I believe that the Court both overstates and understates the requirements of stare decisis in this case. A quick review of the basics is in order:

Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent "is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right." Nevertheless, when governing decisions are unworkable or are badly reasoned, "this Court has never felt constrained to follow precedent." Stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." This is particularly true in constitutional cases, because in such cases "correction through legislative action is practically impossible." Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such as the present one involving procedural and evidentiary rules. ⁽¹⁾

Because this Court usually fails to differentiate the kinds of law that are before it, it usually overstates the role of stare decisis by parroting platitudes from dissimilar cases. As the preceding paragraph makes clear, cases of criminal procedure are not like cases of substantive law. And this Court makes no substantive law; it has only a limited role in making procedural and evidentiary law through its opinions.

I say that this Court does not make substantive criminal law because there is no common law of crimes in Texas.

While other States may imply duties or derive them from the common law, under the laws of this State notice of an offense must invariably rest on a specific statute. This notion is firmly rooted in the evolution of Texas criminal jurisprudence. Since the days of the Republic and early statehood, Texas courts have been prohibited from allowing common law duties to form the basis of criminal sanctions. See, e.g., Republic v. Bynam, Dallam 376 (1840) (Texas statutes intolerant of constructive offenses and constructive punishments); Cain v. State, 20 Tex. 355 (1857) (prosecution is prohibited for what was an offense at common law, but not made penal by our statutes). That longstanding prohibition is specifically embodied in our Penal Code, which provides that "conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute." Penal Code, § 1.03(a). ⁽²⁾

The power to create and define offenses which rests within the sound discretion of the legislative branch of government, necessarily includes the power to establish and define the defenses. ⁽³⁾ When a statutory defense applies to the facts of a criminal case, a non-statutory defense is not available. ⁽⁴⁾

Furthermore, because the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction. The term defense should not be used for an issue that has not been specifically labeled as such by the Legislature. ⁽⁵⁾

Therefore this Court cannot create, much less alter, a common law of criminal offenses or defenses.

The common-law jurisprudence of this Court is limited to evidentiary and procedural matters -- and not much of that. "As a general matter, … Texas criminal procedure has been characterized by legislative control over substance." ⁽⁶⁾ This includes a number of statutory rules of evidence, while most of the rest of our evidence law is codified in our Rules of Evidence. Most of our cases call on us to construe and apply the provisions of constitutions and statutes and rules. Today's case is such a one.

The general principles of stare decisis for "rules of law" that the Court considers ⁽⁷⁾ have little, if anything, to do with this case because we have not made a rule of law. We have only construed the rule the legislature made.

When it comes to construction of criminal-procedure statutes, the demands of stare decisis may be even lower than in cases of court-made procedure because the legislature sometimes can correct a wrong decision. This is why we often attach importance to the legislature's failure to amend a statute that we have construed. The notion is that we must have got it right, since the legislature could easily have acted if we got it wrong.

The Court points out that legislative inaction does not necessarily equal legislative approval. ⁽⁸⁾ No one could argue the opposite, that is, that legislative action necessarily equals legislative approval. A court must examine the statute, the judicial construction, and the legislative response.

The Court relies on a concurring opinion that quotes two opinions of the United States Supreme Court. ⁽⁹⁾ If one reads those opinions, rather than the three sentences that are quoted, one can get an idea of the factors that can be considered.

In Helvering v. Haddock, ⁽¹⁰⁾ the Supreme Court did not renounce its prior construction of a statute as we do today. The problem was not with the first construction; it was with two later opinions that were contrary to the principle of the first. The Court adhered to the construction it had first made, and rejected the argument that Congress had tacitly approved the two later cases.

Our problem then is not that of rejecting a settled statutory construction. The real problem is whether a principle shall prevail over its later misapplications. Surely we are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this Court's own conception of it. We therefore reject as untenable the diversities taken in the [two later] cases in applying the [earlier case's] doctrine -- untenable because they drastically eat into the principle which those cases professed to accept and to which we adhere. ⁽¹¹⁾

In terms of the present statute, the analogous situation would be that after our Roberts decision we had held that the statute did not authorize the State to appeal an order suppressing contraband because contraband is not evidence. Legislative inaction would not prevent us from overruling the later holding and returning to our original construction.

The other case from which the majority quotes is Girouard v. United States, ⁽¹²⁾ in which the Court overruled three prior decisions that the oath of citizenship required the immigrant to agree to bear arms for the United States. The statute contained no such language. Bills to overrule those decisions had been introduced in Congress but never reported out of committee. The Court declined to attach importance to the statute's not being amended because the case could be resolved by reference to an action that Congress had taken later.

But for us, it is enough to say that since the date of those cases Congress never acted affirmatively on this question but once and that was in 1942. At that time, as we have noted, Congress specifically granted naturalization privileges to non-combatants who like petitioner were prevented from bearing arms by their religious scruples. That was affirmative recognition that one could be attached to the principles of our government and could support and defend it even though his religious convictions prevented him from bearing arms. And, as we have said, we cannot believe that the oath was designed to exact something more from one person than from another. Thus the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940. ⁽¹³⁾

There is no ready analogy for the present statute because the decision that the Supreme Court overruled had added a requirement to the statutory language, while our Roberts decision declined to add "or excluding" to the statute. The point is that the Supreme Court opinion from which the majority extracts a quote today was decided on the basis of subsequent legislative action, not inaction. It is not helpful for deciding the case before us now.

To my mind, the evaluation of legislative silence should take into account whether the judicial construction increased or decreased the scope of the statute, and the difficulty of a legislative correction. A construction that decreased the scope of a statute is more defensible than one that increased its scope, for the same reason that remittitur is more defensible than additur; that is, the verdict or statute that is under review carries approval of every lesser component that is included in the "face value," but there has been no such approval of any greater value. And if the statute could easily be set right by clarifying language, the legislative choice not to do so has more significance for me.

In 1996 we held that Code of Criminal Procedure article 44.01's authorizing an interlocutory appeal by the State from a ruling that grants a "motion to suppress" evidence does not extend to all rulings that exclude evidence. We said that "suppressing" evidence connoted a ruling that the evidence was illegally obtained, while "excluding" evidence connoted a ruling that the evidence was inadmissible for other reasons. ⁽¹⁴⁾

Today the Court says this holding was wrong because the legislature "modeled art. 44.01 after the corresponding federal provision generally," ⁽¹⁵⁾ a statute that permits an appeal by the government from suppression or exclusion of evidence. I want to point out four things. First, drafting a statute to apply only to "suppressing" is an odd way of modeling on the federal statute that specifies both "suppressing" and "excluding." ⁽¹⁶⁾ Second, our 1996 decision was based on the language of the statute, which is more important than the intentions and interpretations of witnesses who supported the act, which are the primary support for today's decision. "It is the law that governs, not the intent of the lawgiver," ⁽¹⁷⁾much less the intent of the lawgiver's committee witnesses. But this is only to rehash the 1996 decision of the Court.

In 2002 the more important points are my third and fourth: Today's construction of the ambiguous word increases the scope of the statute, applying it to "excluding" evidence as well as to "suppressing" it. And if that is the correct scope of the statute, the legislature had but to amend the statute by inserting the words "or excluding." Three sessions of the legislature have intervened since our decision, with no action. In this case, that is significant.

If this case were the opposite (if the statute had read "suppressing or excluding evidence," and we had held that it did not apply to the excluding of evidence) legislative inaction might mean little or nothing. What could the legislature do to express more clearly that the statute applied to the excluding of evidence? But when the statute says it applies only to "suppressing" evidence and this Court held that "suppressing" does not mean every "excluding" of evidence, the remedy is quick and easy.

If we have misconstrued a statute that is stated clearly, what can the legislature do? Reenact the statute with the additional phrase, "and we really mean it"? When we have misconstrued a criminal-procedure statute that is unambiguous, stare decisis has its least force. In such a case we should be more free to overrule our earlier decision. A recent example was our reconsideration of the statute that limited appeals from negotiated pleas of guilty. The statute said that before a defendant in such a case could appeal, "he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial." ⁽¹⁸⁾ In 1996 we held that defendants in such cases who neither had permission of the trial court nor were appealing matters raised by written pre-trial motions, could appeal the voluntariness of their pleas. ⁽¹⁹⁾ Our addition of this third class of appeals was contrary to the clear language of the statute. The legislature would have been hard pressed to amend the statute to make it more clear than it was, since it already said that only two classes of plea-bargained convictions could be appealed. I agreed with the Court that in such a case, stare decisis notwithstanding, the decision would no longer be followed. ⁽²⁰⁾

If we were considering the meaning of Article 44.01(a)(5) for the first time, I might hold that the statute means what the Court says today. But to do so after the legislature has failed three times to "correct" our construction is contrary, not so much to the rule of stare decisis as to the Division of Powers Article of the Constitution. ⁽²¹⁾ Are we not effectively amending this statute to read as its federal counterpart reads, when the Legislature that enacted it did not do so and three successive Legislatures have chosen not to do so? I do not think this action is compelled by the language of the statute, and I would not undertake it.

The Court's other argument that "suppress evidence" means "suppress or exclude evidence" is by reference to Code of Criminal Procedure article 28.01, which provides the procedure for a pretrial hearing like the one that was held in this case. Section 1 of the article says, "The pretrial hearing shall be to determine any of the [eleven] following matters: … (6) Motions to suppress evidence." The Court reasons thus: pretrial hearings are to determine motions to suppress evidence; the motion that was filed in this case was decided at a pretrial hearing; therefore it must have been a motion to suppress evidence. ⁽²²⁾

If the Court's argument were valid, there would be an equally valid argument that would rely on Roberts rather than overruling it: Pretrial hearings are to determine motions to suppress evidence; this was a motion to exclude evidence, not to suppress evidence (Roberts v. State); therefore the trial court erred to decide the motion at a pretrial hearing. Neither argument is valid, because the first premise is insufficient to justify the conclusion. Although pretrial hearings are for motions to suppress evidence (and the other matters that are listed in Article 28.01, section 1), they are not for only those matters. There are two reasons. On its face, the statutory list is not exclusive, so the pretrial hearing is not limited to the eleven items on the list. ⁽²³⁾ Even if it were exclusive, one item on the list is "(2) Pleadings of the defendant," which include "any other motions or pleadings permitted by law to be filed." ⁽²⁴⁾ It was, therefore, proper for the appellee to file and the court to decide a motion to exclude, not suppress, evidence. ⁽²⁵⁾ So the Court's conclusion that the pretrial motion must be a motion to suppress is invalid.

I confess that the Court's holding, that Article 44.01(a)(5) authorizes an interlocutory appeal of a decision to exclude evidence, is tempting. The five assistant district attorneys who are quoted in the opinion ⁽²⁶⁾ made strong arguments why the State should be allowed to appeal pretrial rulings excluding evidence. But the statute that was enacted did not allow it, and it still does not. We have no authority to change the statute. I respectfully dissent.

En banc.

Delivered February 6, 2002.

Publish.

1. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991) (citations omitted).

2. Billingslea v. State, 780 S.W.2d 271, 275 (Tex. Cr. App. 1989).

3. Willis v. State, 790 S.W.2d 307, 314 (Tex. Cr. App. 1990).

4. See id. at 315.

5. Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Cr. App. 1998).

6. George E. Dix & Robert O. Dawson, 40 Texas Practice -- Criminal Practice and Procedure § 0.01 (2d ed. 2001).

7. See ante at 13-14.

8. Ante at 16.

9. See ibid.

10. 309 U.S. 106 (1940).

11. Id. at 122.

12. 328 U.S. 61 (1946).

13. Id. at 70.

14. See Roberts v. State, 940 S.W.2d 655 (Tex. Cr. App. 1996).

15. Ante at 6.

16. "An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information …." 18 U.S.C. § 3731.

17. Antonin Scalia, A Matter of Interpretation 17 (1997).

18. Act of June 10, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen. Laws 940, repealed in part by Act of June 14, 1985, 69th Leg., R.S., ch. 685, §§ 1 & 4, 1985 Tex. Gen. Laws 2472 (authorizing Court of Criminal Appeals to promulgate rules of procedure and conditionally repealing articles of the Code of Criminal Procedure), replaced by Tex. R. App. P. 25.2(b).

19. Flowers v. State, 935 S.W.2d 131 (Tex. Cr. App. 1996).

20. See Cooper v. State, 45 S.W.3d 77 (Tex. Cr. App. 2001).

21. "The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted." Tex. Const. art. II, § 1.

22. See ante at 12-14.

23. See Dix & Dawson, supra note 6, at § 29.12.

24. "The pleadings and motions of the defendant shall be: … (8) Any other motions or pleadings that are by law permitted to be filed." Tex. Code Crim. Proc. art. 27.02.

25. See Dix & Dawson, supra note 6, at § 29.12.

26. See ante at 6-7, nn. 8 & 9.