1088 (1927) (water supply district boundaries); Steddum v. Kirby Lumber, 110 Tex. 513, 518-19, 221 S.W. 920, 924-25 (1920); In re J.B.S., 696 S.W.2d 223, 225-26 (Tex. App.-San Antonio 1985, no writ) (juvenile delinquency); Denton v. City of Austin, 587 S.W.2d 56, 58 (Tex. Civ. App.-Beaumont 1979, no writ) (suspension of master electrician's license without notice and hearing violates due process); Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex. Civ. App.- Austin 1941, writ refd) (due process includes reasonable notice and right to be heard). 248. K.D.B. v. C.B.B., 688 S.W.2d 684, 686-87 (Tex. App.-Tyler 1985, no writ). 1528 TEXAS TECH LAW REVIEW [Vol. 17:1487 stitution.249 Interestingly, substantive due process, while diminishing as a federal concept, is still a viable constitutional doctrine in Texas.25° Texas utilizes a two-step balancing test for substantive due process: there must be a real and substantial connection between the provisions and purposes of a law, and the effect must not be unduly harsh in proportion to the end sought.25 Each prong is measured by a "rea- 2 5 2 sonableness factor.

C. Common Law Associational and Due Process Rights Although Texas cases relying solely on sections 13 and 19 for procedural due course of law protections are relatively recent and sparse, there is a unique body of Texas case law which forges a right to a full pre-termination hearing with the full panoply of due process, all without reliance on any specific constitution guarantee. In those cases, Texas courts, quite simply, have relied on fundamental principles of justice.25 3 For example, Texas courts have granted members of private beneficial associations extensive pre-termination safeguards where pecuniary interests are involved. Under Texas law, trade union membership constitutes a property right which cannot be taken away without due process so that, before the expulsion or suspension of a member, or of a subordinate body of a parent organization (like a receivership), charges must be brought, notice given, and a prior hearing held. 254 The pecuniary interest which invokes due process rights

249. State v. Richards, 301 S.W.2d at 601-02; Yorko v. State, 681 S.W.2d 633, 636 (Tex. App.-Houston [14th Dist.] 1984) (ban on obscene sexual devices), aft'd, 690 S.W.2d 260 (Tex. Crim. App. 1985); cf Thompson v. Calvert, 489 S.W.2d 95, 99 (Tex. 1972) (statute limiting compensation; certain licensed businesses may pay bailees and licensees; not unreasonable); Wylie v. Hays, 114 Tex. 46, 51-52, 263 S.W. 563, 565 (Tex. 1924) (law relating to con- tracts is superior to liberty to contract if constitutes due process as applied). 250. See, e.g., Day-Brite Lighting v. Missouri, 342 U.S. 421, 423-25 (1952); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977) (divestiture by court of former spouse's private property); Spann v. Dallas, 11l Tex. 350, 357, 235 S.W. 513, 515 (1921). 251. Humble Oil & Ref. Co. v. City of Georgetown, 428 S.W.2d 405, 413 (Tex. Civ. App.-Austin 1968, no writ); City of Coleman v. Rhone, 222 S.W.2d 646, 649 (Tex. Civ. App.-Eastland 1957, writ rerd); cf Aladdin's Castle, Inc. v. City of Mesquite, 713 F.2d at 138 n.2. 252. State v. Richards, 301 S.W.2d at 602. 253. See Masonic Grand Chapter of Order of Eastern Star v. Sweatt, 329 S.W.2d 334, 337 (Tex. Civ. App.-Fort Worth 1959, writ ref'd n.r.e.). 254. International Union of Operating Engineers v. Pierce, 321 S.W.2d 914, 918 (Tex. Civ. App.-Beaumont 1959, writ ref'd n.r.e.). 1986] THE TEXAS BILL OF RIGHTS 1529 is sufficent for federal due process purposes even if it comprises a future expectancy of pecuniary interest, like insurance benefits which beneficiaries of an expelled member would have collected by remain- ing with the association until death.255 In fact, a member of a benefit society "is entitled to a fair trial after due notice, by procedure analgous to judicial proceedings," including the right to "defend" one's self, to be represented by counsel, to interview witness, and time in which to prepare a defense.256 One final case of importance and significant ramifications: Judge Joseph H. Hart of Travis County, examining a state agency's use of mandatory polygraphs, ruled that, given the lie detector's inherent unreliability and inadmissibility at trial, the agency could not dismiss an employee "for refusal to answer questions or participate in a polygraph exam. To do so would be 'unjust and unlawful job deprivation.' "257 Judge Hart's decision, while not specifically relying on any constitutional provision, is certainly couched in due process and associational terms. And it certainly portends a future willingness on the part of Texas courts to extend due process to the people of Texas, both at common law and under the constitution, and at a greater level than found in federal court.

V. FREE SPEECH AND ASSEMBLY Typically, the three principal areas which see most of the litigation and controversy in the free speech debate concern restrictions on content and location of expression, libel issues, and retaliation for expression. From 1836 on, every Texas Constitution has carefully laid out that "every citizen shall be at liberty to speak, write or publish his

255. Sweatt, 329 S.W.2d at 335; cf Lawrence v. Ridgewood Country Club, 635 S.W.2d 665 (Tex. App.-Waco 1982, writ refd n.r.e.) (no Sweatt right to cross-examine witnesses because no pecuniary interest exists in membership in purely social club). 256. Sweatt, 329 S.W.2d at 337 ("precipitate trial" without the time to prepare a defense "is little different from a condemnation without a trial"); cf Adams v. American Quarter Horse Ass'n, 583 S.W.2d 828, 834 (Tex. Civ. App.-Amarillo 1979, writ refd n.r.e.) (members of voluntary association entitled to due process analogous to judicial proceedings when subject not covered in by laws). 257. Texas State Employees Union v. Texas Dep't of Mental Health & Mental Retarda- tion, No. 356,631 (Dist. Ct. of Travis County, 200th Judicial Dist. of Texas), Letter Opinion (Sept. 24, 1984), pp. 2-3, on appeal, No. 14,460 (Tex. App.-Austin) (relying on Kaske v. City of Rockford, 450 N.E.2d 314 (Il. 1983); Farmer v. City of Fort Lauderdale, 427 So. 2d 187 (Fla. 1983); and Crawford v. State, 617 S.W.2d 925, 930 (Tex. Crim. App. 1980)). 1530 TEXAS TECH LAW REVIEW [Vol. 17:1487 opinion on any subject" and prohibited government restrictions, long before the United States Supreme Court imposed first amendment guarantees on the states in 1925.258 Texas has also always gone further than the first amendment in a second respect, by enshrining in the Bill of Rights the important, cor- related right, that "truth . . . may be given in evidence" in "prosecu- tion for the publications of papers investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information. "259 There is historical evidence that the drafters of the Texas Consti- tution intended to go beyond the protection afforded speech by the federal Constitution. Indeed, as originally proposed, the initial clause of section 5 of the Declaration of Rights of the 1836 Constitution for the Republic of Texas mirrored the language of the first amendment to the United States Constitution: "No law shall ever be passed to curtail the liberty of speech or the press. In all prosecutions for libel, the truth may be given in evidence, and the jury shall have the right to determine the law and the fact, under the direction of the court. ' 26 By the time the constitution was put before the citizens of the Republic for ratification, the following language had been added to the beginning of the section: "Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible 12 61 for the abuse of that privilege. This language bespeaking an affirmative right, rather than the earlier language limiting legislative authority, was ultimately adopted by the framers of the state's initial constitution of 1845. The Texas Constitution was consciously drafted to insure that the rights of speech, expression, and petition would not be abridged 2 62 by either government officials or private parties.

258. Gitlow v. New York, 268 U.S. 652, 666 (1925); see also Stromberg v. California, 283 U.S. 359, 368 (1931); Fiske v. Kansas, 274 U.S. 380, 386-87 (1927). 259. TEX. CONST. art. I, § 8. As originally submitted to the 1875 convention, the free speech section would also have established "good motives" for "justifiable ends" as a sufficient defense in "all civil or criminal actions for libel." JOURNAL OF THE CONSTITUTIONAL CON- VENTION, supra note 81, at 272. 260. 1 GAMMEL, LAWS OF TEXAS 868 (1898). 261. Id. at 1082. 262. Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927, 928-29 (Tex. Crim. App. 1982) (en banc) (banning closed criminal proceedings); cf Houston Chronicle Publishing Co. v. McMaster, 598 S.W.2d 864 (Tex. Crim. App. 1980) (en banc) (construing TEX. CODE CRIM. PROC. ANN. art. 1.24 (Vernon 1977)). 1986] THE TEXAS BILL OF RIGHTS 1531

In fact, the Texas Supreme Court has indicated its willingness to recognize free speech rights beyond the federal Constitution. In a 1983 per curiam opinion without oral argument, the court held that the Texas Constitution allowed a dissatisfied customer to drive his van with a sign proclaiming that the car dealer had sold him a "lemon. '26 3 The high court reversed the Corpus Christi Court of Appeals on the state constitution, ignoring totally that court's holding ' 264 that the federal Constitution allowed a "lemon law. In fact, as far back as 1920, the Texas Supreme Court held that, under the state constitution, slander or defamation alone were not sufficient justification for restraining an individual's right to speak freely.265

A. Free Speech and Private Property In 1983, Judge Hart of Travis County, relying on the free speech and assembly sections of the Texas Constitution permitted nuclear freeze advocates to take up petitions to the local Congress member inside a shopping mall.26 6 Judge Hart ruled that, although the federal first amendment no longer protected such activity, 267 the Texas Bill of Rights did make "affirmative grants of rights" to speak, assemble, and petition those invested with the powers of government. 268 No appeal was taken.

263. Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253 (Tex. 1983) (per curiam) (applying TEX. CONST. art. I, § 8). 264. 645 S.W.2d 827 (Tex. App.-Corpus Christi 1982), rev'd, 647 S.W.2d 253 (Tex. 1983). 265. Ex Parte Tucker, 110 Tex. 335, 338, 220 S.W. 75, 76 (1920). 266. Sections 8 and 27 provide, respectively, in pertinent part: Section 8: Every person shall be at liberty to speak . . . his opinions on any subject • . . and no law shall ever be passed curtailing the liberty of speech or of the press. Section 27: The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. TEX. CONST. art. I, §§ 8, 27; cf State v. Reyes, 700 P.2d 1155 (Wash. 1985) (en banc) (court used state free speech guarantee similar to Texas and federal law to invalidate abusive language statute as vague and overly broad); cf also Shiffrin, The FirstAmendment and Economic Regu- lation: Away From a General Theory of the First Amendment, 78 Nw. U.L. REV. 1212, 1273- 76 (1983) (describing special place of press in first amendment analysis). 267. Hudgens v. NLRB, 424 U.S. 507, 512-21 (1976); see Lloyd Corp. v. Tanner, 407 U.S. 551, 556-70 (1972). 268. Nuclear Weapons Freeze Campaign v. Barton Creek Square Shopping Center, No. 349,268 at 3 (Dist. Ct. of Travis County, 126th Judicial Dist. of Texas, July 13, 1983) (TEX. CONST. art. I, §§ 8 & 27). 1532 TEXAS TECH LAW REVIEW [Vol. 17:1487

Judge Hart applied a test similar to that used by the Washington State Supreme Court, 269 balancing the use and nature of the private property and the nature of the speech activity. As property becomes the functional equivalent of the "village green" or other public gather- ing place or forum, reasonable speech activities are less intrusive on an owner's autonomy interest, the owner experiences less threat to the property's value. In the balance equation, the exercise of free speech has added weight because it is a preferred right, though subject to reasonable time, place, and manner regulation. 70 Judge Hart's decision had been presaged by the Dallas Court of Civil Appeals in 1980, which suggested that there might be a right of access to private property "where there are no reasonable alternative 2 means of exercising first amendment rights." '

B. Libel As already indicated, the constitutional limits on the law of libel is in flux in the federal courts as it often has been. It is in this area that the Texas Supreme Court will likely have to wrestle in the next few years. Right now, the key Texas case involves two Dallas Morning News accounts of fiscal wrongdoing or irregularities at North Texas State University, and a resulting libel suit.27 2 The Fort Worth Court of Ap- peals decided for the newspaper under both state law and the federal constitution and, in so doing, laid out a few solid principles. First, libel means a false, defamatory statement of fact, not of opinion. 73 Secondly, "vortex public figures" (those who thrust themselves into the public debate), as distinguished from private individuals, must prove that the publisher acted with knowledge of falsity or

269. Alderwood Assocs. v. Washington Envtl. Council, 635 P.2d 108, 116 (Wash. 1981). 270. Judge Hart concluded that his balancing test would not extend the same free speech rights to a private home or small business (Nuclear Weapons Freeze Campaign, No. 349,268 at 5-6 (Dist. Ct. of Travis County, 126th Judicial Dist. of Texas, July 13, 1983)). 271. Rains v. Mercantile Nat'l Bank, 599 S.W.2d 121, 124 (Tex. Civ. App.-Dallas 1980, writ refd n.r.e.). 272. A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.). 273. Id. at 79-80; cf Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 811, 819-20 (Tex. 1976) (in libel action brought against newspaper by civil engineer, fact that engineer served both as county surveyor and private consultant raised issue of fact whether engineer's private consulting activities deserved constitutional protection from false defamatory statements), cert. denied, 429 U.S. 1123 (1977). 1986] THE TEXAS BILL OF RIGHTS 1533 with reckless disregard of whether it was false or not.274 When malice is alleged, it must be proven, not by the standard "preponderance of evidence" rule, but by the higher "clear and convincing" test.275 Even private individuals must prove, when relying on the usual negligence test, that the content of the factual misstatement would reasonably warn a prudent publisher of its defamatory potential.276 Just as significantly, the Fort Worth court apparently rejected the "presumed damages" concept for a public figure who "could not point to any actual dollar loss" and who offered "no substantial evidence, other than his own testimony, of any loss because of embarrassment or humiliation. 2 7 Even private individuals are "limited to compensation for actual injury"; and there is a policy against excessive punitive damages, even where malice is shown, because of their chilling effect ("a pall of fear") on free speech rights.278 Where the courts go from here is an open, and critical, question. Although it is well reasoned, the Fort Worth case unfortunately made no clear statement whether the state constitutional test was independent of federal law. And more unfortunately, the Texas Supreme Court held in a libel case that the summary judgment rule precluded a resolution of a malice allegation without fact-finding,279 over a strong dissent by Justice Raul Gonzalez that summary judgment in free press cases was appropriate where actual malice was not shown in the record.28 °

C. Speech and Redress In 1984, the First Court of Appeals in Houston held that the Texas Constitution prohibits firing a hospital employee for speaking and writing on matters of public concern relating to the hospital.

274. 644 S.W.2d at 80 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974)). 275. Id. at 85. 276. Id. at 83 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974)). 277. Id. at 86. 278. Id.; see Doubleday & Co. v. Rogers, 674 S.W.2d 751, 753-54 (Tex. 1984) (no punitive damages without actual damages for policy reasons). But see Outlet Co. v. International Sec. Group, 693 S.W.2d 621, 624, 628-30 (Tex. App.-San Antonio 1985, no writ) (which also cautions against punitive damages, but apparently would allow presumed damages for private individuals in libel per se actions); cf Wheeler v. Green, 268 Or. 99, -, 593 P.2d 777, 789 (1979) (Oregon Constitution prohibits award of punitive damages in speech-related torts). 279. Beaumont Enter. & Journal v. Smith, 687 S.W.2d 729, 730 (Tex. 1985) (construing TEX. R. Civ. P. 166-A); cf New York Times Co. v. Sullivan, 376 U.S. 254, 286 (1964) (evidence of malice constitutionally insufficient to support judgment). 280. 687 S.W.2d at 730-31 (Gonzalez, J., joined by Spears, J., dissenting). 1534 TEXAS TECH LAW REVIEW [Vol. 17:1487

Noting the "lack of reported cases applying this constitution provision to an employment relationship," the court declined "to construe the Texas free speech provision as giving less protection to employees than that afforded by the First Amendment. . ." The court did not rule whether being a public or private employee made a difference. 28' In a unique development (and indeed the first reported decision) of section 27's right to petition for redress of grievances, the El Paso Court of Appeals has held that those in government were constitutionally required to consider a remonstrance presented to them. 282 The case involved a written remonstrance ("a document formally stat- ing points of opposition or grievance") 283 about tenure policy changes presented by faculty members to community college trustees. The El Paso court, after a fascinating historical analysis of the Grand Re- monstrance, held that it was a "seldom used, but nevertheless valua- ble, constitutional right" 284 and required the college board to consider the remonstrance, although the board was not required to negotiate with the faculty over the remonstrance.

D. Penumbra Rights Generally speaking, the right of privacy is found in the penumbrae of various specified constitutional rights, one of the primary of which is the associational right attached to speech and assembly guarantees. The penumbra conceptual development in federal constitutional jurisprudence has yet to fully blossom in Texas, although the right of privacy is advancing. In Industrial Foundation v. Texas IndustrialAccident Board,285 the Texas Supreme Court discussed approvingly the line of United States Supreme Court cases culminating in Roe v. Wade, 8 6 noting

281. Jones v. Memorial Hosp. Sys., 677 S.W.2d 221, 224 (Tex. App.-Houston [1st Dist.] 1984, no writ). Although not decided on constitutional grounds, but certainly an indication of its thinking, the Texas Supreme Court held in 1985 that an employer could not terminate an employee for refusing to commit an illegal act. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Texas law also prohibits retaliation for some associational rights, such as union membership, and related exercise of those rights. TEX. REV. CIv. STAT. ANN. arts. 5207a, 5154g (Vernon 1971). 282. Professional Ass'n of College Educators v. El Paso County Community Dist., 678 S.W.2d 94, 97 (Tex. App.-El Paso 1984, no writ). 283. Id. at 95. 284. Id. 285. 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 286. 410 U.S. 113 (1973). 19861 THE TEXAS BILL OF RIGHTS 1535 that the right to privacy recognized in Wade protects the individual against government intrusion into various "zones of privacy" including "intimate personal relationships or activities, freedoms of the individual to make fundamental choices involving himself, his family, and his relationships with others." These "zones of privacy" arise from the "penumbrae" of the Bill of Rights and are "inherent in the concept of ordered liberty."28 The right of privacy was pivotal in Judge Hart's decision to ban certain types of polygraph testing, discussed in the due process section.288 Judge Hart also found that polygraph "control questions," those which are not "specifically, narrowly, and directly related to the employee's performance of his official duties in connection with the specific incident that is [the] subject of the investigation," constituted "a common-law invasion of privacy." 289' Truly, Texas law is at a historic juncture with respect to free speech, associational rights, and privacy. Only time will tell if the moment was seized.

VI. CRIMINAL LAW AND PROCEDURE The criminal law area reflects better than any other the tension and controversy surrounding federal court retrenchment and state court efforts to maintain constitutional protection-all the while keeping a wary eye on the voters. Cries about protecting criminal defendants, while always short- sighted, have charged the debate over civil liberties for the last thirty years. The political gain to be made in the name of "law and order" by decrying constitutional protections is not lost on candidates for office, which complicates the task and obscures the debate. That tension is reflected in Texas appellate decisions, which quite often show a skittishness and an unclear direction, almost a vacilation between constitutional protection and diminishment. The debate takes place within the Texas Court of Criminal Ap- peals itself and between that court and the United States Supreme Court and other courts of appeal in Texas.2 90

287. IndustrialFound., 540 S.W.2d at 679; see Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973); Yorko v. State, 690 S.W.2d at 266-68 (Clinton, J., dissenting). 288. See supra note 257 and accompanying text. 289. Texas State Employees Union, No. 356,631 at 3-6 (Dist. Ct. of Travis County). 290. Even the high court has received uncommonly ascerbic criticism from Justice John Paul Stevens about its penchant to reach out and overturn cases more solicitous of arrestees' 1536 TEXAS TECH LAW REVIEW [Vol. 17:1487

Some of the pain with the federal decisions is self-inflicted because the court of criminal appeals rarely decides cases on independent state grounds, generally applying federal and state authorities simultaneously, which invites Supreme Court review.2 9 ' But, when push comes to shove with the federal justices, the court of criminal appeals, more often than not, bends in compliance, declining to strike out on its own as have other states when they have been embarrassed or chastised by the United States Supreme Court- this, despite frequent invitations to do so by members of that Court, like Justice Brennan: "it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal 292 Constitution. The court of criminal appeals, like its civil counterparts, was caught up in the whirlwind of constitutional development during the 1960's so that most of its cases involving civil liberties were analyzed in light of United States Supreme Court pronouncements. Texas courts also generally reflected the more conservative mood of the state with respect to federal decisions; and, while compelled by principles of federalism to comply (and generally doing so willingly), the courts were not expected to, and usually did not, break new ground. Additionally, Texas criminal procedure generally favored prose- cutors over defendants so that federal law was often invoked in an rights than federal law, charging his colleagues with "promoting the Supreme Court . . .as the High Magistrate of every warrantless search and seizure" in the country. California v. Carney, 105 S.Ct. at 2072 (Stevens, J., joined by Brennan & Marshall, JJ., dissenting); see also Ponte v. Real, 105 S. Ct. at 2199 (Stevens, J., joined by Blackmun, J., concurring) ("impru- dence of the Court's decision to grant certiorari in this case is aggravated by the substantial probablity that the Massachusetts court will, on remand, reinstate its original judgment on the basis of the state constitution," footnoting cases to that effect from Massachusetts, California, South Dakota, and Washington). 291. Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App. 1985) (en banc) (citing Kolb v. State, 532 S.W.2d 87 (Tex. Crim. App. 1976) (a multi-agency road block for purposes other than a license check violated both the fourth amendment and § 9, reversing convictions for marijuana possession)); see discussion about deciding cases under adequate and independent state grounds, infra notes 356-58 and accompanying text. 292. Michigan v. Mosley, 423 U.S 96, 120 (1975) (Brennan, J., dissenting); see also Cooper v. California, 386 U.S. 58, 62 (1967); New Jersey v. T.L.O., 105 S. Ct. 733, 745 n.10 (1985). Justice Stevens provides an excellent discussion as to when the United States Supreme Court should defer to the independent and adequate grounds of decisions under the state constitution in South Dakota v. Neville, 459 U.S. 553, 566-71 (1983) (Stevens, J., dissenting). 1986] THE TEXAS BILL OF RIGHTS 1537 attempt to re-establish equilibrium, a fact attested to by the number of significant United States Supreme Court cases from Texas. A sign of the times now days is that Texas courts seriously consider constitutional claims and occasionally find that either the state constitution or Texas law affords greater protection than does the federal Bill of Rights-something that would not have been forecast twenty-five years ago. In addition to the Texas rights charter having criminal law protections similar to those in the federal constitution,' 93 the Texas Leg- islature has enacted Code of Criminal Procedure provisions almost identical to those in the state constitution.2 94 Thus, the Code often permits an appellate court to resolve an issue on a statutory basis without having to decide whether the Texas Bill of Rights provides an independent, adequate protection greater than the federal constitution.295 More and more, the court of criminal appeals points out that the federal constitution is not the sole guarantor of people's rights.296 Justice Roberts, an advocate of this view, penned a well throught-out dissent to a 1979 decision,297 which held that a search by a store security guard, who secretly observed a woman place a sweater in her purse and leave the fitting room, was not subject to the fourth amendment because it was private action. Judge Roberts argued to the contrary, that the search violated the reasonable expectation of privacy and was unreasonable under article 38.23 of the Code of Criminal Procedure 298 and article I, section 9 of the Texas Constitution.299

293. U.S. CONST. amends. IV, V, VI; TEX. CONST. art. I, §§ 9, 10, 11, Ila, 13, 14, 15, 19. 294. TEX. CODE CRIM. PROC. ANN. ch. I (Vernon 1977); see. e.g., Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927 (Tex. Crim. App. 1982). 295. Cf, e.g., Houston Chronicle Publishing Co. v. Shaver, 630 S.w.2d 927 (Tex. Crim. App. 1982); Milton v. State, 49 S.W.2d 190, 192 (Tex. Crim. App. 1977); Robbins v. State, 696 S.W.2d 689, 690 (Tex. App.-Dallas 1985, no pet.). 296. Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969). 297. Gillett v. State, 588 S.W.2d 361, 364-71 (Tex. Crim. App. 1979) (en banc). 298. Article 38.23 provides, in relevant part: 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. TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 1979). 299. Section 9 provides: The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place, or to seize 1538 TEXAS TECH LAW REVIEW [Vol. 17:1487

Judge Roberts carefully advocated an independent interpretation of the state constitution, arguing that Texas was free to extend protection against unreasonable search and seizure by private citizens and indeed probably had done so, 3° given that article 38.23's forerunner was enacted during Prohibition when "it was not a rare event for private persons to join peace officers in searching for, and seizing, alco- 30 1 holic beverages. Judge Roberts' dissent pointed out that Texas has greater rights than those mandated by the federal constitution by requiring grand jury indictment in felony cases, providing stronger probation revocation protections, and enacting stricter requisites for oral confessions. 302 Whether Judge Roberts will be cited favorably in a future en banc majority opinion is for the Fates to answer. The areas which have drawn most attention recently involve search and seizure, self-incrimination, the exclusionary rule, confrontation, and some unsettling developments in grand jury law.

A. Search and Seizure Although the search and seizure prohibitions of the state and federal constitutions seem similar,3"3 the Texas provision, besides being affirmatively framed, appears on its face to have a greater specific warrant requirement, namely, that the person or thing be described

any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. TEX. CONST. art. I, § 9. 300. [I]n our determination of the admissibility of evidence acquired by private persons, we are not limited by Fourth Amendment doctrines if state law establishes stricter standards. At a time when some judges are displaying hostility to the constitutional exclusionary rule (if not to the Fourth Amendment itself), it is important to remember that the legislative representatives of the people of Texas enacted and re- peatedly reenacted a broader, statutory rule of exclusion long before it was required by the federal courts. Gillett, 588 S.W.2d at 367-68 (footnote omitted). 301. Id. at 368. 302. Id. at 367 n.9. 303. The fourth amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. 1986] THE TEXAS BILL OF RIGHTS 1539

"as near as may be,"' a phrase not included in the 1836 constitution but added to the 1845 Bill of Rights.3 "5 However, the court of criminal appeals recently felt compelled by a 1944 decision to continue interpreting the Texas search and seizure section "in harmony with the Supreme Court's opinions interpreting the Fourth Amendment, 30 6 since both "are, in all material aspects, the same."3 7 The 1983 decision (Brown v. State) and the 1944 case (Crowell v. State) both address the plain view exception to the warrant requirement. Brown's procedural history illustrates the tension between the federal justices and the criminal appeals judges. Originally, the court had set aside a Tarrant County conviction because the warrantless seizure of an opaque balloon with contraband could not be justified under the plain view doctrine.30 8 However, the United States Supreme Court reversed on fourth amendment grounds and returned the case.309 On remand, the court of criminal appeals reinstated the conviction and declined the sugges- tion, as untimely raised, that the Texas Constitution might nevertheless provide an independent basis to support the earlier reversal. 10 The vote in Brown shows the court's internal division: only four judges accepted the plurality opinion; one judge concurred in the result without opinion; two judges concurred with Judge Sam Houston Clinton; and the ninth, Marvin Teague, dissented. Even though the court bowed to the federal justices, it did ac- knowledge that the states were free to accept or reject federal holdings and set for themselves such standards as appropriate so long as they did not fall below the minimal requirements of the United States Constitution.31' The court recognized that Texas, in the past, had imposed

304. Cf TEx. CONST. art. I, § 9. 305. Even though the phrase "as nearly as may be" was in the original proposed draft of the Constitution of the Republic, the 1845 convention did not adopt it, which may well indicate the care with which the phrase was debated and then later incorporated into the Bill of Rights. 306. Brown v. State, 657 S.W.2d 797, 799 (Tex. Crim. App. 1983) (en banc). 307. Crowell v. State, 147 Tex. Crim. 299, 304, 180 S.W.2d 343, 346 (1944). 308. Brown v. State, 617 S.W.2d 196, 200 (Tex. Crim. App. 1981). 309. Texas v. Brown, 460 U.S. 730 (1983), rev'g 657 S.W.2d 797 (Tex. Crim. App. 1983) (en banc). 310. Brown v. State, 657 S.W.2d 797 (Tex. Crim. App. 1983) (en banc). 311. Id. at 799. 1540 TEXAS TECH LAW REVIEW [Vol. 17:1487 stricter protections, such as a statutory exclusionary rule well in ad- vance of the 1961 Supreme Court mandate extending the federal rule to the states,312 but nonetheless demurred because it was "not the function of the judiciary to engraft such changes upon our 313 Constitution." Judge Clinton voted to uphold the conviction on the basis of the plain view doctrine, but strongly objected to the plurality's "quick, broad, and irrational" response that the Texas Constitution did not provide an independent basis to support the original reversal 314 had the issue been properly raised. Judge Clinton's concurrence lays out a historical analysis to establish the adequate and independent state grounds protecting the people of Texas against searches and seizures that might otherwise be countenanced by the federal courts. His language is as colorful as it is pithy: The sophistry indulged in by the plurality would have this Court • . . await some kind of "mandate" to interpret and construe provisions of the Constitution of this State, especially the Bill of Rights, in our own lights. Meanwhile, we are to "continue on this path," following steps . . . "toward 'balancing' into oblivion the protection the Fourth Amendment affords" .... Merely to parrot opinions of the Supreme Court of the United States interpreting the Fourth Amendment is to denigrate the special importance our Texas forebearers attached to their right to privacy and other guarantees vouchsafed by the Bill of Rights they first declared and then insisted on retaining in every successive constitution ....

Accordingly . . . I completely reject [the plurality's] reading of Crowell v. State . . . and its gratuitous abdication of the duties and responsibilities of this Court. 1 ' Judge Teague also wrote a penetrating historical argument, with a rather more biting commentary: [T]his Court and all appellate courts of this great State of Texas constitute an independent appellate judiciary, and do not exist,

312. Mapp v. Ohio, 367 U.S. 643 (1961). 313. Brown v. State, 657 S.W.2d at 799. 314. Id. 315. Id. at 806-07 (Clinton, J., joined by Onion, P.J., & Miller, J., concurring) (citing Michigan v. Long, 463 U.S. 1032 (1983) (Brennan, J., joined by Marshall, J., dissenting) (protective search of automobile passenger compartment during investigative detention)). 1986] THE TEXAS BILL OF RIGHTS 1541

when it comes to interpreting the Constitution and Laws of this State, solely to mimic decisions of the Supreme Court of the United States.

To the plurality's implicit holding that members of this Court now have the role of being nothing more than mimicking court jesters of the Supreme Court of the United States, taps should be blown, and flags flown at half-mast-on behalf of what was for- merly a Court that was part of the independent appellate judiciary of the State of Texas.3 16 Nevertheless, the last page remains to be written; and the ambiguity continues.3"7 Perhaps, as in other once and future cases of im- port, the Brown concurrence (or dissent) may carry the majority another day. The hope of a slight modification of Brown is found, strangely enough, in a court of criminal appeals decision that a warrantless arrest and search, based on an informer's tip which failed the second prong of Aguilar v. Texas,31 was now permissible under a revised federal "totality of circumstances" test 319 overruling Aguilar and Spinelli.32 ° However, even though the Court upheld the search under the federal constitution, it remanded the case for determination under state law, 32' which may indicate the Court's recognition of independent state constitutional grounds for the basis of a decision, giving it the chance to distance itself from its rather sweeping language in Brown.322 The First Houston Court of Appeals had originally reversed the

316. Id. at 810 (Teague J., dissenting). 317. Meeks, 692 S.W.2d 504 (Tex. Crim. App. 1985) (en banc). 318. 378 U.S. 108, 114-15 (1964) (underlying circumstances showing information reliable and specific factual allegations showing informant reliable). 319. Illinois v. Gates, 462 U.S. 213, 238 (1983) ("totality of circumstances" as measured by the "substantial basis" in record as a whole). 320. Spinelli v. United States, 393 U.S. 410 (1969). 321. Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex. Crim. App. 1984) (en banc), rev'g 657 S.W.2d 184 (Tex. App.-Houston [1st Dist.] 1983). 322. Judge Teague used a dissent to argue that Texas was free, as a matter of its own law, to impose greater restrictions upon police activity than does the United States Supreme Court and that the Aguilar test was still part of Texas law. He also took a swipe at the federal justices, saying that when they decided Aguilar, "contrary to now, the Supreme Court was very concerned about the rights of citizens of the United States." Id. at 957 (Teague, J., dissenting). Already, at least four other states have opted to keep the Aguilar-Spinelli test, re- jecting Illinois v. Gates: State v. Jones, 706 P.2d 317, 322 (Alaska 1985); State v. Kimbro, 496 A.2d 498, 507 (Conn. 1985); Commonwealth v. Upton 476 N.E.2d 548, 557 (Mass. 1985); State v. Jackson, 688 P.2d 136, 139 (Wash. 1984). 1542 TEXAS TECH LAW REVIEW [Vol. 17:1487 conviction solely on federal grounds, not addressing the similar state law claims. On remand, the Houston court held that the Aguilar test was still part of Texas law (specifically the Code of Criminal Proce- dure)323 and again reversed the trial court.32 4 The Beaumont Court of Appeals also embarked on an effort to construe section 9 more broadly than the fourth amendment, reversing a conviction for driving under the influence of liquor because a non-consensual test of the defendant's blood was admitted into evi- 3 25 dence over objection. However, the court of criminal appeals reversed the case, holding that neither the fourth amendment nor section 9 prohibited blood tests without a warrant because of exigent circumstances, cautioning that earlier decisions of the court "should not be construed as enlarg- ing the scope of. . . Section 9 of the Texas Constitution beyond the scope of the Fourth Amendment" in terms of taking blood samples.32 6 Three judges dissented.

B. Self-Incrimination The right against self-incrimination has fared better recently, although the federal32 and state3 28 prohibitions are similar. The Corpus Christi Court of Appeals overturned a driving-while- intoxicated conviction because the trial court admitted into evidence the defendant's refusal to submit to a breath test.32 9 The Thirteenth Court acknowledged that such evidence was allowed by other courts;3 30 but, wrote Justice F.P. Benavides, until the

323. Eisenhower v. State, 684 S.W.2d 782, 785 (Tex. App.-Houston [lst Dist.] 1984, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 18.01 (Vernon 1977)). 324. Id. at 786, relying on Tolentino v. State, 638 S.W.2d 499 (Tex. Crim. App. 1982), and Kleason v. State, 560 S.W.2d 938 (Tex. Crim. App. 1978) (en banc) (construing both state and federal constitutional provisions and TEX. CODE CRIM. PROC. ANN. art. 18.01(b)(c) (Vernon 1977)). 325. Pesina v. State, 677 S.W.2d 548, 550 (Tex. App.- Beaumont 1983), rev'd, 676 S.W.2d 122 (Tex. Crim. App. 1984) (en banc). 326. 676 S.W.2d 122, 126 (Tex. Crim. App. 1984) (en banc). 327. The fifth amendment provides, in relevant part: "No person ... shall be compelled in any criminal case to be a witness against himself .. " U.S. CONST. amend. V. 328. Section 10 provides, in pertinent part: "In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself .. " TEX. CONST. art. I, § 10. 329. Sinast v. State, 688 S.W.2d 631, 634 (Tex. App.-Corpus Christi 1985), pet. refl'd, 698 S.W.2d 153 (Tex. Crim. App. 1985) (en banc). 330. Id.; see Parks v. State, 666 S.W.2d 597, 599 (Tex. App.-Houston (1st Dist.] 1983, no pet.), based upon the United States Supreme Court's interpretation of the fifth amendment in South Dakota v. Neville, 459 U.S. 553 (1983); Ashford v. State, 658 S.W.2d 216, 218 (Tex. 1986] THE TEXAS BILL OF RIGHTS 1543 court of criminal appeals "sees fit to narrow the scope of the protection afforded to citizens of the State, we are unwilling to do so." The court ruled that the United States Constitution provides minimum protection, not maximum, and distanced itself from federal decisions, which should not be relied upon by intermediate state appellate courts to restrict independent and compatible rights given to Texas citizens by their own state constitution and laws.3 3' What is remarkable about the Corpus Christi decision, other than its well articulated holding on state grounds, is that twelve years before the court of criminal appeals, in a case involving compelled handwriting exemplars, specifically construed the self-incrimination provisions of the fifth amendment and the Texas Constitution as the 332 same, the latter being "declaratory of the common law. That would appear to leave the Corpus Christi court at odds with the court of criminal appeals, but it would also provide the high criminal appellate court with the opportunity to re-examine its analysis in light of the cutback in federal protection against self- incrimination.

C. Exclusionary Rule Professor Dawson's excellent treatment of the Texas exclusionary rule, which is cited in Brown, 3 3 3 gives little reason to expand here upon the development of that exclusionary rule other than referring both to the Dawson article and Brown, and then looking at a few interesting historical facts. The Texas rule resulted from the Prohibition raids in the 1920's

App.-Texarkana 1983, no pet.); and Gresset v. State, 669 S.W.2d 748, 749 (Tex. App.- Dallas, 1983, no pet.) (holding that the provisions of TEX. CODE CRIM. PROC. ANN. art. 38.22 and TEX. CONST. art. I, § 10 were no broader than fifth amendment protection). 331. Sinast v. State, 666 S.W.2d at 634 (citing Neville, 459 U.S. at 566-71 (Stevens, J., dissenting)). The court held that Dudley v. State, 548 S.W.2d 706, 707 (Tex. Crim. App. 1977), controlled, although Dudley was actually decided on both the fifth amendment and Texas Constitution provisos against self-incrimination. 332. Olson v. State, 484 S.W.2d at 762-72 (on motion for rehearing), overruling Trammel v. State, 287 S.W.2d 487 (Tex. Crim. App. 1956) (compelled blood tests violated fifth amendment and TEX. CONST. § 10). Judge W.A. Morrison, author of Trammel, dissented in Olsen on § 10 grounds ("a State may surpass minimum federal constitutional requisites.") Id. at 773 (Morrison, J., concurring in part and dissenting in part); see also Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985) (en banc) (use of pre-arrest silence in this particular case to impeach defendant who testified did not violate TEX. CONST. art. I, §§ 10 or 19, or federal constitution). 333. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TEXAS L. REv. 191 (1981); see Brown v. State, 657 S.W.2d at 800. 1544 TEXAS TECH LAW REVIEW [Vol. 17:1487 and the unanimous refusal by the court of criminal appeals to sup- press three gallon jugs of whiskey unlawfully obtained through an automobile search by a sheriff and some private citizens.33 Essentially, the court found that section 9 did not mandate exclusion of illegally obtained evidence.335 Legislative reaction was swift, producing the strong exclusionary rule which has been in effect since 1925, with some amendment. The state rule is notably more comprehensive than its federal counterpart, prohibiting evidence seized by a private party as well as evidence obtained in violation of any law (not just the constitutional provisions) of the United States or Texas.3 36

D. Confrontation Where real distance may be carved between state and federal constitutions is in the area of right of confrontation. This is shown by two significant decisions in the context of admitting videotaped testimony of a child in a sexual abuse trial, which is permitted by an act of the legislature. 337 Both cases are out of the Dallas Court of Appeals.338 The first case (Long v. State) held that use of video tapes violated both state 339 and federal 34 confrontation clauses, reversing the conviction, even though the defendant was able to cross-examine the child during the trial, but not before, therefore denying him the ability to prepare a proper defense- certainly a courageous decision by an elected bench. Long provides an excellent historical overview of the confrontation clause and analysis of video tape use. The second confrontation case (Powell v. State), decided about the same time as Long, also invalidated use of a videotaped interview

334. Welchek v. State, 247 S.W. 524 (Tex. Crim. App. 1923). 335. Id. at 528-30. 336. Professor Dawson's article also indicates three other statutes in which the Texas Leg- islature affirmed its commitment to the exclusionary rule. Dawson, supra note 333, at 194 n.6. 337. TEX. CODE CRIM. PROC. ANN. art. 38.071 (Vernon Supp. 1986). 338. Long v. State, 694 S.W.2d 185 (Tex. App.-Dallas 1985, no pet.); Powell v. State, 694 S.W.2d 416 (Tex. App.-Dallas 1985, no pet.). Unfortunately, both cases, decided under the state and federal constitutions, did not articulate reliance on adequate and independent state grounds. 339. Section 10 provides, in relevant part: "In all criminal prosecutions the accused . . . shall be confronted by witnesses against him .... ." TEX. CONST. art. I, § 10. 340. The sixth amendment provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by witnesses against him ...... U.S. Const. amend. VI. 1986] THE TEXAS BILL OF RIGHTS 1545 of a child,34' reversing an indecency conviction. The child testified on tape without the defendant being able to confront or call the child during trial. Powell held that there must be face-to-face confrontation at some point between the complainant and the accused,3 4 2 even if the defense attorney is allowed to be present. The right to cross-examination is personal to the defendant, and the state cannot force the defendant to delegate that right entirely to the lawyer because an essential element of confrontation is the ability to consult with one's lawyer during cross-examination of the adverse witness. 34 Interestingly, the court pointedly reached a different conclusion on the basis of the Texas Constitution than did a New Jersey court holding that its state constitution allowed such videotapes. 3 " The Dallas Court bit the bullet, recognizing that its decision would be un- popular, but referred to an earlier case for an eloquent statement of constitutional principle, which would have made Justice Benjamin Cardozo proud: The little girl was nervous . . . and this was relied upon as a reason for the State not offering her as a witness . . . . The writer shares all of the sympathy which the State and the jury may have had for the child in her unfortunate situation and would like to relieve her completely of the embarrassment, but it would set a precedent too dangerous to be sanctioned. It would be better that a guilty person may go unpunished than that this important provision of our Constitution be ignored. The rights of the accused in the instant case, however important to him, are infinitesimal when compared to the rights of the millions which are protected by the constitutional provision involved.34

341. 694 S.W.2d at 421. 342. Id. at 420 (citing Garcia v. State, 151 Tex. Crim. 593, 598, 210 S.W.2d 574, 578 (1948) (on rehearing), which cited Kemper v. State, 63 Tex. Crim. 1, 46-47, 138 S.W. 1025, 1038 (1911), overruled on other grounds, Robertson v. State, 63 Tex. Crim. 216, 241-42, 142 S.W. 533, 546 (1911)): The constitutional provision that the accused shall be confronted with the witnesses against him means that the witnesses on the part of the State shall be personally present when the accused is on trial, or that they shall be examined in his presence and be subject to cross-examination by him. 694 S.W.2d at 420; see Baltierra v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979) (on rehearing en banc) (applying sixth amendment, TEX. CONST. art. 1, § 10, and TEX. CODE CRIM. PROC. ANN. art. 46.02, § l(a)(1)(2)). 343. Powell, 694 S.W.2d at 420; Baltierra, 586 S.W.2d at 556. 344. State v. Sheppard, 484 A.2d 1330 (N.J. Super L. 1984). 345. Powell v. State, 694 S.W.2d at 420 (citing Vasquez v. State, 145 Tex. Crim. 376, 378, 167 S.W.2d 1030, 1032 (1942)). 1546 TEXAS TECH LAW REVIEW [Vol. 17:1487

E. Juries The news here is both good and bad. Charges of racially biased jury selection have long plagued the Texas courts.346 To these claims, the court of criminal appeals seems quite often to search for the pro- verbial sand in which to bury its head. That was recently shown again in a 1985 decision, upholding a capital murder conviction. The issue was whether the grand jury panel was insufficiently representative of Mexican-Americans in Cam- eron County. Somehow, the court was able to look at the statistics showing anywhere from thirty percent to fifty percent disparity between the population of Hispanics in the county and their representation on the grand jury and find no underrepresentation. The court tried a number of procedural steps to avoid the merits but finally ruled head on, contrary to even federal precedent. First, the court held that one could only claim biased composi- tion of the grand jury if that person's own race had been excluded.347 Besides being incorrect in federal due process forums, that position wholly undermines the entitlement to a jury representative of the community-no matter the person's sex, race, or national origin- based on the constitutional presumption that justice is more likely to come from a cross-section of the community than from any particular 348 group. The court ignored similar statistical underrepresentation of Mex- ican-Americans349 which the United States Supreme Court found in Hidalgo County, neighboring Cameron County on the west, as unconstitutional.

346. E.g., Castaneda v. Partida, 430 U.S. 482 (1977); Hernandez v. Texas, 347 U.S. 475 (1954); Cassell v. Texas, 339 U.S. 282 (1950); Akins v. Texas, 325 U.S. 398 (1945); Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128 (1940); Brooks v. Beto, 366 F.2d I (5th Cir. 1966), cert. denied, 386 U.S. 975 (1967); Espinoza v. State, 604 S.W.2d 908 (Tex. Crim. App. 1980). 347. Bird v. State, 692 S.W.2d 65, 77-78 (Tex. Crim. App. 1985) (en banc) (citing Espi- noza v. State, 604 S.W.2d 908 (Tex. Crim. App. 1980)). But see Espinoza, 604 S.W.2d at 910- 14 (Clinton J., dissenting) (excellent application of Castaneda statistical tests). Bird held that the due process issue was not properly preserved for appeal, but considered it nonetheless. 348. Peters v. Kiff, 407 U.S. 493, 500-01 (1972). 349. Castaneda v. Partida voided a conviction because of an 11 year disparity, ranging from 30%-53% from 1962 through 1972. In Bird v. State, except for one grand jury panel, from 1971 through 1976, the disparity ranged from 21%-54% (10%-12% being statistically significant for federal courts). Only once in 1975 was there even close representation (75%), and that was during legal turmoil in the Valley about underrepresentation of Mexican-Ameri- cans on grand juries. Cf Castaneda, 430 U.S. at 487 n.7, 494-97. 1986] THE TEXAS BILL OF RIGHTS 1547

The Fifth Circuit also found like fault with grand juries in Wil- lacy County, bordering Cameron Count to the north (the Gulf of Mexico is on the east); 35 0 and the same state judges who empanel grand juries in Willacy County, empanel grand juries in Cameron County.35i Just as surprising as its failure to accord even full federal protection is that the court of appeals made no mention whatever of the Texas Equality of Rights Amendment, even though minority underrepresentation on grand juries violates the rights of that minority as a class.352 Nevertheless, the court of criminal appeals earlier did distinguish its jurisprudence by holding that the Texas right to counsel 353 carried with it the right of counsel to interrogate prospective jurors on voir dire so that they may form their own conclusions by personal contact whether the juror would be a proper person on whom to exercise a jury challenge, perhaps, for example, because of racial prejudice.354 The court acknowledged that holding, although the denial of such a right would probably not violate the right of counsel guarantee in the Texas Constitution.355

350. Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm'rs, 622 F.2d 807 (5th Cir. 1980), cert. denied, 450 U.S. 964 (1981). The Fifth Circuit also indicated the viability of an action attacking systematic exclusion or underrepresentation of young people (between ages 18 and 28) and of poor people (those with incomes below the government desig- nated poverty level), besides Mexican-Americans (Spanish surnames) and women. Id. at 812, 813, 817-19. 351. TEX. REV. CiV. STAT. ANN. arts. 199, 138 Dist. (Vernon 1969) and 199a, §§ 2.002, 6.003 (Vernon Supp. 1986). 352. Carter v. Jury Comm'n, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); Ciudadanos Unidos, 622 F.2d at 816-19. 353. Section 10 provides, in pertinent part: -In all criminal prosecutions the accused shall have. . . the right of being heard by himself or counsel, or both. ...TEX. CONST. art. I, § 10. (Despite the language of this section, indigent defendants have "no constitutional right in Texas to hybrid representation partially pro se and partially by counsel." Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977) (on rehearing); Sanders v. State, 692 S.W.2d 546, 547 (Tex. App.-Houston [14th Dist.] 1985, no pet.)). But see McKaskle v. Wiggins, 465 U.S. 168 (1984); Faretta v. California, 422 U.S. 806 (1975). 354. Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975); see Mathis v. State, 322 S.W.2d 629 (Tex. Crim. App. 1959). 355. Abron, 523 S.W.2d at 408; see Fendrick v. State, 39 Tex. Crim. 147, 45 S.W. 589 (1898); Lester v. State, 2 Tex. App. 432, 442-43 (1877) ("no juror was permitted to try the case until he had, in effect, taken an oath that he regarded a negro as highly as he did a white man"). 1548 TEXAS TECH LAW REVIEW [Vol. 17:1487

F. Summary This glimpse into the direction of different cases, past and present, shows the court of criminal appeals ambivalent about its role and rather tentative in taking the lead as other state courts have done. Particularly disturbing is the court's quickness to docilely har- monize Texas constitutional protections with the federal Supreme Court and a willingness to leap from textual similarities to uniformity of interpretation with federal law.

VII. CONCLUSION A. A Word of Caution A final note about Justice Kilgarlin's clear statement of resolution solely on Texas constitutional grounds in Whitworth v. Bynum and Sax v. Votteler.35 Despite protestations of federalism, the United States Supreme Court is currently engaged in a duel of sorts with state supreme courts, going out of its way at times to overrule cases in which state courts extend greater constitutional protection. As a result, the United States Supreme Court may, and does, take a case only to reverse it, on the grounds that it is unclear whether federal or state law is used (and thus presuming reliance on the former) or that the interpretation of the state constitution was based on an erroneous reading of a comparable federal provision.3"7 This has brought howls from other justices, both federal and state; but the message is there: all cases decided on an adequate and independent state constitutional grounds alone must carry a specific "plain and clear" statement to that effect, indicating no use whatever of federal law, except perhaps for some illustrative references (and even that is hazardous). Unfortunately, numerous Texas appellate decisions have not taken that precaution."' But, if the courts are going

356. Whitworth v. Bynum, 699 S.W.2d at 197; Sax v. Votteler, 648 S.W.2d at 664. 357. See South Dakota v. Neville, 459 U.S. 553 (1983); Montana v. Jackson, 460 U.S. 1030 (1983); Michigan v. Long, 463 U.S. 1032 (1983). For a suggested form of language, see State v. Kennedy, 295 Or. 260, -, 666 P.M 1316, 1321 (1983); People v. Beavers, 393 Mich. at -, 227 N.W.2d at 516; Collins, Plain Statements. The Supreme Court's New Requirement, 70 ABA J. 92, 92-94 (1983). 358. See, e.g., Spring Branch Indep. School Dist.. 695 S.W.2d 556 (Tex. 1985); Holick v. Smith, 685 S.W.2d 18 (Tex. 1985); Rucker v. State, 170 Tex. Crim 487, 342 S.W.2d 325 (1961); Powell v. State, 694 S.W.2d 416 (Tex. Crim. App.-Dallas 1985, no writ); Long v. State, 694 S.W.2d 185 (Tex. Crim. App-Dallas 1985, no writ); University Interscholastic League v. North Dallas Chamber of Commerce Soccer Ass'n, 693 S.W.2d 513 (Tex. Crim. App.-Dallas 1985, no writ). But see Sinast v. State, 666 S.W.2d 597 (Tex. App.-Houston 1986] THE TEXAS BILL OF RIGHTS 1549 to protect their constitutional holdings, closer attention will have to be paid to this point.

B. Applying Nineteenth Century Language to Twentieth Century Facts No historian or legal scholar would dispute that court interpretations have expanded constitutional doctrine to areas and problems which our Founders never contemplated; nor would many dispute that the Founders certainly envisioned that result or they would have never penned in general statements of principle, rather than specifics, "a constitution intended to endure for ages to come, and, conse- quently, to be adapted to the various crises of human affairs . . . to which, if foreseen at all, must have been provide . . . for exigencies 3 5 9 seen dimly, and which can be best provided for as they occur. The genius of American constitutional government is its adapta- tion of the Bill of Rights to the contemporary world so that the "purposes and policies" of the constitutional protections 360 are assured to ourselves and future generations, regardless of scientific advances or sophistication of government. Our task is to discern and apply the "purposes and policies" behind the Texas Bill of Rights, structurally and historically, to issues of privacy, computer interfacing and match ups, polygraphs, wiretap- ping, equal treatment for women and minorities, education, retaliatory employment termination, and to other concerns and problems of modern Texas. This must needs create, then, an "essential tension that springs from the uncertain mandate which this. . . Constitution 36 1 gives to [the] Court." Justice John Harlan put it well a few years back: "As uncertain as the constitutional mandate derived from . . . the Bill of Rights, it is the task of this Court to seek that line of accommodation which will render [it] relevant to contemporary conditions. "362 Justice John Paul Stevens recently echoed those same sentiments: "We current justices read the Constitution in the only way we can, as 20th century Americans. . . . The ultimate question must be, what

[1st Dist.] 1984, no writ); State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983); cf Ponte v. Real, 105 S. Ct. at 2199 & n.4, and cases cited therein. 359. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). 360. California v. Byers, 402 U.S. 424, 450 (1971) (Harlan, J., concurring). 361. Id. 362. Id. at 454. 1550 TEXAS TECH LAW REVIEW [Vol. 17:1487 do the words of the text mean in our time?" 363 But our task is not as simple as just applying lofty ideals from one constitution to another. It is much more difficult. The burden falls on the bar's creativity and scholarship to assist the state courts and provide them with the tools to develop a constitutional jurisprudence. Not only must the tests be developed, for equal protection, due process, and so on; but the state courts must pick up the ball from where the federal courts dropped it. Is prison and jail reform, for example, required by the Texas Bill of Rights?3" Should handicapped people form a quasi-suspect class for Texas purposes? Will the Texas Equality of Rights Amendment be meaningful for minority women, especially those raising families in poverty? Consider, for example, all the procedural obstacles, steps which must yet be taken in Texas, such as standing, 365 state-wide class certi- fication, and post-judgment supervision. We know that state court civil rights suits will bring more than only the nominal damages which the federal courts would allow in unlawful search and seizure cases, 366 but will Texas courts adhere to their current "reasonableness" test and resist government efforts to carve out civil rights immunity for itself? And how about attorney fees that serve as an incentive for lawyers to vindicate the rights of those too poor to invest in consti- 3 67 tutional litigation? Finding a right under the state constitution is only the first hurdle, and perhaps the shortest. Enforcing the constitutional guarantee will test the mettle of the bench and bar.

363. Justice Answers Attack from Attorney General, Austin American-Statesman, Oct. 26, 1985, at A12, col. 1. 364. Hemphill, Challenging Conditions of Confinement: A State ConstitutionalApproach, 20 WILLAMETTE L.J. 409 (1984). 365. Gholson v. State, 667 S.W.2d 168, 173 (Tex. App.-Houston [14th Dist.] 1983, pet. ref'd) (state test for standing in criminal cases claiming overbreadth different than federal analysis). 366. Weyer v. Wegner, 58 Tex. 539 (1883). 367. Attorney fees and costs may be awarded under the Declaratory Judgments Act, (TEX. CIv. PRAC. & REM. CODE § 37.009 (Vernon Pamph. Supp. 1986), but it is still not decided the extent to which sovereign immunity may block such an award. Nor have judicial exceptions to the American Rule that each party bear its own costs and fees been litigated in Texas. See Serrano v. Unruh, 32 Cal. 3d 621, 652 P.2d 985, 186 Cal. Rptr. 754 (1982) (af- firming availability of attorney fees in class action under private attorney general theory attacking discriminatory school financing); Serrano v. Priest, 20 Cal. 3d 25, 38-39, 569 P.2d 1303, 1309-10, 141 Cal. Rptr. 315, 321 (1977) (setting out various theories of recovery). 1986] THE TEXAS BILL OF RIGHTS 1551

C. The Last Word Where are we, then, in the unfolding Texas constitutional development? Are we on the frontier of a new era in Texas law? Or are we just experimenting, tentatively testing the waters? The answer lies in the hands of courageous jurists, who are will- ing to risk political rancor for "rocking the boat." On the horizon already gather electoral threats and intimidation by business and insurance leaders, unhappy with rulings which make it easier for aggrieved citizens to find redress, huffing and puffing that profits are 3 68 being diminished in the name of equal justice. Ironically, the burden of preserving our precious civil rights and liberties falls heavily on the shoulders of judges who must stand for election and raise large sums of money to defend what their conscience and learning tell them is fair and just. Ironic because the unelected judiciary, the federal bench, which is constitutionally designed to withstand the political winds and sandstorms, has abdi- cated its historic role with only a few bright exceptions. As the Vermont Supreme Court stated it, this generation of the bench and bar has "an unparalleled opportunity, to aid in the formu- lation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the United States Supreme Court may ebb and flow."3'69 The system of justice in Texas is not, never has been, and never will be, perfect. But the Texas Bill of Rights provides us with the historical opportunity of growing and making ourselves better citizens for it. Let this author add his plea to that of those who labored to write and then secure passage of the 1876 Texas Constitution: Fellow citizens, we invite you first to examine the "Bill of Rights": therein you will see that the liberty of the citizen, as inherited from our ancestors, is inserted and protected by every safeguard known to constitutional law. The government of Texas is restored to the people of Texas, a pledge to you that you, your children and your children's children shall enjoy the priceless legacy bequeathed to us by our fathers of 1776 and 1836.37 °

368. High Court Campaigns Targeted, State Business Leaders Cite Liability Rulings, Dal- las Times Herald, Oct. 27, 1985, at 1-A. 369. State v. Jewett, 500 A.2d 233, 234 (Vt. 1985). 370. ADDRESS TO THE PEOPLE OF TEXAS, COMMITTEE, CONSTITUTIONAL CONVENTION OF 1875, at 3 (Texas State Archives). 1552 TEXAS TECH LAW REVIEW [Vol. 17:1487

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