What a statute of limitations does
Statutes of limitations protect the system in three ways. They preserve evidence quality by requiring prosecution while witnesses' memories are fresh and physical evidence is intact. They prevent prosecutors from holding old cases as leverage. And they give defendants the practical ability to defend themselves — reconstructing the truth about an event a decade old is very different from reconstructing the truth about something that happened last year.
Texas treats limitations as a procedural matter, not an element of the offense. That means the State does not have to plead and prove timeliness in the indictment. Instead, the defense raises the issue by motion to quash under art. 27.08(2), and the State then has the burden to prove the indictment was timely or that tolling applied.
The Texas limitations categories
Texas groups offenses into seven categories under art. 12.01 plus the general misdemeanor rule in art. 12.02.
| Period | Offenses | Citation |
|---|---|---|
| No limit | Murder; capital murder; manslaughter; leaving the scene of a fatal accident; sexual assault and aggravated sexual assault where biological matter was collected and a DNA profile obtained; continuous sexual abuse of young child or disabled individual; indecency with a child; human trafficking; continuous trafficking; compelling prostitution of person under 18 | art. 12.01(1) |
| 20 years from victim's 18th birthday | Sexual assault of a child under § 22.011(a)(2); aggravated sexual assault of a child under § 22.021(a)(1)(B); indecency with a child | art. 12.01(2) |
| 10 years from victim's 18th birthday | Other sex offenses involving minor victims not covered above | art. 12.01(3) |
| 10 years | Theft by executor, administrator, trustee, or guardian; theft by public servant; forgery or passing a forged instrument; injury to elderly, disabled, or child; arson; trademark counterfeiting; continuous family violence under § 25.11 | art. 12.01(4), (4-a) |
| 7 years | Aggregated theft under § 31.09; money laundering; tax-code violations; Medicaid fraud; credit-card or debit-card abuse; false statement to obtain credit; tampering with evidence | art. 12.01(5) |
| 5 years | Theft (non-aggregated); burglary; robbery and aggravated robbery; kidnapping; abandoning or endangering child; insurance fraud; breach of computer security | art. 12.01(6) |
| 3 years | All other felonies (catch-all) | art. 12.01(7) |
| 2 years | All misdemeanors (Class A, B, and C) | art. 12.02 |
Note that the categories overlap for some offenses. Sexual assault, for example, can fall into "no limit" if biological evidence exists, "20 years from victim's 18th birthday" if the victim was a minor without biological evidence, or "10 years" for some adult-victim cases. The State frames the case to fit the longest applicable window; the defense scrutinizes the framing.
When the clock starts
The general rule under art. 12.04: the limitations period runs from the day after the offense was committed up to (but not including) the day the indictment is presented.
Two important exceptions modify the start date:
- Victim's 18th birthday rule. For sex offenses against minor victims covered by art. 12.01(2) and (3), the clock starts on the victim's 18th birthday rather than the date of the offense. A 16-year-old victim of a 20-year-from-18 offense has until their 38th birthday to see charges filed.
- Continuous-offense statutes. Offenses defined as a "course of conduct" — continuous sexual abuse of young child (§ 21.02), continuous family violence (§ 25.11), continuous trafficking (§ 20A.03), aggregated theft (§ 31.09) — have their clock start at the time of the LAST act in the course of conduct.
Tolling under art. 12.05
Tolling is the legal term for stopping the clock. Two scenarios under art. 12.05 toll the Texas limitations period:
- Absence from the state (art. 12.05(a))
- Any time the accused is absent from Texas does not count toward the limitations period. A defendant who fled to Oklahoma for three years effectively extends the SoL by three years. The State carries the burden of proving absence if the issue is raised.
- Pendency of a prior indictment (art. 12.05(b))
- If an indictment was timely filed but later dismissed for a procedural defect (a "fatal variance," missing element, etc.), the time during which it was pending does not count against the State for a re-indictment. This is narrow: it does not save indictments dismissed on the merits or for insufficient evidence.
How to raise the limitations defense
Texas treats limitations as an affirmative defense the defense must raise. If you do not raise it, you waive it — even if the State indicted years late.
The procedural mechanics:
- Pretrial motion to quash. Under art. 27.08(2), the defense files a written motion to quash the indictment as time-barred. This should be done as early as practicable — ideally before announcing ready for trial.
- Hearing on the motion. The trial court holds a hearing. The defendant typically does not have to testify; the motion is decided on the indictment's face plus any statutory tolling proof the State offers.
- State's burden. Once limitations is raised, the State has the burden to prove the prosecution was timely. If the indictment is silent or ambiguous about timing, this often turns on tolling: was the defendant absent from Texas? Was there a prior dismissed indictment?
- If granted, the indictment is dismissed, and the State is permanently barred from re-prosecuting that offense.
A specific procedural point that catches some defendants: a guilty plea or no-contest plea waives the limitations defense unless it was preserved by motion to quash before the plea. So if you have any reason to suspect the State indicted past the deadline, file the motion before you negotiate.
Federal limitations periods
Federal crimes follow federal limitations periods, not Texas. Most federal felonies have a five-year default under 18 U.S.C. § 3282. Several categories have longer periods or none:
- No limit: Capital offenses, terrorism offenses under § 2332b(g)(5), certain sex offenses against children (§ 3299)
- 10 years: Wire or mail fraud affecting financial institutions (§ 3293); arson (§ 3295)
- 8 years: Certain firearms offenses (§ 924(c) penalty enhancement)
- 5 years: Default for most federal felonies (§ 3282)
Federal cases against Texas defendants are filed in the Northern District (TXND) or Eastern District (TXED) depending on geography. Limitations issues in federal court are raised the same way — pretrial motion before plea or trial.