# Ex Parte Ward > Court of Criminal Appeals of Texas · January 18, 1978 · 560 S.W.2d 660 URL: https://www.frixlaw.com/law-library/cases/9773552 ## Case - **Full name:** Ex Parte Scottie Gene WARD - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 18, 1978 - **Citations:** 560 S.W.2d 660; 1978 Tex. Crim. App. LEXIS 1003 - **Precedential status:** Published - **Opinion:** Dissent by Douglas - **Judges:** Douglas, Odom, Vollers, Davis - **Cited by:** 37 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/9773552 ## How later opinions describe it (automated extraction) - holding a complaint filed in justice court does not toll the statute of limitations in a felony case ## Opinion text DOUGLAS, Judge, dissenting. The question presented, in essence, is whether a court of “competent jurisdiction”, as this term is used in Article 12.05, V.A.C.C.P., refers only to a court which has the power to enter a judgment in a particular ease, or whether it also refers to a court which has the authority at the time of acting to do a particular act. The majority errs in adopting the narrower construction of the term and, as a result, incorrectly holds that a complaint filed in a justice court will not toll the running of the statute of limitations in a felony case. 21 C.J.S. Courts § 22 (1940), states, in part: “The term ‘competent jurisdiction’ is susceptible of two meanings; it may signify that the court must acquire and exercise jurisdiction competent to grant an application, through and by reason of a strict conformity to the requirements of a statute, or it may signify jurisdiction over the subject matter, a sort of authority in the abstract, to hear and determine a case. . “A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act; . . . ” (Italics supplied). *663 Black, Law Dictionary (4th ed. 1968), states that the term “competent authority,” as applied to courts, “imports jurisdiction and due legal authority to deal with the particular matter in question. . . Article 15.03, V.A.C.C.P., authorizes a magistrate to receive a complaint and issue a warrant of arrest, and Article 2.09, V.A.C. C.P., provides that the justices of the peace are magistrates within the meaning of the statute. Thus, it is beyond dispute that the justice court in the present case had the power and authority to act on the matter before it — the complaint charging appellant with rape — although it had no power to determine the issues of law and fact in the case or to render a judgment based upon such a determination. The opinion in State v. Hemminger, 210 Kan. 587 , 502 P.2d 791 (1972), is instructive. In that case, defendant committed first degree robbery on September 20, 1964. A complaint was verified and filed in the court of common pleas at Wichita, Kansas, on November 4, 1964. A warrant of arrest was issued on that date but never served. Defendant was incarcerated in the State of Missouri from the date the original warrant was issued until he was extradited in 1969. An amended complaint was filed and an amended warrant was issued on April 29, 1969, and defendant was bound over for trial in the district court on May 28, 1969. He was tried and convicted in 1970. On appeal, defendant contended that the filing of the original complaint and the issuance of the original warrant did not constitute commencement of prosecution within the meaning of the Kansas statute. He thus argued that the prosecution was barred by the two year statute of limitations applying to robberies. The Supreme Court of Kansas observed at the outset that K.S.A. 62-602 required that complaints in criminal cases be made to a magistrate and that such magistrate must determine whether a warrant should issue. The court then determined that the court of common pleas at Wichita had the same jurisdiction in criminal cases as was then given to justices of the peace and that consequently such court was a magistrate court within the contemplation of the statute. K.S.A. 62-505 provided that where an indictment or information is defective and is quashed, set aside or judgment thereon reversed, “the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.” Holding that the pendency of a complaint as well as the pendency of an indictment or information met the provisions of the statute so as to toll the statute of limitations, the court reasoned that the original complaint was verified and filed in a court of “competent jurisdiction” and that such a court was one “having jurisdiction to entertain the complaint and issue the warrant.” 502 P.2d at 796 . Thus, the court concluded that the pendency of the complaint filed in the court of common pleas, coupled with the issuance of the warrant thereon, tolled the statute of limitations even though the information was not filed in the district court within two years from the date of the offense. Although not controlling in the case at bar, certain well established principles relative to the criminal statutes of limitation tend to support the view of the court in Hemminger that a felony complaint filed in a justice court will interrupt the running of the statute. The general rules in this regard are stated in 21 Am.Jur.2d, Criminal Law, Section 161 (1965): “The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued; . . .” (Italics supplied and footnotes omitted). *664 Similar statements with respect to the filing of a complaint and the issuance of a warrant are found in 22 C.J.S. Criminal Law § 234 (1961), and 1 Wharton, Criminal Law and Procedure Section 184 (12th ed. 1957). Cases supporting this proposition include People v. Clement, 72 Mich. 116 , 40 N.W. 190 (1888); State v. Erving, 19 Wash. 435 , 53 P. 717 (1898); Clayton v. State, 122 Ala. 91 , 26 So. 118 (1899); State v. Simpson, 166 Ind. 211 , 76 N.E. 544 (1906); Jarrett v. State, 49 Okl.Cr. 162 , 292 P. 888 (1930); State v. Gardner, 112 Conn. 121 , 151 A. 349 (1930); State v. Emanuel, 153 So.2d 839 (Fla.App.1963); Commonwealth v. Manni, 223 Pa.Super. 403 , 302 A.2d 374 ; People v. Robins, 33 Ill.App.3d 634 , 338 N.E.2d 222 (1976); and McMorris v. State, 26 Md.App. 660 , 338 A.2d 912 (1975), aff’d 277 Md. 62 , 355 A.2d 438 (1976). In State v. Disbrow, 130 Iowa 19, 28 , 106 N.W. 263, 266 (1906), it was stated: “The beginning of a prosecution and a finding of an indictment are not equivalent expressions. A prosecution is begun when an information [complaint] is filed before a magistrate and a warrant issued for the defendant’s immediate arrest. An indictment is found when it is presented by the grand jury in due form in open court and filed with the clerk. This distinction has been widely, though perhaps not universally, recognized. (Citations omitted).” This writer finds no precedent which should commit Texas to a rule by which the filing of an indictment or information or complaint in a court in which the case can be tried is the only method of interrupting the running of the statute of limitations for felony offenses. Ex parte Lacey, 6 Okl. 4 , 37 P. 1095 (1894), and State v. Smith, 200 La. 337 , 7 So.2d 368 (1942), relied upon by the majority in footnote 3 to its opinion, are distinguishable. Ex parte Lacey involved a habeas corpus proceeding in the Supreme Court of Oklahoma wherein petitioner contended the statute of limitations barred his prosecution. He had been charged with perjury by a complaint filed before a United States Commissioner within the limitation period. The pertinent statute, Section 1044, Rev.St. U.S., read as follows: “No person shall be prosecuted, tried or punished for any offense not capital, except as provided in section one thousand and forty-six unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.” The court held that a complaint filed before a commissioner would not toll the running of the statute and granted relief because no indictment or information had been filed within the prescribed period. The decision, however, turned on the fact that the statute made no reference to charges brought by complaint. In State v. Smith, the Supreme Court of Louisiana held that an indictment must be returned in a court which has jurisdiction to try the case in order to interrupt the running of the statute of limitations. The statute in question, however, made no mention of the filing of a complaint or other preliminary proceedings. Hattaway v. United States, 304 F.2d 5 (5th Cir. 1962), is not on point. There, defendant was charged by information with kidnapping and subsequently convicted. The conviction was vacated eight years after the crime was committed because he had been charged with a capital offense and, thus, should have been charged by indictment. The government then indicted him for the offense of kidnapping a person who was liberated unharmed and obtained a conviction. On appeal, defendant contended that the prosecution was barred because the indictment had been returned after the running of the controlling statute of limitations. The government argued that the case fell within the ambit of 18 U.S.C.A. Section 3288 , and that the filing of the information had tolled the running of the statute of limitations. Section 3288 provided: “Whenever an indictment is dismissed for any error, defect or irregularity with respect to the grand jury, or is found otherwise defective or insufficient for *665 any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court, following the term at which such indictment was found defective or insufficient, during which a grand jury shall be in session which new indictment shall not be barred by any statute of limitations.” After a thorough analysis of the government’s position, the court concluded that the term “indictment” means indictment, and did not mean, as the government had contended, any formal accusation or charge of wrongdoing. The court held that the filing of the information did not toll the running of the statute of limitations and reversed the conviction. It is clear that a contrary result would have been reached if Section 3288 had made reference to the filing of an information or complaint, as Article 12.05, supra, does. It is significant that Article 12.05 is directed to the filing of an indictment, information or complaint in a court of competent jurisdiction, and that it does not state the charging instrument must be filed in a court having jurisdiction to try the case. The Legislature’s intent in enacting this provision was not only to extend the period of limitation in cases where an indictment or information is filed within the prescribed period, but also to extend such period where a complaint is filed in good faith by the State before the statute has run and there is insufficient time to present an indictment or information. The majority fears that to permit the filing of a complaint in a justice court to toll the running of the statute could allow a felony charge to burden an accused during the remainder of his life. But there is no vested right to escape from prosecution; statutes of limitation are acts of grace, a surrendering by the sovereign of its right to prosecute. See 22 C.J.S. Criminal Law § 223 (1961), and cases there cited. Moreover, the accused can protect himself from the danger that the statute will be tolled indefinitely by demanding a hearing. 1 Like the court in State v. Hemminger, supra, the justice court in the instant case had jurisdiction to entertain the complaint and issue an arrest warrant. No reason appears why petitioner should be in a more favorable position that an accused in a similar case where the charging instrument was filed in a court having jurisdiction to try the case. We should hold that the filing of a felony complaint in a justice court will toll the running of the statute of limitations. And since the indictment in this case alleged facts tolling the limitation period, see Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975), we should further hold that such indictment is not void on its face. The relief sought should be denied. ODOM, VOLLERS and W. C. DAVIS, JJ., join in this dissent. . See Tex.Laws 1977, ch. 787, at 1970, effective as of July 1, 1978. This Act, relating to a speedy trial in criminal cases, amends the Code of Criminal Procedure, 1965, as amended, by adding Chapter 32A, by adding Articles 17.151 and 28.061, and by amending Articles 29.02 and 29.03. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773552. Public record. Not legal advice.