Ex Parte Matthews

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was indicted for aggravated perjury, and she filed a pre-trial writ of habeas eoipus. She appealed to the First Court of Appeals after the trial court denied relief, claiming that prosecution on the indictment was barred by the two year statute of limitations applicable to aggravated perjury. Article 12.03(d), V.A.C.C.P.¹ The court of appeals dismissed the appeal for want of jurisdiction, holding that appellant could not challenge an indictment in a pre-trial writ of habeas corpus proceeding. Ex parte Matthews, 846 S.W.2d 152 (Tex.App.- Houston [1st Dist.] 1993). We reversed the court of appeals’ decision and remanded, holding that a pretrial writ was a proper vehicle for her complaint. Ex parte Matthews, 873 S.W.2d 40 (Tex.Cr.App.1994). On remand, the court of appeals held the trial court erred in failing to grant appellant’s writ of habeas corpus. Ex parte Matthews, 892 S.W.2d 208 (Tex.App.-Houston [1st Dist.] 1995). We granted the State’s petition for discretionary review to determine whether the court below erred in construing the limitations tolling provision, Article 12.05(a), to apply only to persons formally accused of an offense prior to the time they absent themselves from the state.² Tex.R.App.Pro., Rule 200(c)(2).

I.

Appellant was indicted on January 8,1991, for aggravated perjury. The indictment alleged that appellant lied about her qualifications as an expert witness on June 12, 1981, when she testified for the State in the capital minder trial of Phillip Tompkins. Appellant, who lives in Arizona, flew from Arizona to Texas to testify in the Tompkins trial. In that trial, she testified that she held a Ph.D. in psychology from Florida State University in Tallahassee. According to the State, appellant had no such degree at the time. After testifying, appellant left Texas, never to reappear until the grand jury returned the indictment. The State did not discover the alleged perjury until February or March of 1990, during a post-conviction writ of habeas corpus proceeding in the Tompkins case. The indictment alleges appellant does not hold a Ph.D. in psychology from Florida State University.

Appellant filed a pre-trial writ of habeas corpus asserting that the statute of limitations had run in the 10 years between the alleged perjury and the return of the indictment. Appellant argued that the term “accused” in Article 12.05(a) means a person against whom the State has brought formal charges. Since she had not been formally charged with a crime by the time she left Texas, the tolling provision of Art. 12.05(a) did not apply to her. The court of appeals agreed with appellant and granted relief. We will affirm.

II.

A.

The court of appeals held that Article 12.05(a) does not operate to toll the statute of limitations until the citizen has been “formally accused.”³ Ex Parte Matthews, 892 S.W.2d at 211. In its petition for discretionary review, the State asserts that Article 12.05(a), so construed, will have practically no “utility.” It is usually the ease, the State argues, that a defendant becomes “the accused” for the first time by virtue of an indictment or information and complaint. In those cases the limitations period will already be tolled under Article 12.05(b).⁴ The State argues that it more fully effectuates Article 12.05(a) to construe “the accused” to mean simply the person now accused of a crime. That is to say, the statute of limitations tolls whenever a person who commits a crime leaves Texas, regardless of whether he has been charged and regardless of whether he even knows he may be suspected of the commission of a crime. Notwithstanding what the State describes as the limited utility of the court of appeals holding, we are not persuaded by the State’s arguments.

B.

Statutes of limitation are acts of grace in that the sovereign surrenders its right to prosecute (or its right to prosecute at its discretion); thus they are considered to be equivalent to acts of amnesty. Vasquez v. State, 557 S.W.2d 779, at 781 (Tex.Cr.App.1977). Statutes of limitation are to be construed liberally in favor of the accused; the burden is on the State to show the offense was committed within the period of limitation. Vasquez v. State, supra, at 783; White v. The State, 4 Tex.App. 488 (1878); see generally cases collected in 1 Branch’s Annotated Penal Code (2nd Edition) § 661, at 639.

The period of limitation for presentment of charging instruments begins with the day of commission of the offense and runs to the limits in terms of years respectively prescribed in Articles 12.01, 12.02 and 12.03. In the instant cause of aggravated perjury the period is two years, that being the same period as perjury. Article 12.03(d) (an offense titled “aggravated” carries the same limitation period as primary crime).

Quite obviously the intent and purpose of statutes of limitation is to require that an accused be prosecuted on a charging instrument filed within the period prescribed for the offense alleged, subject of course to germane tolling provisions. There is no authority in law to prosecute a citizen after the period of limitation has intervened. Vasquez v. State, supra, at 783, n. 6; Ex Parte Hoard, 63 Tex.Cr.R. 519, 140 S.W. 449, at 451 (1911).

The instant offense was committed June 12, 1981. Manifestly an indictment filed after June 14,1983, was barred by limitation— unless tolled for the period of time during which applicant qua “the accused” was absent from the state, as the prosecution here alleged. Article 12.05(a).⁵ The issue thus turns on when applicant became “the accused.” Our judgment is never — validly, that is.

The court of appeals agreed with the State that she would not attain that status until “charged by indictment or information.” It also spoke of a “formal accusation,” meaning “complaint, information or indictment” — a charging instrument upon which trial is authorized and may be conducted. The State contends that where a formal accusation has not been filed, absence from the state will toll the period of limitations.

In our view, that newly conceived notion ignores both the language of Article 12.05(a) as well as its predecessors and caselaw construing and applying them, and would defeat the beneficent intent and studied purpose of statutes of limitation — essentially insisting that prosecutorial authorities exercise all due diligence obtaining and presenting a formal accusation of an offense against a person— ordinarily one who is already a criminally “accused.”

C.

Practically from the beginning the State of Texas granted amnesty from prosecution in statutes of limitation in terms that basically continue today. The early predecessors of Article 12.05(a) provided thusly:

“The time during which a person accused of an offense IS absent from the State shall not be computed in the period of limitation.”

O.C. 187; C.C.P. 1879, article 202; C.C.P. 1895, article 221; C.C.P. 1911, article 231. The language was later modified somewhat to read as it does today. C.C.P. 1925, article 183. But as the State says, “The primary goal of statutory construction is always the ascertainment and effectuation of the legislative intent that existed at the time of the enactment of the statute in question.” State’s Brief, at 4. See Ex parte Morin, 172 Tex.Cr.R. 322, 356 S.W.2d 689 (1962) (pre-indictment time during which accused escaped from jail and fled to California and thus was absent from the state shall not be computed); Morin v. State, 171 Tex.Cr.R. 138, 346 S.W.2d 327 (1961) (Mowing his arrest defendant escaped jail and remained at large in California some four years); see also Ex parte Ward, 560 S.W.2d 660 (Tex.Cr. App.1978) (Douglas, J., dissenting, at 664— 665) (no precedent in Texas that filing indictment or information is only method of interrupting statute of limitation for felony offenses; Court should hold that filing felony complaint in justice court will toll running of statute under Article 12.05(b) & (c)).

Concomitantly, the penal codes defined the term “accused” substantially as follows:

“The word ‘accused’ is intended to refer to any person who, in a legal manner, is held to answer for any offense, at any stage of the proceeding, or against whom complaint in a lawful manner is made charging an offense, including all proceedings from the order for arrest to the final execution of the law[J”

Article 23, P.C.1925; see also article 25, P.C. 1911; article 25, P.C. 1895; article 25, P.C. 1879; article 24, O.C.

Accordingly, early on the Court discerned that a person is “accused” from the time any “criminal action” is commenced against him, and “a legal arrest without a warrant; a complaint to a magistrate; and a warrant legally issued” among others are examples of “accusation,” under any one of such proceeding a person is said to be “accused.” Brannan v. State, 44 Tex.Cr.R. 399, 72 S.W. 184, 185 (1903). Similarly, because one is not “accused” unless charged with an offense, a magistrate cannot conduct an examining trial until that party is under arrest and appears in court. Brown v. State, 55 Tex.Cr.R. 572, 118 S.W. 139, at 144 (1909).

The point for the instant situation is that from the time applicant left Texas and returned to her home in Arizona until expiration of the period of limitation, she was not “the accused” within the meaning contemplated by Article 12.05(a). The prosecution was free to toll running of the statute of limitation by simply filing and pursuing pre-indictment whatever accusatory pleading or paper it preferred for that purpose. Having failed to do so, the prosecution allowed the applicable statute of limitation to run unabated. Appellant is entitled to the amnesty granted by the Legislature to all citizens similarly situated.

III.

Because it comports with legislative intent and purpose consistently manifested and judicially implemented since at least 1857, we hold that Article 12.05(a) operates to toll the statutory limitations period only when the citizen has been effectively accused of an offense. Appellant cannot be haled into court to answer this stale charging instrument.

Accordingly, the judgment of the court of appeals granting appellant’s writ of habeas corpus is affirmed.

1 . Unless otherwise indicated, all references to articles are to those in the Texas Code of Criminal Procedure.

2 . Article 12.05(a) provides:

The time during which the accused is absent from the state shall not be computed in the period of limitations.

3 . What the court of appeals meant by "formally accused” is unclear. Arguably the statutoiy term, the "accused” might embrace situations other than accusation by indictment, information, or complaint. Ex parte Matthews, 892 S.W.2d at 209, 211. Most likely the court refers only to those formal charging instruments. Ex parte Matthews, 892 S.W.2d at 210.

If the court intended the latter definition, the opinion results in a logical absurdity. The statute of limitations is tolled, pursuant to Article 12.05(b), if a person is charged by information, indictment, or complaint. If “accused” in Article 12.05(a) is interpreted to mean "a person charged by information, indictment, or complaint," Articles 12.05(a) and (b) would be redundant. Article 12.05(a) would toll the statute of limitations for all those charged by information, indictment, or complaint who at some point subsequent to the filing leave Texas; while Article 12.05(b) already tolls the limitations period automatically upon filing of the charging instrument, regardless of whether the "accused” has left the state. Article 12.05(a) would thus be a subset of Article 12.05(b) and would be superfluous. It would indeed be absurd to interpret a statute to achieve a superfluous result. It is a cardinal rule of statutory construction that the whole of a statute should be given effect. E.g., Heckert v. State, 612 S.W.2d 549, 552-53 (Tex.Cr.App.1981).

4 . Article 12.05(b) provides:

The time dining the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

5 . In pertinent part the indictment alleges:

"... [S]uch false sworn statement ... was material to said proceeding in that it could have affected the course and outcome of said proceeding by increasing the credibility of [applicant’s] testimony before the jury at the penalty stage of said official proceeding.”

"... [T]hat after the offense was committed as alleged above [June 12, 1981] the defendant was absent from the State of Texas for a period of three years, namely, that she was not present within the State of Texas for a cumulative period of three years, excluding the date on which the offense was committed alleged above and the date on which the indictment was presented herein, to-wit, January 28, 1991.”

(All emphasis above and throughout this opinion is mine unless otherwise indicated.)