# Ex Parte Matthews > Texas Court of Appeals, 1st District (Houston) · January 2, 1995 · 892 S.W.2d 208 URL: https://www.frixlaw.com/law-library/cases/9680004 ## Case - **Full name:** Ex Parte Jean MATTHEWS, Appellant - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** January 2, 1995 - **Citations:** 892 S.W.2d 208; 1995 Tex. App. LEXIS 4; 1995 WL 2857 - **Precedential status:** Published - **Opinion:** Dissent by Oliver-Parrott - **Judges:** Oliver-Parrott, O'Connor, Wilson - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680004 ## Opinion text OLIVER-PARROTT, C.J., dissenting. *212 DISSENTING OPINION ON REHEARING ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS OLIVER-PARROTT, Chief Justice. I respectfully dissent. The word “accused” refers generically to a criminal defendant. I would find the statute of limitations was tolled once the appellant left Texas, and deny her writ of habeas corpus. The appellant argues that the use of the term “accused” in article 12.05(a) creates a statute that is so vague that a person of common intelligence must necessarily guess at its meaning. The State contends there is no ambiguity — the word accused refers to a criminal defendant, the person who now stands charged by indictment or information. I believe the State is clearly correct. The appellant is the criminal defendant and the one accused. The language of the statute refers to the person who is now the “accused.” There is nothing to suggest that the accused had to be charged before leaving the state. The appellant allegedly committed a crime and left the state. We should hold the tolling statute applies once a person commits a crime and leaves the state. Although it does not appear the appellant left Texas to avoid detection, we should be compelled to apply the tolling statute. I would also address the appellant’s constitutional challenges and hold the tolling statute does not violate the Commerce Clause, the Privileges and Immunities Clause, the Equal Protection Clause or the Due Process Clause. Courts in other jurisdictions have upheld similar challenges to tolling statutes. The Supreme Court of New Mexico upheld a similar challenge to the state’s tolling statute in State v. Cawley, 110 N.M. 705 , 799 P.2d 574 (1990). In Cawley , the defendant was charged with the rape of his 10-year-old stepdaughter, criminal sexual contact of a minor, and contributing to the delinquency of a minor, 20 years after the crime was committed. Id. 799 P.2d at 575-76 . Sometime after the crime, the defendant moved to Texas, where he lived for 11 years. Id. The defendant contended the tolling statute violated his right to travel under the Equal Protection and the Privileges and Immunities clauses of the Constitution. The New Mexico court held the defendant qualified his right to travel when he left the state, and upheld the conviction. Id. 799 P.2d at 577 . 1 The Supreme Court of Wisconsin upheld a challenge to its tolling statute in State v. Sher, 149 Wis.2d 1 , 437 N.W.2d 878 (1989). In Sher , the defendant was charged with the theft of a boat from a marina eight years after the crime was committed. Id. 437 N.W.2d at 880 . The defendant contended the statute of limitations barred his prosecution, but the State argued that the time period was tolled when the defendant moved to Florida. Id. The supreme court upheld the defendant’s conviction, finding the state’s tolling statute did not violate the Privileges and Immunities or the Equal Protection clauses of the Constitution. Id. 437 N.W.2d at 881-884 . The court noted that the tolling provision applied even if the defendant did not flee the state to avoid prosecution. Id. 437 N.W.2d at 881 . 2 A Pennsylvania superior court upheld a challenge to the state’s tolling statute in Com v. Lightman, 339 Pa.Super. 359 , 489 A.2d 200 (1985). In Lightman , the defendant and his company were charged with bribery and conspiracy five years after the offense occurred. Id. 489 A.2d at 202 . The defendant contended the two-year statute of limitations barred his prosecution, but the state contended the defendant and his company’s absence from the state for five years tolled the running of the statute of limitations. Id. 489 P.2d at *213 202-203. The defendant challenged the constitutionality of the statue as violative of his right to travel under the Equal Protection and Privileges and Immunities clauses of the Constitution. Id. 489 P.2d at 203. The court held that if the defendant remains in the state after the commission of a crime, authorities are more likely to detect the crime, identify the defendant, and avoid extradition proceedings. Id. The court reasoned that this assumption justified tolling the statute of limitations for the period during which the defendant may have avoided detection by leaving the jurisdiction. Id. 489 P.2d at 203-204. 3 In Scherling v. Superior Court of Santa Clara Cty., 22 Cal.3d 493 , 149 Cal.Rptr. 597 , 585 P.2d 219, 223-24 (1978), the Supreme Court of California discussed the right to travel when someone has committed a crime. [Tjhere is clearly a distinction between one, who, like the defendant, leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily. Id. I agree with the reasoning in Scherling . I would deny the writ of habeas corpus. . The New Mexico tolling statute in effect in Cawley stated that a tolling of the statute of limitations is authorized for the period a "defendant shall conceal himself, or shall flee from or go put of the state.” NMSA 1953, § 40A-l-9(a) (Repl.Vol.1964), repealed by NMSA 1978 § 30-1-9(A) (Repl.Pamp.1984) (emphasis added). In its opinion, the New Mexico court did not address the meaning of the word "defendant.” . The Wisconsin tolling statute in effect at the time Sher was decided read, "In computing the time limited by this section, the time during which the actor was not publicly a resident within this state or during which a prosecution against him for the same act was pending shall not be included.” W.SiA. 939.74(3) (emphasis added). . The Pennsylvania tolling statute in Lightman stated that the limitations period is tolled “during any time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within Commonwealth." 18 Pa.C.S. § 108(f)(1) (repealed) (emphasis added). The court did not address the meaning of the word "accused.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680004. Public record. Not legal advice.