Ex parte Lawson

• Decision Date: 26 December 1996
• Docket Number: No. 04-96-00265-CR,04-96-00265-CR
• Parties: Ex parte Rachel Rene LAWSON.
• Court: Texas Court of Appeals

Page 532

966 S.W.2d 532

Ex parte Rachel Rene LAWSON.

No. 04-96-00265-CR.

Court of Appeals of Texas San Antonio.

Dec. 26, 1996.

Rehearing Overruled March 18, 1998.

Michael C. Gross, San Antonio, for Appellant.

Robert Boyd Padgett, Asst. Crim. Dist. Atty., San Antonio, for Appellee.

Before the court en banc.

OPINION

HARDBERGER, Justice.

This is a case in which Lawson was tardily indicted in clear violation of a Texas statute. The defendant must be released unless good cause is shown for the late indictment. Further, in cases such as this, another statute demands that the discharge bars all further prosecution. A person who could be guilty may go unpunished. This is an unfortunate result, but less damaging in the long run than to construe laws to have no meaning. Si a jure discedas, vagus eris, et erunt omnia omnibus incerta. (If you depart from the law, you will go astray, and everything will become uncertain.) SIR EDWARD COKE, THE LAWS OF ENGLAND OR A COMMENTARY ON LITTLETON 227.

Procedural Facts

Rachel Rene Lawson was arrested on December 29, 1995, for possession of less than one gram of cocaine. She was released on bond two days later, December 31, 1995. This date also marked the end of the November term of the grand jury which runs for two months in Bexar County. The January term of the grand jury ran from January 1 to March 3, 1996. The State had until March 3 to get Lawson indicted, but they did not do so in that time period. The next term, the March term, ran from March 4, 1996 through May 5, 1996. On the first day of that term, March 4, Lawson filed an application for writ of habeas corpus and moved for dismissal of prosecution with prejudice. Three days later the grand jury indicted her. The trial court heard evidence on the motion for dismissal on March 11 and denied relief. We reverse and remand to the trial court for further proceedings consistent with this opinion.

Discussion of the Law

Habeas corpus, which Sir William Blackstone called the most celebrated writ in the English law, and others have named "the great writ of liberty," is ancient. There are references to its use prior to the signing of the Magna Carta and it was formally adopted in the Habeas Corpus Act of 1679. ² In our own country it was thought important enough to include in the Constitution. The writ tests only whether an accused has been accorded due process, not whether he or she is guilty. It orders a person to be brought forward to a specific place, at a specific time, and for a specific purpose. Through the centuries it has been used to force the State to move forward, and not to keep someone under arrest without a timely indictment and trial. To use the vernacular, the State must "get on with it."

The "Next" Term

Indictments, following arrest, must be timely, or they are to be dismissed. Reasonable people might disagree about what "timely" means, so the legislature has decided what that is. In this case, it says:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.

TEX.CODE CRIM. PROC. art. 32.01 (Vernon 1989).

As statutes go this is not overly difficult to understand. The prosecution of the defendant shall be dismissed unless the indictment or information is presented against the defendant at the next term of court. The terms of court are also defined by statute:

(a) The 187th Judicial District is composed of Bexar County.

(b) The 187th District Court shall give preference to criminal cases.

(c) The terms of the 187th District Court begin on the first Mondays in January, March, May, July, September, and November. Each term continues until the court has disposed of the business for that term.

TEX. GOV'T CODE § 24.366 (Vernon 1989).

Applying the law to these facts, Lawson was arrested and released on bond in the November term of 1995. The next term, the January term, ran through February. Unless there was good cause shown, she had to be indicted in that term. She was not. Nor was good cause shown.

The State, in an effort to establish good cause for the late indictment, filed an affidavit which pointed out that the grand jury for the November term had already been discharged when Lawson was arrested. ³ That is a good reason she was not indicted in the November term. See Norton v. State, 918 S.W.2d 25, 30 (Tex.App.--Houston [14th Dist.] 1996, pet. filed) (J. Hudson, concurring op.) (statute permits extension where "unusual circumstances" frustrate State's attempts to timely indict). But it offers no explanation of why she was not indicted in the following January term, the term where indictment is required by the statute. If good cause is going to be shown it must be directed as to why indictment did not happen in that term. The State, in the record before us, is entirely silent on any good cause reasons why the indictment did not happen in the January term.

The State argues in its brief that the term in which Lawson was arrested should not count because the grand jury had already been dismissed, but they offer no law to support such a concept. The statute that defines the terms refers only to calendar days and months. It is not tied to when the grand jury is in or out of session. The law specifically says, "Each term continues until the court has disposed of the business for that term." TEX. GOV'T CODE § 24.366(c). The term is when the statute says it is:

(b) Except as otherwise provided by this chapter, the terms of each district, family district, and criminal district court are continuous. Each term begins on a day fixed by law and continues until the day fixed by law for the beginning of the next succeeding term.

(c) The commencement of a term of court is not affected by the fact that the first day of the term falls on a legal holiday or the judge is absent from the court on the first day of the term.

TEX. GOV'T CODE § 24.012 (Vernon 1988).

The calendar defines terms of court, not the State or the court's activities. Article 32.01, in requiring that the indictment be brought in the next term of court, accommodates those occurring at the end of a term or when the grand jury is not sitting in that term. Even in the worst of circumstances the Bexar County district attorney will always have at least two months in which to bring the indictment.

It can be argued that even two months is too short a time in which to bring the indictment. But that is the Legislature's business: not the court's. The State also points out that other districts in the state have been allotted different time limits for their terms, ⁴ Judges on the campaign trail always promise they will uphold the law as written, and not what they wish was written. The separation of powers doctrine requires such obedience. Having so promised, and being so bound by law, we follow the statute.

and therefore the laws are inconsistent. This may well be true, but we are not dealing in this case with other districts of the state. We are dealing with the 187th Judicial District and we are dealing with a clear, specific statute. We are reminded yet again that:

Sims v. Adoption Alliance, 922 S.W.2d 213, 214 (Tex.App.--San Antonio 1996, writ ref'd).

Dismissal with Prejudice

Having found the indictment was issued in violation of Article 32.01, we now turn to the effects of the dismissal:

If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article or Article 32.01 of this code is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

TEX.CODE CRIM. PROC. art. 28.061 (Vernon 1989). In short, the dismissal is with prejudice.

Lawson, through her attorney, filed the application for writ of habeas corpus on the first day of the March 1996 term. This is as timely as you can get. It was the first day the writ could have been filed. Any earlier day would have been premature because it would have been during the term in which the State could have issued the indictment. After the defendant filed the writ petition on the first day of the new term, the State then took the case before the grand jury and got an indictment. This was too late. Although the hearing on Lawson's motion occurred after the indictment was returned, that was neither Lawson's fault nor a matter within her control. It is the trial judge, burdened with a heavy docket, who sets the hearing date. The defendant's job is to timely make the motion and to appear at the hearing when the trial court is able to hear the matter. Any different interpretation places an impossible burden on the defendant, and eviscerates article 32.01.

We recognize that today's holding is in conflict with some of the language of this court's holding in Wilkinson v. State, 899 S.W.2d 20 (Tex.App.--San Antonio 1995, pet. ref'd). To the extent that there is a conflict, we overrule those parts of Wilkinson that are in conflict. This harmonizes the law with the holdings in other courts of appeal that are contrary to Wilkinson.

Wilkinson

and Other Case Law Discussion

Wilkinson, like the present case, involved a late indictment. A habeas corpus petition was filed pursuant to articles 28.061 and 32.01. The State filed a good cause affidavit and also obtained an indictment the day before the habeas corpus hearing. The trial court denied relief on the ground of mootness. Unlike the...