Ex Parte Tamez, 38 S.W.3d 159 (Tex. Crim. App. 2001). · Go Syfert
Ex Parte Tamez, 38 S.W.3d 159 (Tex. Crim. App. 2001). Cases Citing This Book View Copy Cite
118 citation events (118 in the last 25 years) across 3 distinct courts.
Strongest positive: Edwards, Ex Parte Maurice (texcrimapp, 2022-05-04)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Edwards, Ex Parte Maurice
Tex. Crim. App. · 2022 · quote attribution · 1 verbatim quote · confidence high
f the pleading, on its face, shows that the offense charged is barred by limitations, then it is appropriate that habeas corpus relief be granted.
examined Cited as authority (verbatim quote) Ex Parte Paul Vallejo (2×) also: Cited "see, e.g."
Tex. App. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
we have long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available prior to trial to test the sufficiency of the complaint, information, or indictment.
discussed Cited as authority (verbatim quote) Perry, Ex Parte James Richard \Rick\""
Tex. Crim. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
f the pleading, on its face, shows that the offense charged is barred by limitations, then it is appropriate that habeas corpus relief be granted.
examined Cited as authority (quoted) Ex Parte William D. Driver
Tex. App. · 2014 · signal: see also · quote attribution · 1 verbatim quote · confidence low
we have long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available prior to trial to test the sufficiency of the complaint, information, or indictment.
discussed Cited as authority (rule) Edwards, Ex Parte Maurice
Tex. Crim. App. · 2022 · confidence medium
Nevertheless, an exception to the bar against pretrial habeas as an avenue for testing the sufficiency of a charging instrument has historically been found where the face of the indictment “shows that the prosecution is barred by limitations.” Doster, 303 S.W.3d at 724 (citing, inter alia, Weise, 55 S.W.3d at 620 ; Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited as authority (rule) Ex Parte Maurice Edwards
Tex. App. · 2019 · confidence medium
App. 2005); Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) in the Matter of David Christopher Hesse
Tex. App. · 2016 · confidence medium
Thus, pretrial writs may be used to assert that (1) the statute under which the applicant is prosecuted is unconstitutional on its face, id. at 620 , and (2) the face of an information or indictment “shows that the offense charged is barred by limitations . . . .” Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) in the Matter of David Christopher Hesse
Tex. App. · 2016 · confidence medium
Thus, pretrial writs may be used to assert that (1) the statute under which the applicant is prosecuted is unconstitutional on its face, id. at 620 , and (2) the face of an information or indictment “shows that the offense charged is barred by limitations . . . .” Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) Perry, Ex Parte James Richard \Rick\""
unknown court · 2016 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001) (“[I]f the pleading, on its face, shows that the offense charged is barred by -limitations, then it is appropriate that habeas corpus relief be granted”).
discussed Cited as authority (rule) EX PARTE Stacey LOVINGS (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
Appellant applied for a writ of habeas corpus 1 based on the statute of limitations. *109 See Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001) (application for writ of habeas corpus is proper vehicle to invoke statute of limitations “if the pleading, on its face, shows that the offense charged is barred by limitations”).
discussed Cited as authority (rule) Ex Parte Carol Ann Davis (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
Other than Davis’s double jeopardy claim, her two remaining grounds challenged the indictment for failure to allege an offense and the proper county. “[A]pplications for pre-trial writs of habeas corpus generally may not challenge an indictment except to allege that a statute is void or to assert a statute-of-limitations bar.” Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited as authority (rule) Perry, Ex Parte James Richard \Rick\""
Tex. App. · 2015 · confidence medium
App. 1970) (indictment returned by irregularly empaneled grand jury)). 33 Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim.
cited Cited as authority (rule) Perry, Ex Parte James Richard \Rick\""
Tex. App. · 2015 · confidence medium
App. 1970) (indictment returned by irregularly empaneled grand jury)). 33 Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim.
cited Cited as authority (rule) Perry, Ex Parte James Richard \Rick\""
Tex. App. · 2015 · confidence medium
App. 1970) (indictment returned by irregularly empaneled grand jury)). 33 Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim.
cited Cited as authority (rule) Perry, Ex Parte James Richard \Rick\""
Tex. App. · 2015 · confidence medium
App. 1970) (indictment returned by irregularly empaneled grand jury)). 33 Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim.
cited Cited as authority (rule) Ex Parte James Richard \Rick\" Perry"
Tex. App. · 2015 · confidence medium
Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex.Crim.App.2001) (citing Dickerson, 549 S.W.2d at 203 ).
cited Cited as authority (rule) Phillips, William Ray
Tex. Crim. App. · 2011 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
examined Cited as authority (rule) Phillips, William Ray (3×)
Tex. Crim. App. · 2011 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001); see also Tita v. State, 267 S.W.3d 33, 38 (Tex.Crim.App.2008) (distinguishing between a statute of limitations defense that relies upon factual proof under Proctor and an irreparable bar under the applicable statute of limitations). . 285 Kan. 1 , 169 P.3d 1069 (2007). .
cited Cited as authority (rule) Phillips, William Ray
Tex. Crim. App. · 2011 · confidence medium
App. 2005); Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) Phillips, William Ray
Tex. Crim. App. · 2011 · confidence medium
There is no point in wasting scarce judicial and societal resources or putting the defendant to great expense, inconvenience, and anxiety if the ultimate result is never in question.”) (footnotes omitted). 65 Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) Doster, Ex Parte Oscar Roy
Tex. Crim. App. · 2010 · confidence medium
DOSTER – 8 or indictment.”26 An historical exception to the rule against testing the sufficiency of the charging instrument by pretrial habeas has been to permit a challenge when the face of the charging instrument shows that the prosecution is barred by limitations.27 Statements in our recent cases trace their lineage to the 1977 decision in Ex parte Dickerson.28 Our rationale for the holding in Dickerson was that a pleading that shows on its face that the offense is barred by limitations is “so fundamentally defective that the trial court does not have jurisdiction.”29 That rationale…
discussed Cited as authority (rule) Ex Parte Doster
Tex. Crim. App. · 2010 · confidence medium
See Dickerson, 549 S.W.2d at 203-04 ; Smith, 178 S.W.3d at 802 , 802 ns. 14, 15, 18, 19 (citing Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001) and Dickerson); Weise, 55 S.W.3d at 620 , 620 n. 18 (citing Tamez , in turn citing Dickerson). 28 .
cited Cited as authority (rule) Doster, Ex Parte Oscar Roy
Tex. Crim. App. · 2010 · confidence medium
See Dickerson , 549 S.W.2d at 203-04 ; Smith , 178 S.W.3d at 802 , 802 ns.14, 15, 18, 19 (citing Ex parte Tamez , 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited as authority (rule) in Re Jesse Mendez
Tex. App. · 2008 · confidence medium
App. 2001); Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited as authority (rule) Ex Parte Brooks
Tex. App. · 2007 · confidence medium
See Ex parte Smith, 178 S.W.3d 797, 802 (Tex.Crim.App.2005) (per curiam); Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.App.2001).
cited Cited as authority (rule) in Re Theodore Streater
Tex. App. · 2007 · confidence medium
App. 2001); Ex parte Tamez , 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) Brent Andrew Dornburg v. State (2×) also: Cited "see"
Tex. App. · 2005 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
discussed Cited as authority (rule) Ex Parte Smith (2×)
Tex. Crim. App. · 2005 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001) ("We have long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available prior to trial to test the sufficiency of the complaint, information, or indictment”). .
discussed Cited as authority (rule) Ahmad v. State
Tex. App. · 2005 · confidence medium
In support of her contention, Appellant cites Ex parte Tamez, 38 S.W.3d 159, 160-61 (Tex.Crim.App.2001) and Ex parte Smith, 135 S.W.3d 884, 890 (Tex.App.-Fort Worth 2004, pet. granted on other grounds) (both holding pretrial writ of habeas corpus is proper procedural vehicle to raise contention that prosecution is barred by limitations, and denial is appeal-able).
cited Cited as authority (rule) Ex Parte Smith
Tex. App. · 2005 · confidence medium
Ex parte Weise, 55 S.W.3d at 620 ; Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001).
cited Cited as authority (rule) Janet Kay Ahmad v. State
Tex. App. · 2004 · confidence medium
In support of her contention, Appellant cites Ex parte Tamez , 38 S.W.3d 159, 160-61 (Tex. Crim.
cited Cited as authority (rule) Ex Parte Weise
Tex. Crim. App. · 2001 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 161 (Tex.Crim.App.2001) (citing Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App.1977)). 19 . 43 George E.
cited Cited as authority (rule) Ex Parte Gilbert Henry Hollub, Jr.
Tex. App. · 2001 · confidence medium
Ex parte Tamez , 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited as authority (rule) Ex Parte Gilbert Henry Hollub, Jr.
Tex. App. · 2001 · confidence medium
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited "see" Ex Parte Eric Rosales
Tex. App. · 2022 · signal: see · confidence high
See Ex parte Tamez, 38 S.W.3d 159 , 160–61 (Tex. Crim.
discussed Cited "see" Ex Parte Gregory Montgomery (2×)
Tex. App. · 2017 · signal: see · confidence high
See Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim.
cited Cited "see" Ex parte Joyner
Tex. App. · 2012 · signal: see · confidence high
See Ex parte Tamez, 38 S.W.3d 159, 160-61 (Tex.Crim.App.2001).
cited Cited "see" Ex Parte David Lorenza Joyner
Tex. App. · 2012 · signal: see · confidence high
See Ex parte Tamez, 38 S.W. 3d 159 , 160–61 (Tex. Crim.
cited Cited "see" Leonard Crenshaw v. State
Tex. App. · 2006 · signal: see · confidence high
App.1998); see Ex parte Tamez , 4 S.W.3d 854 (Tex. App.-Houston [1st Dist.] 1999), aff'd Ex parte Tamez , 38 S.W.3d 159 (Tex. Crim.
cited Cited "see" Ex Parte Martin
Tex. App. · 2005 · signal: see · confidence high
See Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001).
cited Cited "see" Ex Parte Malcolm Isles Martin
Tex. App. · 2005 · signal: see · confidence high
See Ex parte Tamez , 38 S.W.3d 159, 160 (Tex. Crim.
examined Cited "see" Ex Parte Smith (3×) also: Cited "see, e.g."
Tex. App. · 2004 · signal: see · confidence high
See id. art. 12.05(b); see also McAlister, 119 S.W.3d at 462 ; White, 50 S.W.3d at 51-52 .
examined Cited "see" Ex Parte Garrison (3×)
Tex. App. · 2001 · signal: see · confidence high
See Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001); Ex parte Matthews, 873 S.W.2d 40 , 42 & n. 6 (Tex.Crim.App.1994).
cited Cited "see, e.g." VIEIRA, EX PARTE LUCAS v. the State of Texas
Tex. Crim. App. · 2023 · signal: see, e.g. · confidence medium
See, e.g., Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim.
discussed Cited "see, e.g." Ex parte Walsh
Tex. App. · 2017 · signal: see also · confidence low
App. 1994); see also Ex parte Tamez, 4 S.W.3d 854, 855-56 (Tex. App.— Houston [1st Dist.] 1999) (“Pretrial writs for habeas corpus generally may not challenge an indictment except for instances of a void statute or to assert a statute of limitations bar.”), aff'd, 38 S.W.3d 159 (Tex. Crim.
discussed Cited "see, e.g." Schunior, Victor Manuel Jr.
Tex. · 2015 · signal: see also · confidence low
See State v. Coleman, 962 S.W.2d 267, 268 (Tex. App.—Houston - 15 - 04-14-00347-CR [1st Dist.] 1998, pet. ref’d) (citing Ex parte Zain and the same dicta from Ex parte Matthews); see also Ex parte Tamez, 4 S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 38 S.W.3d 159 (Tex. Crim.
discussed Cited "see, e.g." State v. Victor Manuel Schunior, Jr.
Tex. App. · 2015 · signal: see also · confidence low
See State v. Coleman, 962 S.W.2d 267, 268 (Tex.App.-Houston [1st Dist.] 1998, pet. refd) (citing Ex parte Zain and the same dicta from Ex parte Matthews); see also Ex parte Tamez, 4 S.W.3d 854, 856 (Tex.App.-Houston [1st Dist.] 1999), aff'd, 38 S.W.3d 159 (Tex.Crim.App.2001) (same).
discussed Cited "see, e.g." State v. Bennett
Tex. Crim. App. · 2013 · signal: see, e.g. · confidence low
See, e.g., Ex parte Tamez, 4 S.W.3d 854, 856 (Tex.App.-Houston [1st Dist.] 1999), aff’d, 38 S.W.3d 159 (Tex.Crim.App.2001); State v. Coleman, 962 S.W.2d 267, 268 (Tex.App.Houston [1st Dist.] 1998, pet. ref’d); Ex parte Zain, 940 S.W.2d 253, 254 (Tex.App.-San Antonio 1997, no pet.). . 40 George E.
cited Cited "see, e.g." State of Texas v. Bennett, Carl Alan
Tex. Crim. App. · 2013 · signal: see, e.g. · confidence low
See, e.g., Ex parte Tamez , 4 S.W.3d 854, 856 (Tex. App.-Houston [1st Dist.] 1999), aff'd , 38 S.W.3d 159 (Tex. Crim.
Retrieving the full opinion text from the archive…
Ex Parte Eva Diana TAMEZ, Appellant
1857-1862.
Court of Criminal Appeals of Texas.
Feb 14, 2001.
38 S.W.3d 159
Brian W. Wice, Houston, Donald W. Bankston, Richmond, for appellant., John J. Harrity, III, Asst. DA, David C. Newell, Asst. DA, Richmond, Matthew Paul, State’s Atty., Austin, for the State.
Johnson, Keller, Price, Holland, Womack, Keasler, Hervey, Holcomb, Meyers.
Cited by 67 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 71%
Citer courts: Court of Appeals of Texas (1)

OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and PRICE, HOLLAND, WOMACK, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

Appellant filed six applications for pretrial writs of habeas corpus, claiming that her prosecutions under Tex.Pen.Code §§ 37.03 and 37.06 [1] were barred by the statute of limitations. The trial court denied habeas corpus relief. At the court of appeals, appellant argued that the state’s reliance on § 37.06 barred her prosecution for aggravated perjury on limitations grounds. She noted that § 37.06 requires the state to show inconsistent statements, made under oath, without proving which statement is actually false. She further argued that her first statement of December 5, 1995, which she claims to have been the false statement, was outside the two-year statute of limitations, [2] thus preventing it from being an element of the prosecution for the second statement made December 2,1997.

The court of appeals first concluded that it had jurisdiction to consider appellant’s claims. It noted that applications for pretrial writs of habeas corpus generally may not challenge an indictment except to allege that a statute is void or to assert a statute-of-limitations bar. Ex parte Tamez, 4 S.W.3d 854, 855-6 (Tex.App.-Houston [1st Dist.] 1999) (citing Ex parte Matthews 873 S.W.2d 40, 42 (Tex.Crim.App.1994)). Because appellant asserted that the state’s indictment was barred by the statute of limitations, the court determined that it had jurisdiction to review the indictment by which she was charged. Tamez, 4 S.W.3d at 856.

The court then determined that the applicable limitations period for aggravated perjury was two years. Id. at 856. Finally, it found that the charges of aggravated perjury based on inconsistent statements were within the limitations period, even if the first inconsistent statement was not. Id. at 856-57. The court of appeals then affirmed the denial of relief. We granted appellant’s petition for discretionary review to determine whether “[t]he court of appeals erred in denying appellant’s writ of habeas corpus on the grounds that prosecution is barred by [the] applicable statute of limitations.” We find that the issue of limitations that is implicated by this case is not yet ripe for consideration, and we therefore affirm.

We have long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available prior to trial to test the sufficiency of the complaint, information, or indictment. Ex parte Mangrum, 564 S.W.2d 751, 752 (Tex.Crim.App.1978); Ex parte Ward, 560 S.W.2d 660, 660-61 (Tex.Crim.App.1978); Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App.1977), and cases cited therein. But, we have recognized certain exceptions to this rule. Among these is that if the pleading, on its face, shows that the offense charged is barred by limitations, then it is appropriate that habeas corpus relief be granted. Dickerson, 549 S.W.2d at 203, and cases cited therein. Thus, the[*161] court of appeals was correct in determining that it had jurisdiction to review the indictment by which appellant was charged.

However, once the court of appeals determined that the applicable statute of limitations for aggravated perjury is two years and that the second, charged date was within the statute, it was proper to go no further. Under the above exception, only the face of the pleading is considered when determining whether relief is warranted. The various indictments specify the “date of offense” as December 2, 1997. Because the indictment was issued on September 14,1998, a date less than two years after the alleged date of the offense, the pleading, on its face, does not show that the offense charged is barred by limitations. Therefore, appellant is not entitled to pre-trial habeas corpus relief. Dickerson, supra. Appellant’s ground for review is overruled. [3]

Based on the foregoing, the judgment of the court of appeals is affirmed.

MEYERS, J., concurred in the judgment.
1

. Section 37.03 provides that "(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement: (1) is made during or in connection with an official proceeding; and (2) is material ...." Section 37.06 provides that "[a]n information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.”

2

. The indictment was issued on September 14, 1998.

3

. How the limitations periods for perjury and aggravated perjury interact with § 37.06 is an open question, and one that deserves consideration at the appropriate time. However, given the procedural posture of the instant case (i.e., a pretrial application for writ of habeas corpus), and the dates alleged on the face of the indictment, it is not yet time to decide that issue in this case, and denial of habeas corpus relief is appropriate.