# Osban v. State

> Court of Criminal Appeals of Texas · September 17, 1986 · 726 S.W.2d 107

URL: https://www.frixlaw.com/law-library/cases/9645556

## Case

- **Full name:** Rusty Leon OSBAN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 17, 1986
- **Citations:** 726 S.W.2d 107; 1986 Tex. Crim. App. LEXIS 819
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** Tom G. Davis
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Heitman v. State, 1991 Tex. Crim. App. LEXIS 160 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645556

## How later opinions describe it (automated extraction)

- holding that search incident to arrest valid under federal constitution is equally valid under Texas Constitution

## Opinion text

MILLER, Judge,
dissenting.
While I join the dissenting opinion of Judge Clinton, it seems important to spell out the devastation to our Texas jurisprudence caused by today’s majority opinion. By the simple expedient of casting five votes in favor of the holding in Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983), dealing with Art. I, § 9 of the Texas Constitution (search and seizure), they have abrogated our right to interpret our own Constitution and have bound us to allowing the United States Supreme Court to do so.
Brown, supra, relied on by the majority as authority for this abominable policy decision, was a plurality opinion that was the first to espouse the idea that we should give up our right to interpret Art. I, § 9, supra differently than the United States Supreme Court might see fit to interpret the Fourth Amendment of the United States Constitution. The Brown plurality decision was, by this pronouncement, a radical departure from past practice and precedent. True, throughout our history we have often interpreted Art. I, § 9, supra, in harmony with similar interpretations of the United States Supreme Court vis-a-vis the Fourth Amendment. It can safely be said that virtually every state in the Union has followed this practice. But to abdicate our ability to interpret our Constitution as we see fit is a far different matter. To justify such abdication solely on the basis of our frequent harmonious interpretation is ludicrous. There is no precedent for same and I dare say no real justification, except perhaps a philosophical one.
I suppose this action would be more palatable if Texas were originally one of those territories whose only law prior to statehood was the U.S. Constitution. At least then one could argue that the framers intended to exactly mirror in our Constitution’s search and seizure section what our country’s founding fathers accomplished in the Fourth Amendment.
Of course Texas was never a territory. We were an independent nation from 1836 to 1846 and we joined the Union then by *120 treaty — one sovereign to another. After joining the Union we carried over the written principles upon which our Country (Texas) was founded into the principles of government of our State. As such we have and we pride ourselves in having our own concepts of what our Constitution means to us. To willingly vest interpretation of any part of our Constitution in a court composed of justices who are neither elected by the people of Texas nor necessarily nominated for office by a president the people of Texas elected, and who certainly are not accountable to the people of Texas, is a genuine travesty of Texas justice.
I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645556. Public record. Not legal advice.