In the Court of Criminal 

Appeals of Texas

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No. PD-0388-21

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SILAS GRAHAM PARKER,

Appellant,

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review

From the Third Court of Appeals

Hays County

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YEARY, J., filed a concurring opinion.

The Court today construes Article 18.01(b) of the Code of Criminal 

Procedure to permit so-called “anticipatory” search warrants. TEX. CODE 

CRIM. PROC. arts. 18.01(b). But as part of its analysis, the Court also 
PARKER – 2

seems to construe Article 18.01(c) to prohibit “anticipatory” evidentiary 

search warrants conducted pursuant to Article 18.02(10). TEX. CODE 

CRIM. PROC. arts. 18.01(c), 18.02(10). Because I find the latter 

construction questionable and, in any event, utterly unnecessary, I only 

concur in the result the Court reaches.

ARTICLE 18.01(b)

Article 18.01(b) does not itself explicitly speak to the question of 

anticipatory warrants.1 It does not say, for example, that “this provision 

should be understood to permit a magistrate to issue a warrant even 

upon a representation that there is probable cause to believe that the 

thing to be searched for will be located at the place sought to be searched 

on a particular date, contingent upon the fulfillment of a particular 

triggering event.” Still, on balance, I agree that anticipatory warrants 

are permissible under the statute—if only because what the statute 

actually requires is that “probable cause does in fact exist” for the 

warrant’s issuance, and not necessarily that the thing to be searched for 

be located at the place to be searched as of the time that the warrant 

issues. 

As the United States Supreme Court observed in United States v. 

Grubbs, 547 U.S. 90, 95 (2006), “[b]ecause the probable cause 

requirement looks to whether evidence will be found when the search is 

conducted, all warrants are, in a sense, ‘anticipatory.’” That such 

anticipatory probable cause is contingent upon a triggering fact is 

1 In relevant part, Article 18.01(b) provides that “[n]o search warrant 

shall issue for any purpose in this state unless sufficient facts are first 

presented to satisfy the issuing magistrate that probable cause does in fact 

exist for its issuance.” TEX. CODE CRIM. PROC. art. 18.01(b).
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relevant only to the extent that the probable cause must also embrace 

the triggering fact itself. Id. at 96. But the parties have not made the 

existence of a triggering fact an issue in this case. So, the only issue the 

Court properly addresses today is whether Article 18.01(b) permits the 

issuance of anticipatory search warrants.

ARTICLE 18.01(c)

The Court bolsters its conclusion that Article 18.01(b) permits 

anticipatory search warrants, however, by contrasting the language of 

that article with the language found in Article 18.01(c).2 The latter 

provision prohibits the issuance of an evidentiary search warrant 

“unless” there is probable cause to believe, among other things, “that the 

property or items constituting evidence to be searched for or seized are 

located at or on the particular person, place, or thing to be searched.” 

TEX. CODE CRIM. PROC. art. 18.01(c) (emphasis added). Based upon this 

language, the Court fashions one of those arguments that suggests:

“when the Legislature wishes to plainly require something, here is an 

2 Article 18.01(c) applies specifically to evidentiary search warrants and 

provides, in relevant part, that:

 [a] search warrant may not be issued under Article 18.02(10) 

unless the sworn affidavit required by subsection (b) sets forth 

sufficient facts to establish probable cause: (1) that a specific 

offense has been committed, (2) that the specifically described 

property or items that are to be searched for or seized constitute 

evidence of that offense or evidence that a particular person 

committed that offense, and (3) that the property or items 

constituting evidence to be searched for or seized are located at 

or on the particular person, place, or thing to be searched.

TEX. CODE CRIM. PROC. art. 18.01(c).
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example showing that it knows how to do so.”3 Majority Opinion at 9–

10. I do not buy it.

It is not even remotely clear to me that Article 18.01(c)—itself—

plainly and categorically bars anticipatory evidentiary search warrants. 

The notion seems to be that, because the language is couched in the 

present tense (“are located”), it must mean that the evidentiary items 

“are” already “located” at the place to be searched as of the time that the 

warrant issues—never mind the Supreme Court’s observation that all

search warrants are, in a sense, anticipatory. Grubbs, 547 U.S. at 95. 

There are at least a couple of reasons to question this notion. 

First of all, apart from Article 18.01(b)’s use of the present tense, 

nothing else in that provision expressly requires that the items to be 

searched for must be located at the place to be searched as of the time 

the warrant issues. Use of the present tense in a Massachusetts searchwarrant statute (“are concealed”) did not prevent that state’s highest 

court from long ago construing it to permit anticipatory search warrants. 

Commonwealth v. Soares, 384 Mass. 149, 154–55, 424 N.E.2d 221, 225 

(1981). A court examining our statute in the light of that decision might 

conclude that Article 18.01(b) only requires probable cause that the 

items of evidence “are located” at the place to be searched as of the time 

it is “to be searched for or seized”—at the time it is “to be searched.” TEX.

CODE CRIM. PROC. art. 18.01(c)(3). After all, it bears repeating that “all 

3 See, e.g., State v. Ross, 573 S.W.3d 817, 823 (Tex. Crim. App. 2019) 

(“We have often said that when the Legislature wishes to attach a 

particularized culpable mental state to an element of an offense, ‘it knows how 

to do so.’ . . . But it did not do so.”) (citing Rodriguez v. State, 538 S.W.3d 623, 

629 & n.36 (Tex. Crim. App. 2018)).
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[search] warrants are, in a sense, ‘anticipatory.’” Grubbs, 547 U.S. at 95. 

But perhaps more importantly, there is a statute-based reason to 

conclude that Section 18.01(c)’s use of the present tense (“are located”) 

is not determinative, by itself, of whether it permits anticipatory 

evidentiary search warrants. Subsection (c) was added to Article 18.01 

in 1977 by our 65th Legislature. Acts 1977, 65th Leg., ch. 237, § 1, p. 640, 

eff. May 25, 1977. The Code Construction Act thus applies to guide our 

construction of that amendment. See TEX. GOV’T CODE § 311.002(2) 

(providing that the Code Construction Acts “applies to . . . each 

amendment . . . of a code or code provision by the 60th or a subsequent 

legislature”). 

The Code Construction Act provides that “[w]ords in the present 

tense include the future tense.” TEX. GOV’T CODE § 311.012(a). Reading 

the present-tense (“are located”) also to embrace the future-tense (“will 

be located”) would undermine the seeming contrast that undergirds the 

Court’s comparative analysis of the two provisions. Section 18.01(c) 

would then be just as readily susceptible to a construction that it permits

anticipatory search warrants as is Section 18.01(b).

All of this is not to say that I believe the Court has unquestionably 

misconstrued Article 18.01(c) in order to draw a contrast to Article 

18.01(b). But it very well may have. And there is no compelling reason 

to construe it here at all—and for the first time, at that4—much less to 

4 The Fourteenth Court of Appeals seems to have observed, albeit in 

dicta, that Article 18.01(c) prohibits anticipatory search warrants. Mahmoudi 

v. State, 999 S.W.2d 69, 71–72 (Tex. App.—Houston [14th Dist.] 1999, pet. 

ref’d). But as far as I know, this Court has never resolved the question. See 

State v. Toone, 872 S.W.2d 750 (Tex. Crim. App. 1994) (declining to reach the 

issue of whether Article 18.01 permits “anticipatory” search warrants).
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risk unnecessarily misconstruing it. We should save the question of the 

proper construction of Article 18.01(c) for a case in which its proper 

construction is actively in issue. We should not decide whether Section 

18.01(c) prohibits anticipatory search warrants for evidence unless and 

until it is absolutely necessary to do so in order to resolve a case that 

squarely presents that question.

I respectfully concur in the result.

FILED: July 27, 2022

PUBLISH