NO. 47-00








Keller, P.J., filed a dissenting opinion.


Not every violation of law should trigger Article 38.23's exclusionary sanction; the exclusionary rule should not be invoked for laws that are unrelated to its purpose:

But the underlying theory of both the exclusionary rule and article 38.23 is the same: to protect a suspect's liberty interests against the overzealousness of others in obtaining evidence to use against them. Thus, unless someone's privacy or property interests are illegally infringed in the obtainment of evidence the core rationale for providing this prophylactic measure is not met and its use is unwarranted. To expand the breadth of 38.23 to any and every violation of Texas "law" - beyond those that affect a defendant's privacy or property interests - is to ignore the basic premise under which the statute was created and would lead to absurd results. (1)

For example, we have declined to apply Article 38.23's exclusionary rule to violations of the Assumed Name Statute because that statute had nothing to do with the primary purpose of the exclusionary rule. (2) Likewise, Article 38.23 should not be applied to violations of Texas Family Code 52.02(b) because 52.02(b) is unrelated to the gathering of evidence. (3)

51.095, entitled "Admissibility of a Statement of a Child," sets out in detail the procedures required for taking a juvenile's statement. A statement taken in compliance with those procedures "is admissible in evidence." (4) Appellant's statement was taken in compliance with 51.095 and thus should be "admissible in evidence." Nevertheless, the Court holds that the statement is subject to exclusion because of the interaction of 52.02(b) and Article 38.23. This holding appears to rest on an assumption that Article 38.23 "trumps" 51.095. I disagree with this conclusion because the positive (i.e.,"is admissible") phrasing of the statute - that by its terms and title actually deals with the admissibility of such statements - renders a compliant statement admissible. I realize that this Court has, in spite of these considerations, allowed Article 38.23 to trump 51.095 upon a violation of subsection (a) of 52.02. But we have not previously done so with regard to subsection (b) of that statute.

52.02(b) provides:

A person taking a child into custody shall promptly give notice of his action and a statement of the reason for taking the child into custody, to:

(1) the child's parent, guardian, or custodian; and

(2) the office or official designated by the juvenile court.

Although we have applied the statutory exclusionary rule to violations of 52.02(a), concerning the failure to deliver a juvenile taken into custody to the proper place at the proper time, 52.02(b) involves distinct considerations. While 52.02(a) concerns a juvenile's liberty interests, 52.02(b) is a third party notification provision. By the statute's very terms, the right to be notified is for the benefit of the parent, guardian, etc.. There is nothing in the statute that even suggests that its purpose is to allow parents to prevent their child from making a statement. It seems obvious that if that had been the Legislature's intent, it would have included the notification requirement as a prerequisite under 51.095, "Admissibility of a Statement of a Child."

To hold that Article 38.23 is implicated, one would have to assume that the notice provision is designed to protect the child's interests. However, it appears to me that the notice provision is designed instead to protect the parent's interest in knowing the whereabouts of the child. The latter interpretation is bolstered by the fact that 52.02(b) also requires notifying the designated juvenile office or official. Is the juvenile office notification provision also designed to protect the juvenile's rights? What could the Legislature have believed the juvenile office would do in that respect? Would a juvenile office be empowered to (or even interested in) terminating a police interrogation? I think not, and for that reason, I conclude that 52.02(b) is not concerned with the personal rights of the juvenile. The provision is simply an administrative provision designed to notify interested parties.

By its holding, the Court implies that parents have the right to be present during custodial interrogation of a child. There does not seem to be any support for this proposition. Although the juvenile court must permit visitation at "all reasonable times," no law requires the juvenile officer to allow visitation at all. (5) And the juvenile court need not permit visitation at all times - only at all "reasonable" times. Contrary to permitting a parent to intrude himself into a custodial interrogation, 51.12(b) directs that the parent be allowed to see the child on the juvenile court's terms, not the parent's.

It is suggested that the notification provision enables parents to exercise their rights to care for and control the child, which rights inure to the parents under 151.003(a). But these parental rights are enumerated in the context of Title V, involving such matters as custody disputes between divorced parents. Parental rights listed in 151.003 are more properly helpful in answering questions like who, among competing parents, is legally responsible for a child. There is no reason to suppose that these rights under Title V, subsection B, entitled "Suits Affecting the Parent-Child Relationship," are intended to be applied to matters involving statutes under Title III, "Juvenile Justice Code," in a manner that is contrary to the explicit language of 51.095.

And applying Article 38.23 to the notice provision creates potential problems. How quickly must someone act to satisfy the requirement that the notice be given "promptly"? What happens if the parent, guardian, or custodian is away from a phone and cannot be reached? What if the parents are un-notifiable because the juvenile is in custody for murdering them? Juveniles sometimes lie to the police about their age and identity. Some juveniles will not want their parents to be notified and will give false or unhelpful information. Some will not know how to contact their parents. Is it enough that the arresting official tried in good faith to promptly notify the relevant person? It would seem not, since the juvenile notice provision does not contain "good faith" or "reasonable attempt" language. Rather than interpreting Article 38.23 to apply to the notification requirement, and then being forced to create a good faith exception in order to keep our interpretation from being absurd, we should read the relevant statutes in a harmonious and common-sense manner to start with.

The question here is whether the Legislature intended Article 38.23 to supercede the directives of 51.095 because of a violation of 52.02(b). Practical problems that will arise if we so interpret Article 38.23 are relevant to this determination. And these potential problems lend further support to the idea that the purpose of the notice provision is to allay a parent's concern over the unexplained absence of his child rather than to allow the parent to interfere with custodial interrogation.

I would hold that an otherwise admissible statement is not subject to suppression because of a failure to notify parents under 52.02(b) prior to the execution of the statement. Rather than remanding this case to the Court of Appeals, we should reverse the Court of Appeals's decision and affirm the decision of the trial court. I respectfully dissent.

KELLER, Presiding Judge

Date filed: February 13, 2002


1. Chavez v. State, 9 S.W.3d 817, 822-823 (Tex. Crim. App. 2000)(Price, J. concurring).

2. Roy v. State, 608 S.W.2d 645, 651 (Tex. Crim. App. 1980).

3. The Court understands the State's position to be that the appellant's statement is admissible absent a causal connection between the violation of 52.02(b) and the taking of the statement. That is the State's fall-back argument. The primary position of the State, in the briefs of both the District Attorney and Amicus Curiae, is that Article 38.23 simply does not apply to a violation of 52.02(b).

4. 51.095 (emphasis added).

5. 51.12(b).