How close is close enough? Tolling the statute of limitations with a prior indictment

Andrea L. ­Westerfeld

Assistant Criminal ­District Attorney in Ellis County

A pending indictment tolls the statute of limitations. But does the indictment have to be for the same offense that is ultimately tried, or can any indictment achieve tolling? In 2004, the Court of Criminal Appeals determined that an indictment for a different offense could toll for any other offense alleging the same conduct, act, or transaction. But this year in Marks v. State, the Court revisited and greatly restricted that opinion, limiting for practical purposes Art. 12.05(b) to only the same offense or a lesser-included offense.

Article 12.05(b) and Hernandez
When calculating a period of limitations, the time during the pendency of an indictment, information, or complaint is not included.1 “During the pendency” counts from the day the indictment is filed until the day it is invalidated for any reason,2 but does “an indictment” mean just an indictment charging the same offense, or does it mean any offense at all? The statute does not specify.
    The Court of Criminal Appeals first considered that issue in 2004 in Hernandez v. State.3 Hernandez was originally charged with possession of amphetamine, but after further testing, the State filed a new indictment for possession of methamphetamine. Unfortunately, the statute of limitations had run before the second indictment was filed; therefore, the State could prosecute only if the amphetamine indictment tolled the limitations period for methamphetamine.
    In analyzing Art. 12.05’s text, the Court acknowledged that the statute required only an indictment, not one for the same offense or even the same conduct. There was no guidance at all for how related they must be. Thus, the Court turned to the rules of statutory construction. Reading it to include any indictment would lead to an absurd result because the State could frustrate the purpose of the statute of limitations—requiring due diligence in obtaining and giving the defendant the opportunity to prepare a defense—by continually filing unrelated indictments. Thus, the Court concluded that the Legislature intended something more limited. Instead, it concluded, the two indictments must both allege “the same conduct, same act, or same transaction” to apply.4 Because the conduct at issue in Hernandez’s two indictments was the same (possession of a controlled substance), the amphetamine indictment tolled the statute of limitations for the methamphetamine indictment.

Marks v. State
The procedural standpoint in Marks was different from Hernandez, but both revolved around the interpretation of Art. 12.05(b). Marks was originally charged with acting as a guard company by providing security services without a proper license.5 Later, the indictment was amended to charge him with accepting employment as a security officer to carry a firearm without a security officer commission.6 Both offenses come from the same chapter of the Occupations Code, and both are Class A misdemeanors. By the time the State amended the indictment, the statute of limitations for the security guard offense had run, unless it was tolled by the guard company charge.
    The Court of Criminal Appeals considered the case under Hernandez. Significantly, the Court found that the record would not support conviction on the original indictment.7 Under the new indictment, the State did not need to prove that Marks provided any security services, but under the original indictment, the State did not need to prove that Marks carried a firearm. A defendant reviewing the original indictment would not have any notice that he would need to defend himself against matters raised under the second indictment. Therefore, the matters did not involve the same conduct, act, or transaction.
    The Court noted two things that could have led to a different result. First, the guard company indictment could have included enough specific facts to cover the security officer offense.8 But the indictments here tracked only the language of the statute without many specific facts. Additionally, the dates in both indictments were the same,9 but the Court decided that was not enough to conclude they alleged the same act or transaction because both dates were alleged as “on or about.”

The dissents
Marks drew sharp dissention, with four judges opposed to the decision and two dissents authored. Judge Keasler, joined by Judges Hervey and Newell, noted that they had determined in Hernandez that Art. 12.05(b) should be read broadly and that two offenses did not have to come from the same statute to toll limitations.10 Both sets of indictments in Marks “targeted the same three incidents, on the same three dates, arising from the same set of facts, made criminal within the same Private Security Act.”11 It was unlikely that a defendant would have needed to preserve any different evidence to defend himself against either crime. Although the two offenses would have required slightly different proof, that will always be true when different statutory offenses are alleged. Thus, the first indictment should have tolled limitations.
    Judge Yeary took a stronger approach. He concluded that the text of Art. 12.05(b) did not require any connection between the two indictments to toll limitations but, contrary to Hernandez, he decided that this was not an absurd result and the Legislature should be taken at its word.12 He concluded that the court never should have engaged in statutory construction when the meaning of the statute was clear; the court should have overruled Hernandez, and Marks’s first indictment should have tolled limitations regardless of any connection to the second.

The Marks test
Going forward, what test can be derived from Marks to analyze future cases? Although Marks did not expressly overrule Hernandez, practically speaking, it did. The focus is no longer on the act, conduct, or transaction; instead, analysis focuses solely on the elements of the two offenses. If the first indictment did not allege the same elements—or enough facts to include the elements of another offense—then it does not toll limitations for the second indictment. Hernandez is effectively overruled because its facts would not have passed this test. After all, each indictment required proof of an elemental fact not included in the other indictment—one required possession of amphetamine, and one required possession of methamphetamine. The offenses occurring on the same date is irrelevant, because the indictment charged “on or about” a date rather than a specific date.
    Essentially, Marks has limited the tolling provision solely to the same offense or a lesser-included offense, because those are the only ones where the elements will be the same. If an indictment includes more facts than simply tracking the language of the statute, then those facts may be considered as well and might expand to include more offenses. But the Court of Criminal Appeals has drawn a very strict line on the application of Art. 12.05(b). That line may be relaxed again in the future, considering it was a narrow opinion, but for now, Marks’s restrictive reading prevails. Unless the second indictment covers the same offense as the first or a lesser-included offense, the first indictment cannot be relied upon to toll the statute of limitations.


1  Tex. Code Crim. Proc. Art. 12.05(b).

2 Tex. Code Crim. Proc. Art. 12.05(c).

3 Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004).

4 Id. at 774.

5 Tex. Occ. Code §1702.102(a)(1).

6 Tex. Occ. Code §1702.161(a).

7 Marks v. State, Nos. PD-0549—51-17, 2018 Tex. Crim. App. Lexis 921 at *3-4, slip op. at 3-4 (Tex. Crim. App. Oct. 3, 2018).

8  Marks, 2018 Tex. Crim. App. Lexis 921 at *4, slip op. at 4.

9 Id.

10  Marks, 2018 Tex. Crim. App. Lexis 921 at *7, slip op. at 2 (Keasler, J., dissenting).

11  Marks, 2018 Tex. Crim. App. Lexis 921 at *7-8, slip op. at 4 (Keasler, J., dissenting).

12  Marks, 2018 Tex. Crim. App. Lexis 921 at *12-13, slip op. at 3 (Yeary, J., dissenting).