           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1529-10



                     MARK ALEXANDER FLEMING, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SECOND COURT OF APPEALS
                         DENTON COUNTY

       K EASLER, J., filed a concurring opinion in which H ERVEY and C OCHRAN, JJ.,
joined.

                              CONCURRING OPINION

       I agree with the Court’s determination to remand. But I write separately to express

my opinion about Texas’s due course of law provision. To date, this Court has not rendered

an opinion on the scope of the substantive rights and protections afforded by the due course

of law provision. However, this Court and the Texas Supreme Court have interpreted the due

course of law provision to provide the same procedural rights and protections as the Due
                                                FLEMING CONCURRING OPINION—2
Process Clause.1 Therefore, cases from the Supreme Court of the United States have guided

Texas issues involving procedural due course of law.2 Given this longstanding precedent,

I see no reason to reach a contrary conclusion with respect to substantive rights and

protections.

       Notably, former Chief Justice Phillips of the Texas Supreme Court discussed

substantive due process under the Texas Constitution in his dissenting opinion in Lucas v.

United States.3 He observed that most Texas decisions addressing substantive due process

have relied on federal authorities or have regarded Texas’s due course of law provision to

be the same as its federal analog.4 Only a minority of cases have suggested that the due

course of law provision “has any independent meaning.”5 Thus, “it is not firmly established

in Texas jurisprudence.”6 With the Texas Supreme Court’s precedent on substantive due



       1
          Rose v. State, 752 S.W.2d 529, 536-37 (Tex. Crim. App. 1987), superceded by
statute; Thompson v. State, 626 S.W.2d 750, 753 (Tex. Crim. App. 1981); see Ex parte
Quintanilla, 207 S.W.2d 377, 378-79 (Tex. Crim. App. 1947); see generally Huntsman v.
State, 12 Tex. Ct. App. 619, 625-50 (Tex. Ct. App. 1882); University of Texas Medical
School v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (citing Mellinger v. City of Houston, 3
S.W. 249, 252-53 (Tex. 1887)); see also National Collegiate Athletic Association v. Yeo,
171 S.W.3d 863, 867-68 (Tex. 2005).
       2
        Rose, 752 S.W.2d at 536-37; Huntsman, 12 Tex. Ct. App. at 634; Than, 901
S.W.2d at 929.
       3
           757 S.W.2d 687, 712-13 (Tex. 1988) (Phillips, C.J., dissenting).
       4
           Id. at 712.
       5
           Id. at 713.
       6
           Id. at 714.
                                                FLEMING CONCURRING OPINION—3
process firmly established, it would make no sense to reach an decision that conflicts with

our sister court.

       I also agree with former Presiding Judge McCormick’s dissent in State v. Ibarra: “the

federalization of this State’s criminal law and the vast expansion of federal power into areas

that traditionally had been reserved solely to the states preempt any ‘independent’ state

constitutional analysis.”7 The practical implications of this approach noted by Presiding

Judge McCormick are highly persuasive. Law enforcement and defendants would be aware

of the applicability and scope of the protections and rights, and appellate courts would not

have to grapple with different burdens and frameworks.8

       With these comments, I join the Court’s opinion.




DATE DELIVERED: June 15, 2011
PUBLISH




       7
           953 S.W2d 242, 249 (Tex. Crim. App. 1997) (McCormick, P.J., dissenting).
       8
           Id. at 250.
