560 S.W.3d 169
Tex. Crim. App.2018Background
- Article 12.05(b) (Tex. Code Crim. Proc.) tolls the statute of limitations while "an indictment" is pending; dispute over whether "an indictment" means any pending indictment or only related ones.
- This case involves Marks, initially indicted under one Private Security Act theory (guard-company) and later indicted under a different Private Security Act theory (armed-security) for the same three incident dates.
- The majority in Hernandez v. State adopted a middle-ground rule: a prior indictment tolls limitations for a later one when both allege the same conduct, act, or transaction (focus on factual basis and adequate notice to defendant).
- Dissents here (Keasler and Yeary, joined by others) argue Hernandez was wrongly decided or should be applied broadly: either tolling should apply when underlying facts overlap (Keasler) or the statute's plain text should be applied to toll for any pending indictment (Yeary).
- Key practical concern: whether a defendant would have different or prejudiced defenses if the subsequent indictment alleges a different statutory offense but arises from the same factual core (Marks’s unlicensed provision of private-security services).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior pending indictment tolls limitations for a later, different statutory offense | Prior indictment tolled later charge only if it alleges same conduct/act/transaction so defendant had notice (Hernandez test) | Tolling should apply broadly when factual basis overlaps; defendant not prejudiced because defenses would be same (Keasler dissent) | Majority limits tolling to same conduct/act/transaction under Hernandez; dissent would apply broader tolling or plain-text rule |
| Whether "an indictment" in Art. 12.05(b) means any pending indictment | State argues court must require relatedness to avoid perpetual tolling and preserve statute of limitations policy | Defendant (dissent) argues "an" means any indictment; court should follow plain statutory text | Court rejects literal "any indictment" reading as allowing abuse; adopts relatedness test in Hernandez |
| Proper test for "same transaction/conduct/act" | Hernandez: look to factual basis/adequate notice, not elemental identity | Dissent: focus on plain text or on substantial factual overlap (dates, incidents) | Lower courts must apply Hernandez’s factual-basis/notice approach; dissent criticizes vagueness and urges overruling |
| Whether Marks was prejudiced by state's amendment/changing theory | State argues no prejudice: indictments concerned same three dates and same core facts; defenses identical | Marks argues different statutory elements require different proof and could prejudice defense | Dissents conclude no prejudice and tolling should apply; majority finds limits (opinion here narrows application) |
Key Cases Cited
- Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004) (adopted test that prior indictment tolls later one when both allege same conduct, act, or transaction)
- Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (plain statutory text controls; courts should not add qualifications)
- Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998) (court may overrule precedent when unworkable or badly reasoned)
- Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996) (statutes of limitation are acts of grace by the sovereign)
- State v. Vasilas, 187 S.W.3d 486 (Tex. Crim. App. 2006) (presume legislature meant what it said in statutes)
- Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005) (courts must interpret statutes, not rewrite them for policy preferences)
- Rubino v. Lynaugh, 770 S.W.2d 802 (Tex. Crim. App. 1989) (difficulty defining "continuous act or transaction" standard)