Republican State Rep. Wes Virdell of Brady filed a measure to further protect private property.
House Bill 1379 would stop game wardens and Parks and Wildlife peace officers from entering private property without warrants.
“When you talk to the average Texan, and you ask what the Fourth Amendment means or what the state search and seizure provision in Article 1, Section 9 means, their gut instinct is going to be ‘If the government wants to search my property, it has to get a warrant,’” said Joshua Windham, a senior attorney at the nonprofit Institute for Justice, which focuses on constitutional property rights.
“For 96.6% of all land in Texas, that is not true right now. So, we’re talking about an issue that has massive stakes for millions of people all over Texas,” Windham continued.
Windham referred to the open-fields doctrine, created a century ago by the U.S. Supreme Court using a strict, literalist interpretation, which stated, “the protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ does not extend to open fields.” Protections apply only to one’s home and curtilage–the immediately surrounding enclosed area.
SCOTUS upheld the doctrine in 1967, 1984, and 2013 “because such fields are not enumerated in the Amendment’s text.”
However, Texas’ Constitution slightly differs, stating “persons, houses, papers, and possessions.”
“The word ‘possessions’ appears in sixteen state constitutions—including the Tennessee Constitution, where we just won the open fields case—and at the founding, in every state’s constitutional history, when the word ‘possessions’ was adopted, it was widely understood to refer to private land,” said Windham. “Unfortunately, the [Texas] courts have not done that, but that’s what the text means.”
Accordingly, seven other state courts—Mississippi, Montana, New York, Oregon, Tennessee, Vermont, and Washington—have already rejected the doctrine on state constitutional grounds. Louisiana, Pennsylvania, and Virginia also have pending lawsuits. The IJ has more in the works and offers model legislation to address the open fields doctrine.
Although HB 1379 would not amend Texas’ Constitution, it would limit some state overreach.
“Law enforcement officers within the state utilize the game wardens to go on the property to check on stuff because then they can skirt around the Fourth Amendment and the warrant requirements,” explained Virdell. “Game wardens go in there under the guise of ‘We’re checking on game,’ but they’re really there to check on things that other law enforcement suspect and so they can bypass the warrant process.”
Even so, HB 1379 would allow game wardens to enter private property with owner permission, under probable cause, warrant execution, or while determining an emergency.
Windham believes Virdell’s bill doesn’t go far enough.
“The problem without a warrant is that the officer is the judge of whether he has probable cause, and so unless you have a judge reviewing that determination and saying, ‘I agree that there’s probable cause here,’ there’s still a huge potential for abuse,” said Windham.
However, he also acknowledged that he knew of no prior legislation addressing the doctrine.
“While it’s a good thing that Virdell’s bill imposes some restrictions, we think that the warrant requirement is extremely important and that those protections should apply not just when game wardens are searching private land but when all government officials are.”
HB 1379 brings the state more in line with the Republican Party of Texas’ priority to End Federal Overreach and Plank 199: protecting private property.
“We’ve got a lot of support, including from law enforcement officers and from civilians,” said Virdell. “Most of the law enforcement officers have stated that they, too, believe that game wardens should have to adhere to the same Fourth Amendment that they have to adhere to.”
However, Virdell expressed concerns about the bill passing the Senate.
“I believe this is going to die in the Senate,” said Virdell. “I like Pete Flores, but with him being the former head of the game wardens … my guess is this bill is going to die in that committee if we pass it out of the House, and I think there’s a really good chance we pass it out.”
State Sen. Pete Flores (R-Pleasanton) declined to comment.
“The value of having legislation in this area is that the courts have not done their job, and so when the courts dropped the ball, it’s up to the legislature to come in and say, ‘Our view is that people in Texas are entitled to this constitutional protection,’” said Windham.
Virdell and Windham both suggested citizens call their legislators to pass H.B. 1379. Virdell said Constitutional Carry would have died in 2021 had the public not flooded the Senate with calls.
“The way that we’re going to win this is putting a lot of public attention on it. If we put enough attention on it, it’ll force the Senate to take it up, have an actual hearing on it, and take a vote on it,” said Virdell. “Government is controlled by those who show up. That’s what we need. We need people to show up and have their voices heard.”
