2015.54: Statute of Limitations Law Geekery


In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015  D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7). ((You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don’t think that’s right)) So at first blush it would appear that the 33.021(c) prosecution is barred by limitations. ((Hooray!))

The statute of limitations is tolled during the pendency of an indictment, information, or complaint. ((Booo!))

But there is no charge pending while the defendant is on probation. ((Hooray!))

But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason. ((Booo!))

But if there was a charge pending, it was not a 33.021(c) charge. ((Hooray!))

But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.” ((Booo!))

So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.

In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.

Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.

Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.

If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.

But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.


6 responses to “2015.54: Statute of Limitations Law Geekery”

  1. So I guess we just need to eliminate 33.021(c) as an alternative offense because it is un-constitutional too.

    [Footnote: Hooray]

    • I hope that those who are still pleading their clients to 33.021(c) without raising the constitutional issue* will be really embarrassed at some point in the next year.

      *Boooo!

  2. I believe that in ex parte Slavin the CCA ruled that an indictment that is fundamentally defective could not toll the statute of limitations. If a law was declared facially unconstitutional so that it was never valid and is looked upon as never having existed could it be argued that the indictment citing this invalid statute was defective so as not to toll the statute of limitations?

    • After a little more research I realized I erred in my statement regarding Slavin. I guess my question is, if a statute is void ab initio it is my understand that it is as if it was never in existence. If that is true, could the case be made that the indictment under the non-existent statute is also non-existent and therefore does not toll the statute of limitations?

  3. There just seems to be sort of a contradiction. For example, let’s say the person in your example above had been sentenced to 2 years of confinement, served his two years, and then gets his case dismissed after his sentence has been discharged. It would seem that charging him with something else would violate the double-jeopardy principle. However, my guess is they would get around that by saying that the original charge was void and as if it never happened so they can charge him again. If that is the case, couldn’t one argue that the indictment was void and as if it never happened and therefore shouldn’t toll the statute of limitations? It doesn’t seem like the indictment should be treated as if it existed under one scenario and not the other.

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