OPINION ON STATE’S MOTION FOR REHEARING
CLINTON, Judge.On original submission the Court found an essential element of the ordinance denouncing “loitering,” Section 23-9, Austin City Code of 1967, upon which the officer based his authority to arrest appellant, to be impermissibly vague. In its motion for rehearing the State concedes that the ordinance is “facially unconstitutional,” but argues that it is not “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws,” as the Court held it was in excluding fruits of the search of the person of appellant following illegal arrest.
The Court now reaffirms the finding and holding on original submission in that regard. We write only to address a contention advanced by the State with respect to the independent alternative holding of the Court on the exclusive basis of state law.1
Discerning that Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972) — from which the Court drew much support — cited two opinions of the Supreme Court of the United States for one of its holdings,2 the State would have it that Baker was “bottomed on the federally forged ‘Exclusionary Rule’;” ergo, the holding noted in the margin below is likewise circumscribed by the “good faith” doctrine of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Whatever merit the contention may have were we functioning solely under the exclusionary rule established against the states by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) we need not and do not decide today.
The prior opinion makes abundantly clear that the “Baker rule” is sound “as a matter of state law” and independently holds that “evidence seized incident to an arrest under an unconstitutional law is ex-cludable under Texas law.” Our own statutory exclusionary rule3 was enacted and its constitutional bases4 were adopted long before Mapp v. Ohio, supra, and Gonzales v. State, 148 Tex.Cr.R. 401, 187 S.W.2d 910 (1945), is but one example of their early *194viability.5 Today we confirm the continued vitality of the Texas exclusionary rule by rejecting the argument made by the State.
The State’s motion for rehearing is denied.
. Appellant has filed a motion to vacate grant of rehearing, invoking his construction of Court Rule 12(d). Though the original submission was to a panel of the Court, the importance of the issues raised warranted consideration by the full Court; it rendered the only opinion handed down. Rule 12(d) is not applicable. The motion to vacate is denied.
. Baker v. State, supra, at 449:
“The arrest of appellant being invalid, the trial court erred in overruling appellant’s motion to suppress the fruits of that search. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).”
. Article 38.23, V.A.C.C.P., along with a series of related measures by the Thirty ninth Legislature to protect against unconstitutional invasions of privacy, dates back to its original enactment in 1925. See Sherow v. State, 105 Tex.Cr.R. 650, 290 S.W.2d 754 (1927) making first application of our own exclusionary rule and marking the demise of Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524 (1922).
. Article I, §§ 9 and 19, Bill of Rights, Constitution of 1876.
. “This cause will be reversed and remanded because of the admission of the testimony relative to what was found upon appellant’s person, same having been found by virtue of his unlawful arrest without a warrant, Art. 727a, C.C.P. (1925)...”