Can the statute of limitations be waived? The judges revisit—and ­overrule—recent precedent

Andrea ­Westerfeld

Assistant Criminal ­District Attorney in Collin County

Eric Heilman pleaded guilty to a lesser charge as part of a plea bargain, then returned on a writ of habeas corpus to claim the statute of limitations absolutely barred his conviction—and the caselaw said he was right. In Ex parte Heilman, the Court of Criminal Appeals reexamined its caselaw on the waivability of statutes of limitations and concluded that all such challenges are waivable rights.1

Heilman’s plea
In October 2008, Eric Heilman was a police officer in Beaumont. He took part in a failed undercover narcotics sting with a confidential informant and another officer. Even though no transaction occurred, he still arrested the suspected drug dealer when he tried to leave, seizing cash and a large amount of cocaine. When Heilman wrote his probable-cause affidavit, though, he did not mention either the undercover operation or his confidential informant. Ultimately, a prosecutor pro tem began a grand-jury investigation into Heilman. No indictment or information was ever returned, but in December 2010 Heilman pleaded guilty to tampering with a governmental record. In exchange, the State agreed to not indict him for a state-jail offense and to not oppose early termination of his deferred adjudication. As part of the plea, Heilman signed a written waiver of the statute of limitations.
       After receiving early termination of his deferred adjudication, Heilman filed an application for a writ of habeas corpus. Among other things, he argued that the trial court lacked jurisdiction to accept his plea because the statute of limitations had run. The trial court agreed, vacating the original proceedings. On appeal, the Beaumont Court of Appeals upheld the ruling, finding that the charging instrument on its face established that the statute of limitations prohibited the State from prosecution.2 Both the trial court and the appellate court relied on Phillips v. State to hold that the statute of limitations could not be waived.3

Phillips and categories of waivable rights
In Marin v. State, the Court of Criminal Appeals identified three categories of rights:
    1) absolute requirements and prohibitions (which cannot be waived under any circumstance);
    2) rights of litigants that must be implemented unless expressly waived (“waivable-only” rights); and
    3) rights of litigants that are implemented upon request (waiver by inaction).4
    Originally, in Proctor v. State, the Court of Criminal Appeals placed the statute of limitations defense in the third category, meaning it was waived unless the defendant specifically asserted it at or before trial.5 But more recently, the Court drew a distinction between two different types of limitations defense: 1) defenses “based on facts” and 2) those that are “pure law.”6
    The first type of Phillips limitations defenses merely gives rise to a factual defense, requiring factual development beyond the face of the charging instrument. But the second type, “pure law,” is apparent from the face of the charging instrument. While Phillips continued to consider the first type of defense part of the third Marin category, and thus waived unless specifically raised, it concluded that the “pure law” defense was a jurisdictional defect and could not be waived at all—part of Marin’s first category.7
    The basis of this new distinction was the constitutional—both federal and State—prohibition against ex post facto laws. The right to be free from ex post facto laws is a category-one absolute right and cannot be waived.8 The Court drew on a Supreme Court case—Stogner v. California9—that held that a state statute allowing time-barred prosecutions for child sexual assault cases was an ex post facto law. Thus, the Phillips court reasoned, any prosecution of a case after the statute of limitations expired must also be an ex post facto law.10

Overruling Phillips
The Heilman court reexamined Phillips and determined that it was overbroad by applying the Ex Post Facto clause to all prosecutions after the statute of limitations expires when the Clause applies only to legislative actions.11 Thus, while the Legislature could not pass a law extending the statute of limitations in Heilman’s case, that does not necessarily prohibit non-legislative actions that might result in his prosecution, such as a waiver and plea as in the instant case.
    The Court examined several post-Stogner Supreme Court decisions to ultimately conclude that a defendant “must be able to point to a legislative origin of the alleged violation.”12 This does not mean that the legislature must act directly. For example, a judge’s application of federal sentencing guidelines that were retrospectively increased after the date that the defendant committed the offense will still trigger the Ex Post Facto Clause because such application creates a significant risk of a higher sentence.13 A state parole board could also violate the Clause by changing its rules retroactively.14 But courts exercising pure judicial power—such as accepting a plea bargain—do not implicate the Ex Post Facto Clause.
    The majority also rejected some of the dissenting claims that it was not necessary to overrule Phillips to reach the result. Phillips turned on the conclusion that, after the statute of limitations expired, prosecution was “forever and absolutely barred,” no matter the circumstance.15 Thus, because the statute of limitations on the misdemeanor offense had expired two months before Heilman’s plea, its prosecution was “absolutely barred” under Phillips, in any circumstance. Overruling Phillips was necessary to reach the instant result, and it was dictated by the original reading of Proctor and subsequent Supreme Court caselaw. This reading also ensured that Heilman would be held to the bargain he made.16

Dissention in the ranks
Several judges disagreed that overruling Phillips was the answer or even necessary for the resolution of the case. Three separate dissenting opinions explained why overruling Phillips was not necessary. Judge Meyers believed that Proctor, not Phillips, should be overruled. He contended the statute of limitations should not be a defensive issue because it affects whether the State timely filed a case and should instead be proved by the State in every case just like venue.17
    Judge Johnson, on the other hand, believed that Heilman should simply be held to his own explicit waiver. Because, unlike in Phillips, the statute of limitations issue here was “reparable” because another offense could still be charged that was not barred by the statute of limitations, Heilman could waive the issue and plead to a lesser-included offense.18 However, in a concurrence, Judge Newell challenged the reliance on “reparable” by noting that the only charging instrument was for the misdemeanor offense. There was no indictment filed that was proper under the statute of limitations, and merely because one could have been filed did not change how the case was actually resolved.19
    Finally, Judge Alcala concluded that Phillips should be only partially overruled. Because Heilman’s claim did not actually involve retroactive legislation, the Ex Post Facto Clause was not even raised and that issue—the main basis of Phillips—was not presented here. The Phillips opinion could stand purely on the holding that an ex post facto violation was a category-one, unwaivable right, and it was unnecessary to extend that categorization to all “pure law” issues. Thus, only the “pure law” language of Phillips should be overruled.20 But Judge Newell also addressed this claim, pointing out that the Phillips court had in fact expressly rejected the State’s argument that there was a distinction between an ex post facto argument and a “plain vanilla” limitations claim.21

Application for the future
So what does Heilman mean for future practice? It should not be read too broadly in future ex post facto challenges to argue that the Clause could not be invoked simply because the actor involved was a court rather than the legislature. The Court took care to caution that the Ex Post Facto Clause can still be invoked by judicial action if it involves, for example, reinterpretation or extension of an existing statute.22 But the required connection to some sort of legislative action is still important to remember when facing any claims of ex post facto laws in the future. More straightforwardly, Heilman simplifies the rules when considering statute of limitations claims. No longer must we examine such claims to decide if they are “pure law” or factual claims. Rather, the same rule applies to each, and a defendant waives any statute of limitations argument if he does not raise it at the time of trial.

Endnotes

1 Ex parte Heilman, No. PD-1591-13, slip op. (Tex. Crim. App. Mar. 18, 2015) (not yet published).
2 State v. Heilman, 413 S.W.3d 503, 505-508 (Tex. App.—Beaumont 2013).
3 Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).
4 Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
5 Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998).
6 Phillips, 362 S.W.3d at 617.
7 Id.
8 Ieppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995).
9 Stogner v. California, 539 U.S. 607 (2003).
10 Phillips, 362 S.W.3d at 614.
11 Heilman, slip op. at 7-8.
12 Id., slip op. at 11.
13 Peugh v. United States, 133 S. Ct. 2072, 2083–85 (2013).
14 Garner v. Jones, 529 U.S. 244 (2000).
15 Heilman, slip op. at 12 (citing Phillips, 362 S.W.3d at 616).
16 Id. at 16.
17 Id., Meyers dissent at 2-3.
18 Id., Johnson dissent at 5-6.
19 Id., Newell concurrence at 1-2.
20 Id., Alcala dissent at 6-7.
21 Id., Newell concurrence at 3-4.
22 Id. at 13-14.