Statute of Limitations in Texas Criminal Cases
If the State of Texas brings criminal charges after the applicable statute of limitations period expires then the issue can be raised in two different ways. First, the statute of limitations acts to bar the prosecution under Texas Code of Criminal Procedure Article 12.01. The crminal defense attorney can file a pre-trial motion to dismiss under article 27.08(2) of the Code of Criminal Procedure.
Secondly, the defense can request that the judge instruct the jury on the applicable statute of limitations during the trial. If the issue is raised at trial then the prosecutor for the District Attorney’s Office for the State of Texas has burden to prove beyond reasonable doubt that statute of limitations has not expired.
If the defense does not raise the issue at trial, the court might later rule that the issue was waived. The statute of limitations is a procedural rule “in the nature of a defense” that operates as an “act of grace for the benefit of potential defendants, a voluntary surrendering by the people of their right to prosecute.” Proctor v. State, 967 S.W.2d 840, 843 (Tex.Crim.App.1998). Therefore, the court of criminal appeals has concluded that the statute-of-limitations defense “is forfeited if not asserted at or before the guilt/innocence stage of trial.” Id.
Ex-Post Facto Grounds for the Statute of Limitations
The courts have also held that a defendant may raise a statute-of-limitations challenge on ex-post-facto grounds for the first time on appeal. Martinez v. State, 03-12-00273-CR, 2014 WL 1208774 (Tex. App. Mar. 20, 2014)(citing Phillips v. State, 362 S.W.3d 606, 616–17 (Tex.Crim.App.2011)). As the court explained:
“In that case, the court explained that when the legislature extends the statute of limitations after the limitations period has expired for a given offense, prosecution under the new statute of limitations for that offense would constitute an application of unconstitutional ex post facto law. Because there is a “categorical prohibition” against ex post facto laws, a defendant does not waive his right to challenge his conviction on ex-post-facto grounds by failing to object at trial.”
Id. (citations omitted).
Different Time Periods for the Statute of Limitations
The Texas Code of Criminal Procedure, Title 1, Chapter 12 provides the statute of limitation periods in felony and misdemeanor charges in Texas. Under Article 12.01, for felony offenses, except as provided in Article 12.03, felony indictments may be presented within certain limits, and not afterward.
Three (3) Year Statute of Limitations for All Other Felonies
For certain types of felony offenses, the applicable statute of limitations is three years. Under Article 12.01(7), unless the felony offense is otherwise listed, the applicable statute of limitations is three years from the date of the commission of the offense.
Five (5) Year Statute of Limitations
For certain types of felony offenses, the applicable statute of limitations is five years. Those offenses with a five year limitation period are listed in Article 12.01(4) five years from the date of the commission of the offense:
- robbery;
- theft;
- kidnapping (except as provided by Subdivision (5))
- burglary (except as provided by Subdivision (5));
- injury to an elderly or disabled individual (if not punishable as a felony of the first degree under Section 22.04, Penal Code);
- abandoning or endangering a child; and
- insurance fraud.
Seven (7) Year Statute of Limitations
Under Article 12.01(3), for certain types of felony charges, the statute of limitation period is seven (7) years from the date of the commission of the offense including:
- misapplication of fiduciary property or property of a financial institution;
- securing execution of document by deception;
- a felony violation under Chapter 162, Tax Code;
- false statement to obtain property or credit under Section 32.32, Penal Code;
- money laundering;
- credit card or debit card abuse under Section 32.31, Penal Code;
- fraudulent use or possession of identifying information under Section 32.51, Penal Code;
- Medicaid fraud under Section 35A.02, Penal Code; or
- bigamy under Section 25.01, Penal Code, except as provided by Subdivision (6);
Ten (10) Year Statute of Limitations
For many felony offenses in Texas, Article 12.01(2) provides for a ten (10) year statute of limitation period from the date of the commission of the offense. The list of crimes covered by this 10 year period include:
- theft of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate;
- theft by a public servant of government property over which he exercises control in his official capacity;
- forgery or the uttering, using or passing of forged instruments;
- injury to an elderly or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code;
- sexual assault, except as provided by Subdivision (1);
- arson;
- trafficking of persons under Section 20A.02(a)(1), (2), (3), or (4), Penal Code; or
- compelling prostitution under Section 43.05(a)(1), Penal Code.
Ten (10) Year Statute of Limitations from Victim’s 18th Birthday
A ten year statute of limitation period applies to certain types of criminal offenses as specified in Article 12.01(6). For those offenses, the statute of limitations is ten years from the 18th birthday of the victim of the offense for the following offenses:
- trafficking of persons under Section 20A.02(a)(5) or (6), Penal Code;
- injury to a child under Section 22.04, Penal Code;
- compelling prostitution under Section 43.05(a)(2), Penal Code; or
- bigamy under Section 25.01, Penal Code, if the investigation of the offense shows that the person, other than the legal spouse of the defendant, whom the defendant marries or purports to marry or with whom the defendant lives under the appearance of being married is younger than 18 years of age at the time the offense is committed.
Twenty (20) Year Statute of Limitations
For certain Texas criminal offenses, the applicable statute of limitation period is 20 years. Under Article 12.01(5), a twenty year statute of limitation period applies if the investigation of the offense shows that the victim is younger than 17 years of age at the time the offense is committed, 20 years from the 18th birthday of the victim of one of the following offenses:
- sexual performance by a child under Section 43.25, Penal Code;
- aggravated kidnapping under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or
- burglary under Section 30.02, Penal Code, if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with the intent to commit an offense described by Subdivision (1)(B) or (D) of this article or Paragraph (B) of this subdivision.
No Statute of Limitation Period Applies
The Texas legislature has determined that no statute of limitation period applies to certain felony offenses as listed in Article 12.01(1). Those felonies with no statute of limitations include:
- murder and manslaughter;
- sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code;
- sexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained;
- continuous sexual abuse of young child or children under Section 21.02, Penal Code;
- indecency with a child under Section 21.11, Penal Code;
- an offense involving leaving the scene of an accident under Section 550.021, Transportation Code, if the accident resulted in the death of a person;
- trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code; or
- continuous trafficking of persons under Section 20A.03, Penal Code.
Statute of Limitations as Bar to Prosecution
In many cases, the criminal defense attorney will argue that the prosecution is time-barred by the statute of limitations under the Texas law. The statute of limitations period depends on the type of charges brought against the accused. It is important to remember that the defense must look at the statute of limitation period that existed at the time of the limitation.
For certain offenses, the Texas Legislature has amended the statute to effectively extend the statute of limitations after the original statute of limitation period expired. See Phillips v. State, 362 S.W.3d 606, 612–13 (Tex.Crim.App.2011) (explaining that if statute of limitations is extended after offense committed, prosecution is constitutional only if original statute of limitations “had not already run before the law was changed”).
The Statute of Limitations for Misdemeanors in Texas
Article 12.02 sets out the applicable statute of limitation periods in misdemeanor cases.
- Under Article 12.02(a), an indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
- Under Article 12.02(b), a complaint or information for any Class C misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
When calculating or computing the time the day on which the offense was committed and the day on which the indictment or information is presented shall be excluded from the computation of time as provided in Article 12.04.
Finding an Attorney for Statute of Limitation Defenses
If you are seeking a criminal defense attorney for any felony or misdemeanor charge in Houston or The Woodlands in Harris County or Montgomery County, Texas, then contact Horak Law to discuss your case. Matt Horak is experienced in filing and litigating a motion to dismiss when the applicable statute of limitation bars the prosecution.
