concurring.
The genesis of Article 38.23, Y.A.C.C.P., is former article 727a, derived from Acts 1925, 39th Leg., Ch. 49, p. 186, § 1 (Act).
The Act was preceded by two significant judicial decisions: one, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914);1 the other, Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524 (1922).2 One need not browse among files in the Legislative Research Library to find indicia of legislative intent; the Legislature expressed its own determination by declaring in terms admitting no exception, viz:
“The fact that there has been used against citizens of this State evidence obtained in violation of the constitution of the State, and that there is now no statute expressly forbidding the same, creates an emergency and an imperative public necessity....”
Act, supra, § 2.3
Contrary to the notion expressed by Judge Miller in his concurring opinion at 1-*8012, that “mere absence from the Code does not serve to emasculate a doctrine that previously existed in the common law,” this Court would certainly be “superlegis-lating” (his term) to introduce a “doctrine” that was not incorporated explicitly or implicitly when in 1914 the Supreme Court created the federal exclusionary rule in Weeks, supra, or when in 1925 our Legislature created the statutory exclusionary rule in the Act. Judge Miller does not demonstrate that the “doctrine” was ever known to the common law of England, and by his own admission the Supreme Court did not adopt and apply it until 1984 in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
Furthermore, the Act was designed to implement protections guaranteed first and foremost by Article I, § 9 of the Texas Constitution. See emergency clause, ante. The fact remains that Judge Miller has yet to cite any opinion of this Court construing Article 38.23 to admit exceptions to those protections, and unless and until there is one of significance, the rule of statutory construction for which his opinion opts, in n. 2, at 802, has no application.
With those observations, I join the opinion and judgment of the court.
. Weeks v. United States, supra, originated the exclusionary rule in federal courts, viz:
“We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States, acting under color of his office, in direct violation of the constitutional rights of the defendant; that having made seasonable application for their return, which was heard and passed on by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed."
Id., 232 U.S. at 398, 34 S.Ct. at 346, 58 L.Ed. at 657 (emphasis here and throughout this opinion is mine unless otherwise indicated).
. "We believe that nothing in section 9, art. 1 of our Constitution, supra, can be invoked to prevent the use in testimony in a criminal case of physical facts found on the person or premises of one accused of crime, which are material to the issue in such case, nor to prevent oral testimony of the fact of such finding which transgresses no rule of evidence otherwise pertinent.
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[W]hen the question is evidence of the possession of the accused of any property whose custody, ownership, or creation by him gives it weight in solving a crime, the method or manner by which such proferred testimony came before the court cannot be raised by any attempted application of section 9, art. 1, supra, but may only be determined by rules of evidence which are general and have become fixed in the wisdom of the courts of all civilized countries. If there be sound objection to testimony otherwise material which has been found on the person or in the possession or home of the accused, such objection must rest on some better reason than that the accused did not consent to its taking or to the entry of such premises."
Id., 247 S.W. at 529.
. The same Legislature passed a related bill, section 1 of which reproduced Article I, § 9; section 2 made it a penal offense for “any person or peace officer, or state ranger, to search *801the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law;" section 3 authorized a fine not to exceed $500, or confinement for not more than six months, or both. The emergency clause relied on “The fact that the people are not secure in their persons, homes, papers and possessions from unlawful and unreasonable seizures and searches[.]” Acts 1925, 39th Leg., Ch. 149, p. 357.
That bill became former articles 4a and 4b, C.C.P.1925. It was repealed in 1929, however. But it has been noted that "despite the flood of reversals under former article 727a, the legislature refused to repeal the exclusionary rule and instead reenacted it with only a minor narrowing of its scope.” Dawson, Stater-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 TexX.Rev. 191, at 201-202.