Is Texas Tough on Crime But Soft on Criminal Procedure?

Adam Gershowitz, University of Houston Law Center

Abstract

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, discovery obligations on prosecutors, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shockingly, these criminal procedure guarantees come almost entirely from Texas statutes approved by the Legislature, not activist rules imposed by judges. This article explores Texas’s reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on crime but generous on criminal procedure.