statute of limitations defense in Texas

2023However, the court reinforced Proctor’s holding that the timing of the defendant’s challenge to limitations affects what the State would be required to prove: • The court sustained Tita’s facial challenge to the charging instrument because Tita filed a pretrial motion to dismiss under article 27.08, arguing that the face of the indictment did not allege the prosecution was not barred by limitations, and the State did not timely amend to repair the indictment.20 • The court overruled Tita’s evidentiary challenge to the charging instrument. 17 Proctor v. State, 967 S.W.2d 840, 844 (“Before trial

2023However, the court reinforced Proctor’s holding that the timing of the defendant’s challenge to limitations affects what the State would be required to prove: • The court sustained Tita’s facial challenge to the charging instrument because Tita filed a pretrial motion to dismiss under article 27.08, arguing that the face of the indictment did not allege the prosecution was not barred by limitations, and the State did not timely amend to repair the indictment.20 • The court overruled Tita’s evidentiary challenge to the charging instrument. 17 Proctor v. State, 967 S.W.2d 840, 844 (“Before trial

2016Samuels relies on Phillips v. State to argue that a statute-of-limitations defense is a first-category Marin right that cannot be waived. 362 S.W.3d 606 , 612–13 (Tex. Crim.

2015By contrast, a “pure law” challenge appears on the face of the instrument and therefore “gives rise to a statute-of-limitations bar” that constitutes a jurisdictional defect.34 Recently in Ex parte Heilman, the Court overturned Phillips’ distinction as it affected whether a statute of limitations defect can be waived. 35 But the explanation of what can be determined “on the face of the indictment” is still illustrative and demonstrates why Appellant’s claims are 31 Phillips v. State, 362 S.W.3d 606 (Tex.Crim.App.2011). 32 Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim.

2025Id. at 168 . (citing State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim.

2015State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim.

2007App.—San Antonio 1958, no writ)). 2 also In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied) (“Unless affirmatively negated by the plaintiff’s pleadings, an affirmative defense must be proven at trial or through summary judgment proceedings.”); Montgomery County v. Fuqua, 22 S.W.3d 662, 668-69 (Tex. App.—Beaumont 2000, pet. denied) (affirmative defenses like limitations “are ‘pleas in bar,’ and do not provide a justification for summary dismissal on the pleadings”); University of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d w.o.j.)

2004Dist. v. Doe, 35 S.W.3d 777, 782 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.) (“the proper avenue for raising the statute of limitations defense under the Whistleblower Act is in a motion for summary judgment, not in a plea to the jurisdiction”); University of Houston v. Elthon, 9 S.W.3d 351, 356-57 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (“the proper method for asserting appellants’ statute of limitations defense is in a motion for summary judgment”). 8 *163 Despite the case law in our Court and in other courts of appeals, 9 the City urges that we revisit and consider overr

2017App. 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.

2015Other 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.

2017App. 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.

2014App. 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.

2011See United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916) (pre- Ashe case applying collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72 (Tex.Crim.App.2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue under the rubric of double jeopardy in the pretrial habeas setting); Guajardo v. State, 109 S.W.3d at 468-69 (Tex.Crim.App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in criminal cases outside the double-jeopardy context).

2011See United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916) (pre-Ashe case applying collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72 (Tex.Crim.App.2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue under the rubric of double jeopardy in the pretrial habeas setting); Guajardo v. State, 109 S.W.3d at 468-69 (Tex.Crim.App.2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in criminal cases outside the double-jeopardy context).

2011See United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916) (pre- Ashe case applying collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72 (Tex.Crim.App.2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue under the rubric of double jeopardy in the pretrial habeas setting); Guajardo v. State, 109 S.W.3d at 468-69 (Tex.Crim.App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in criminal cases outside the double-jeopardy context).

2011See United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916) (pre- Ashe case applying collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72 (Tex.Crim.App.2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue under the rubric of double jeopardy in the pretrial habeas setting); Guajardo v. State, 109 S.W.3d at 468-69 (Tex.Crim.App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in criminal cases outside the double-jeopardy context).

2010See Montgomery County v. Fuqua, 22 S.W.3d 662, 668 (Tex.App.-Beaumont 2000, pet. denied) (“Section 51.014(a) ... does not authorize us to hear an appeal based on a statute of limitations defense”). “[A]n interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional.” Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004).

2010See Montgomery County v. Fuqua , 22 S.W.3d 662, 668 (Tex. App.—Beaumont 2000, pet. denied) (“Section 51.014(a) . . . does not authorize us to hear an appeal based on a statute of limitations defense”). “[A]n interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional.” Tex. Dep’t of Criminal Justice v. Simons , 140 S.W.3d 338, 349 (Tex. 2004).

2009As one court noted, “A statement electronically located on a server which is called up when a web page is accessed, is no different from a statement on a paper page in a book lying on a shelf which is accessed by the reader when the book is opened.” Id. at 144 (citations omitted).

2009As one court noted, “A statement electronically located on a server which is called up when a web page is accessed, is no different from a statement on a paper page in a book lying on a shelf which is accessed by the reader when the book is opened.” Id. at 144 (citations omitted).

2008See KPMG Peat Marwick v. Harrison County Housing Finance Corp. , 988 S.W.2d 746, 748 (Tex. 1999).

2008See KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999).

2004Dist. v. Doe, 35 S.W.3d 777, 782 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.) (“the proper avenue for raising the statute of limitations defense under the Whistleblower Act is in a motion for summary judgment, not in a plea to the jurisdiction”); University of Houston v. Elthon, 9 S.W.3d 351, 356-57 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (“the proper method for asserting appellants’ statute of limitations defense is in a motion for summary judgment”). 8 *163 Despite the case law in our Court and in other courts of appeals, 9 the City urges that we revisit and consider overr

2004Dist. v. Doe, 35 S.W.3d 777, 782 (Tex. App.—Fort Worth 2001, pet. dism’d w.o.j.) (“the proper avenue for raising the statute of limitations defense under the Whistleblower Act is in a motion for summary judgment, not in a plea to the jurisdiction”); University of Houston v. Elthon, 9 S.W.3d 351, 356-57 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (“the proper method for asserting appellants’ statute of limitations defense is in a motion for summary judgment”).8 Despite the case law in our Court and in other courts of appeals,9 the City urges that we revisit and consider overruling

2004See Dubai, 12 S.W.3d at 76 . 11 .

2004See Dubai, 12 S.W.3d at 76 . 10 until the legislature consents to suit.

2019In Heilman, the Texas Court of Criminal Appeals held “a statute-of-limitations defense lacking any ex post facto component . . . is merely a procedural ‘act of grace’ by the legislature that can be forfeited.” 456 S.W.3d at 168 (citing Proctor v. State, 967 S.W.2d 840, 843 (Tex. Crim.

2017App. 1996) (even "incurable erroneous jury argument[ ]" is error that is "forfeited by a failure to insist upon it"). 60 See Heilman , 456 S.W.3d at 166 ("It would be easy to misinterpret a statute-of-limitations defense as a uniquely fundamental right, given that when it is properly raised, it leads to only one result: dismissal.

2011Ex 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). .

2009Tita, 267 S.W.3d at 38 .

2015Phillips v. State’s distinction between factual and pure-law limitations defenses Under Proctor v. State, we originally held that a statute-of-limitations defense “is forfeited if not asserted at or before the guilt/innocence stage of trial,” thereby placing it in Marin’s third category.10 Yet more recently in Phillips v. State, we distinguished between two types of limitations defenses: (1) those that are “based on facts” and (2) those that are “pure law.”11 Whereas the first type merely “gives rise to a limitations factual defense” because it requires factual development beyond the charging

2015Phillips v. State’s distinction between factual and pure-law limitations defenses Under Proctor v. State, we originally held that a statute-of-limitations defense “is forfeited if not asserted at or before the guilt/innocence stage of trial,” thereby placing it in Marin’s third category.10 Yet more recently in Phillips v. State, we distinguished between two types of limitations defenses: (1) those that are “based on facts” and (2) those that are “pure law.”11 Whereas the first type merely “gives rise to a limitations factual defense” because it requires factual development beyond the charging

2014Id.

2011See Ieppert, 908 S.W.2d at 218 ("The Court of Appeals did not reach the merits of" the ex post facto claim, "holding instead that appellant forfeited the right to complain of it on appeal because he did not first raise it in the trial court.”), 220 (holding that "ex post facto prohibitions do not merely confer upon the people a waivable or forfeita-ble right not to have their conduct penalized retroactively” and remanding for proceedings consistent with the opinion). .

2025Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (citing Oram v. Gen Am.

2022Conversely, the plaintiff carries the burden to present some evidence in its summary judgment response to support certain doctrines that avoid a statute of limitations defense. “[I]f the defendant carries that burden and conclusively establishes its [limitations] defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run—such as fraudulent 2 concealment, estoppel, or diligent service.” Draughon, 631 S.W.3d at 88-89, citing Exxon Mobil Corp. v. Rincones, 520

2024Ctr., 307 S.W.3d 292, 295 (Tex. 2010) (discussing the plaintiff’s burden with regard to the open-courts exception to the statute-of-limitations defense). 12 In interpreting a statute’s plain language, we construe the words and phrases chosen by the Legislature in context.

2024Ctr., 307 S.W.3d 292, 295 (Tex. 2010) (discussing the plaintiff’s burden with regard to the open-courts exception to the statute-of-limitations defense). 12 In interpreting a statute’s plain language, we construe the words and phrases chosen by the Legislature in context.

2022P. 94; Day v. McDonough, 547 U.S. 198, 205 (2006) (“A statute of limitations defense…is not ‘jurisdictional[.]’”); see also Uddin v. Cunningham, No. 01-18- 00002-CV, 2019 Tex. App. LEXIS 7963 , at **13-16 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, pet. dism’d) (mem. op.) (concluding that the four-year statute of limitations imposed by section 16.004 is an affirmative defense and is not jurisdictional).

2010P. 94; In re City of Georgetown, 53 S.W.3d 328, 332 (Tex.2001); see also Day v. McDonough, 547 U.S. 198, 205 , 126 S.Ct. 1675 , 164 L.Ed.2d 376 (2006) (“A statute of limitations defense ... is not ‘jurisdictional,’ hence courts are under no obligation to raise the time bar sua sponte.”).

2022Conversely, the plaintiff carries the burden to present some evidence in its summary judgment response to support certain doctrines that avoid a statute of limitations defense. “[I]f the defendant carries that burden and conclusively establishes its [limitations] defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run—such as fraudulent 2 concealment, estoppel, or diligent service.” Draughon, 631 S.W.3d at 88-89, citing Exxon Mobil Corp. v. Rincones, 520

2019Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990); see also Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) ("[A] cause of action can generally be said to accrue when the wrongful act effects an injury.").

2019This first factor is sometimes referred to as whether an alternate forum is “available.” See, e.g., In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016) (orig. proceeding) (per curiam); In re Pirelli Tire, L.L.C., 247 S.W.3d 670 , 677–78 (Tex. 2007) (orig. proceeding) (plurality op.); id. at 683 (Willett, J., concurring); cf. In re Ford Motor Co., 591 F.3d 406 , 412–13 (5th Cir. 2009). 7 The Supreme Court of Texas has “held that the defendant had demonstrated the availability of an adequate forum [in Mexico] by stipulating that it would submit to personal jurisdiction in Mexico an

2019This first factor is sometimes referred to as whether an alternate forum is “available.” See, e.g., In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016) (orig. proceeding) (per curiam); In re Pirelli Tire, L.L.C., 247 S.W.3d 670 , 677–78 (Tex. 2007) (orig. proceeding) (plurality op.); id. at 683 (Willett, J., concurring); cf. In re Ford Motor Co., 591 F.3d 406 , 412–13 (5th Cir. 2009). 7 The Supreme Court of Texas has “held that the defendant had demonstrated the availability of an adequate forum [in Mexico] by stipulating that it would submit to personal jurisdiction in Mexico an

2011Id. at 267 .

2008Id. at 267 .

2011Ex 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). .

2011Ex 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). .