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Texas Court of Criminal Appeals Announces Correct Computation of Time for Purposes of Determining When Statute of Limitations Has Run for Returning Indictment

by Douglas Ankney

The Court of Criminal Appeals of Texas explained the proper procedure for computing periods of time for purposes of determining the end date of a statute of limitations (“SOL”) and held that the two-year SOL period for an assault allegedly committed on July 7, 2019, expired on July 8, 2021.

On July 9, 2021, Lucas Vieira was indicted for an aggravated assault by threat while acting as a public servant that occurred on July 7, 2019. Vieira filed a pretrial petition for writ of habeas corpus, arguing the indictment was time-barred because it was filed after the two-year SOL had expired on July 8, 2021. The trial court denied the habeas petition, and the Court of Appeals (“COA”) affirmed the denial.

The Court granted Vieira discretionary review, which the Court explained is an “extraordinary remedy” for an interlocutory appeal with respect to a pretrial habeas petition (see opinion for the reason the Court granted it). The Court observed that the SOL for aggravated assault charged in this case was two years. See Tex. Code Crim. Proc. (“TCCP”) art. 12.03(d) (an “aggravated” offense carries the same SOL as the “primary crime”); see also Tex. Penal Code § 22.01(a)(2) & (c) (the primary crime in the instant case was assault, which is a Class C misdemeanor) and TCCP art. 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.”).

The issue in the present case involved two provisions used to compute periods of time—TCCP art. 12.04 - Computation (“Article 12.04”) and Texas Government Code (“TGC”) § 311.014(c)—Computation of Time (“§ 311.014(c)”)—and whether they may be used in tandem to compute a limitations period for a criminal offense. The State argued, and the COA had agreed, that these two provisions operate in tandem. But the Court rejected that application of the provisions, observing that doing so would lead to a result that could not be achieved by either provision alone and that the Legislature did not intend such a result.

The plain language of Article 12.04 states that 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,” meaning the period started on and included July 8, 2019, ended on and included July 8, 2021, and the State had until July 8, 2021 to indict Vieira, the Court explained.

The indictment on July 9, 2021, was one day too late, according to the Court. It explained that TGC § 311.005(12) defines a “Year” as “12 consecutive months” that have a total of 365 days (366 days in a leap year). Because the year 2020 was a leap year, the total number of days for the two-year period in this case was 731 days (365 + 366 = 731). However, from and including July 8, 2019, to and including July 8, 2021, was 732 days, which exceeded the two-year period by one day.

Turning to Section 311.014(c), the Court observed the provision “says that, when calculating a period of months ‘from a particular day,’ we end on the same day of the month ‘from which the computation is begun.’” In the present case, the computation would begin on the date of the offense—July 7, 2019, so it must end on the same day of the month two years later, i.e., July 7, 2021. The Court stated that the “indictment filed on July 9, 2021, falls outside of this time period.” Thus, the application of either Article 12.04 or Section 311.014(c) alone results in the indictment being filed after the limitations period had already run.

The State sought to remedy this by arguing Article 12.04 and Section 311.014(c) may be applied in tandem, which results in the indictment being timely filed. The Court rejected the State’s argument because it would always provide the State with a limitations period consisting of two years and one day in contravention of the Legislature’s clear intent that the limitations period is two years.

The Court explained: “When we compare Article 12.04 and Section 311.014(c), we can see that both provisions exclude the first day. Article 12.04 does it by excluding the day of the offense. Section 311.014(c) does it by excluding the day in that first month that the period is computed from, which, in a criminal case, is the day of the offense. Those first-day exclusions are concurrent exclusions—both statutes exclude the same first day. The State does not get to exclude the first day under Article 12.04, designate the next day as the new first day, and exclude that new first day under Section 311.014(c). Doing what the State wants would violate the clear meaning of the text of all the statutes we have discussed.”

Thus, the Court held that “the indictment filed on July 9, 2021, for an assault committed on July 7, 2019, is time-barred because it was not brought within the two-year statute of limitations.”

Accordingly, the Court reversed the judgments of the courts below and dismissed the indictment. See: Ex parte Vieira, 676 S.W.3d 654 (Tex. Crim. App. 2023).  

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Ex parte Vieira

 

 

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