Ex Parte Matthews

¶1dissenting.

¶2The question presented is whether a defendant may utilize pretrial habeas corpus to assert the invalidity of a tolling provision in the statute of limitations. Because I disagree with the Court’s affirmative answer to that question, I dissent.

¶3The Facts

¶4In January 1991 a Harris County grand jury indicted appellant Jean Matthews for aggravated perjury, a felony offense which she allegedly committed in June 1981. See Tex.Penal Code § 37.03(a). Because a prosecution for aggravated perjury is normally barred by the statute of limitations three years after the date of the offense,1 the indictment alleged that the statute of limitations had been tolled by appellant’s absence from the state.2 In a pretrial application for writ of habeas corpus filed in the trial court, appellant contended that the prosecution against her was limitations barred nonetheless because the statute of limitations’ tolling provision was unconstitutional. She argued in particular that the tolling provision violated Texas Constitution article I, § 19 (due course of law clause), and United States Constitution article I, § 8, cl. 3 (commerce clause); article IV, § 2, cl. 1 (privileges and immunities clause); and amendment XIV (due process clause).

¶5After an evidentiary hearing on appellant’s application, the trial court denied relief. Appellant then appealed the trial court’s ruling, but the First Court of Appeals dismissed the appeal for want of jurisdiction. Ex parte Matthews, 846 S.W.2d 152 (Tex.App.—Houston [1st Dist.] 1993). The court of appeals held that appellant’s arguments were not of the type that could be reviewed in a pretrial habeas corpus proceeding and that she “must make those complaints in a regular appeal after trial on the merits.” Id., at 154-155. We granted appellant’s petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred.

¶6The Law

¶7The final judgment rule provides that piecemeal appellate review of litigation is generally inappropriate and therefore appeals ordinarily should be allowed only from a final judgment. “The final judgment rule, as applied to both civil and criminal cases, reflects a determination that, on balance, postponing appeal until a final judgment is reached both protects the interests of the litigants in a fair and accessible process and conserves judicial resources.” W. LaFave & J. Israel, Criminal Procedure § 27.2, at 1138 (2nd ed. 1992). Because of the importance of the final judgment rule to the orderly and efficient administration of justice, it should be subject to exception only where the protection of the defendant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review. Id., at 1140.

¶8In line with these principles, we have held that habeas corpus is an extraordinary remedy that should not be entertained where there is an adequate remedy by appeal after final judgment. Ex parte Clore, 690 S.W.2d 899, 900 (Tex.Crim.App.1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Thus, a defendant may not use pretrial habeas corpus to assert, e.g., his constitutional rights to a speedy trial or due process. Ex parte Delbert, 582 S.W.2d 145 (Tex.Crim.App.1979) (speedy trial); Ex parte Gonzales, 667 S.W.2d 932, 935 (Tex.App.—*45Austin 1984, pet. ref'd) (due process). On the other hand, a defendant may use pretrial habeas corpus to assert his constitutional protections with respect to double jeopardy and bail, because if he were not allowed to do so, those protections would be effectively undermined. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982) (double jeopardy); Ex parte Keller, 595 S.W.2d 531, 532-533 (Tex.Crim.App.1980) (bail).

¶9We have also allowed defendants to utilize pretrial habeas corpus to assert the invalidity of the very penal statutes under which they were charged, although the justification for allowing this exception to the final judgment rule has never been made explicit and, indeed, might be considered problematic. See, e.g., Ex parte Boetscher, 812 S.W.2d 600 (Tex.Crim.App.1991); Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.2d 754 (1962). We apparently reasoned in such cases that subjecting a defendant to a trial grounded on an invalid penal statute was fundamentally unjust and that there was no adequate remedy by appeal.

¶10Finally, we have allowed defendants to use pretrial habeas corpus to challenge indictments that showed on their face that the charged offenses were barred by limitations. See Ex parte Ward, 560 S.W.2d 660 (Tex.Crim.App.1978); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Crim.App.1977). Our stated rationale in those cases was that the indictments were so flawed that they denied the trial court jurisdiction. That rationale was utterly destroyed, however, by the 1985 amendment to Texas Constitution article V, § 12(b), which now commands explicitly that “[t]he presentment of an indictment ... to a court invests the court with jurisdiction of the cause.” Earlier this term, in State v. Yount, 853 S.W.2d 6, 8 (Tex.Crim.App.1993), we specifically stated that after the 1985 amendment, “an indictment which charges the commission of an offense barred by limitations still confers jurisdiction upon the trial court.”

¶11Conclusion

¶12In light of our present law, it is plain to me that appellant may not use pretrial habeas corpus to assert a claim that she may adequately assert on appeal when, and if, she is ultimately convicted. The constitutional rights asserted by appellant will not be undermined by the postponement of review until after conviction. She may not now rely upon Ward and Dickerson, because those cases were effectively abrogated by constitutional amendment. Nor may she rely upon the very narrow exception to the final judgment rule exemplified by Meyer, because she does not assert the invalidity of the penal statute under which she has been charged. Moreover, given the problematic basis for the rule exemplified by Meyer, I would not extend it to appellant’s circumstances.

¶13I would affirm the judgment of the court of appeals. Because of the majority’s refusal to do so, I dissent.