Ex Parte Matthews

¶1concurring.

¶2At issue in the instant case is the statutory interpretation of Tex.Code Crim. Proe. Ann. art. 12.05(a), which provides:

The time during which the accused is absent from the state shall not be computed in the period of limitation.1

¶3I.

¶4In Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991), we stated the “lawmaking” function is assigned to the Legislature and the “law interpreting” function is assigned to the judiciary. Tex. Const, art. II, § 1. In discharging this assignment, the judiciary “seek[s] to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin, 818 S.W.2d at 785. See also, Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989). To determine legislative intent, we focus first on the literal text of the statute because this is the only definitive evidence of what the legislators intended when the statute was enacted into law. Boykin, 818 S.W.2d at 785. If the statute is clear, the inquiry is over. However, if the statute is not clear, Hines v. State, 906 S.W.2d 518, 521 (Tex.Cr.App.1995), but rather is ambiguous, susceptible to multiple interpretations, Murdock v. State, 870 S.W.2d 41, 42 (Tex.Cr.App.1993), and Muniz v. State, 851 S.W.2d 238, 244 (Tex.Cr.App.1993), or would lead to an absurd result, Basden v. State, 897 S.W.2d 319, 321 (Tex.Cr.App.1995), then and only then should courts consider “extratextual factors” to determine legislative intent. These factors may include executive or administrative interpretations of a statute, Boykin, 818 S.W.2d at 786, consequences of construction, State v. Mancuso, 919 S.W.2d 86 (Tex.Cr.App.1996), practice commentaries, Hines, 906 S.W.2d at 521, legislative history, Basden, 897 S.W.2d at 322, and Murdock, 870 S.W.2d at 41, the rules of statutory interpretation, Tex. Gov’t Code Ann. § 311 et seq., and/or legislative floor debate, Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Cr.App.1991). If a statute is subject to two interpretations, one reasonable and the other unreasonable, we prefer the former interpretation. Muniz, 851 S.W.2d at 244. *139Finally, when the Legislature meets, after a particular statute has been judicially construed, without changing the statute, we presume the Legislature intended the same construction should continue to be applied to the statute. Marin v. State, 891 S.W.2d 267, 271-272 (Tex.Cr.App.1994); Moore v. State, 868 S.W.2d 787 (Tex.Cr.App.1993); Watson v. State, 532 S.W.2d 619, 622 (Tex.Cr.App.1976); and State v. Daugherty, 931 S.W.2d 268, 273 (Tex.Cr.App.1996)(Baird, J., concurring).

¶5II.

¶6A majority of the Court of Appeals interpreted art. 12.05(a) to require proof that the defendant was “formally accused” of committing a crime at the time she left the State. Ex parte Matthews, 892 S.W.2d 208, 210-211 (Tex.App. — Houston [1st Dist.] 1995). The dissent, however, would have interpreted “accused” to mean the person now accused. Id.,892 S.W.2d at 212 (Oliver-Parrott, C.J., dissenting). Thus, this case presents a classic example of a statute’s use of a term which is not plain but is susceptible to multiple interpretations. In these situations the judiciary is required to consider extratextual factors to determine the legislative intent when the statute was enacted. See I., supra.

¶7Tex. Gov’t Code Ann. § 311 et seq., commonly referred to as the Code Construction Act, is intended to aid in statutory interpretation. Id. §§ 311.002 and 311.003. The Act instructs:

(a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.

(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

¶8Id. § 311.011. Therefore, under the Act the Court of Appeals was asked to consider the common usage of accused and determine if that term has acquired a technical or particular meaning.

¶9To determine its common usage, the Court of Appeals considered the definitions of “accused” provided by Webster’s 3rd New International Dictionary,2 The English Oxford Dictionary,3 and the Black’s Law Dictionary.4Matthews, 892 S.W.2d at 210-211. The Court of Appeals next considered whether “accused” had acquired a “technical or particular meaning.”5 In Holloway v. State, 780 S.W.2d 787 (Tex.Cr.App.1989), we adopted the definition of accused employed by the Supreme Court in Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986):

[Ajfter a formal accusation has been made ... a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment....

¶10Holloway, 780 S.W.2d at 793. See also, McCambridge v. State, 778 S.W.2d 70 (Tex.Cr.App.1989); and, Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988).

¶11Thus, the Court of Appeals reasoned that under either the “common” or “technical” definition, no person is “accused” unless and until there is a formal accusation of criminal wrongdoing. Applying the Court of Appeals’ interpretation, this definition, art. 12.05(a) reads as follows: “The time during which the *140[person who has been formally charged with a crime ] is absent from the state shall not be computed in the period of limitation.”

¶12III.

¶13The following graphic illustrates a “time line” of a hypothetical criminal prosecution:

¶14[[Image here]]

¶15As noted above, the statute of limitations is automatically tolled when a person is “formally” charged by an indictment, information or a complaint is filed. Art. 12.05(b)6. Therefore, if we held, as the Court of Appeals did, that a person does not become an “accused” until an indictment, information, or complaint is filed, art. 12.05(a) would be meaningless. I agree with the majority that the Legislature could not have intended such a construction. Childress v. State, 784 S.W.2d 361, 364 (Tex.Cr.App.1990); and, Sattiewhite v. State, 786 S.W.2d 271, 289-290 (Tex.Cr.App.1989). Therefore, the Legislature could not have intended the construction adopted by the Court of Appeals. However, we still must determine when one becomes an “accused” under art. 12.05(a).

¶16The majority correctly rejects the State’s contention that “accused” simply refers to one who is later charged with a criminal offense. Ante, 933 S.W.2d at 137. Under such a construction, the statute of limitations would be tolled every time a suspect leaves the state. And, if the suspect resided out of state, there would be no statute of limitations.7 As the Court of Appeals noted, the Legislature could not have intended “the State to delay prosecution until it discovered a crime.” Matthews, 892 S.W.2d at 211. Such a construction thwarts the very intent and purposes of a statute of limitations. Ante, 933 S.W.2d at 137 (“[T]hat prosecutorial authorities exercise all due diligence obtaining and presenting a formal accusation of an offense against a person.”).

¶17I would hold that, for the purposes of art. 12.05(a) one becomes an “accused” at the time of arrest. Only at this point does one become aware that he/she is suspected and may be charged with an offense. The underlying purposes of the statute of limitations are protected and both parties have the ability to diligently investigate and prepare their respective cases. Therefore, I would hold that, under art. 12.05(a), the statute of limitations is tolled when one is absent from the state after having been arrested.8

¶18IV.

¶19Appellant allegedly perjured herself on June 12, 1981. On that date she was a resident of Arizona who came to Harris County to testify on behalf of the State. Appellant was not indicted until January of 1991, a date beyond the applicable limitation period. Moreover, appellant was not arrested within the statute of limitations. Therefore, applying the above analysis, the limitation period was not tolled by art. 12.05(a).

¶20With these comments, I join only the judgment of the Court.

¶30dissenting.

¶31In its opinion on remand, the Court of Appeals decided that the tolling provisions of TEX.CODE CRIM.PROC.ANN. art. 12.05(a) do not apply to persons who have absented themselves from this State until they have been formally accused of committing a crime. *141Ex parte Matthews, 892 S.W.2d 208, at 211 (Tex.App. — Houston [1st Dist.] 1995). The State petitioned us to review whether the Court of Appeals erred when it construed Art. 12.05(a). The majority has decided to affirm the decision of the Court of Appeals. I dissent.

¶32In her dissenting opinion, Justice Oliver-Parrot stated

“The appellant is the criminal defendant and the one accused. The language of the statute1 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 the state to avoid detection, we should be compelled to apply the tolling statute.”

¶33Ex parte Matthews, 892 S.W.2d, at 212.

¶34The Code Construction Act points out that “words and phrases shall be read in context and construed according to the rules of grammar and common usage.” See TEX. GOVT.CODE ANN. § 311.011(a). As Justice Oliver-Parrot pointed out, the word “accused” means only “a criminal defendant, the person who now stands charged by indictment or information.” Ex parte Matthews, 892 S.W.2d, at 212; Oliver-Parrot, J., dissenting. Art. 12.05(a) does not state the person must be accused before they leave or flee. “It is not for the courts to add or subtract from such a statute.” Boykin v. State, 818 S.W.2d 782, at 785 (Tex.Cr.App.1991); citing Coit v. State, 808 S.W.2d 473, at 475 (Tex.Cr.App.1991). The decision of the majority opinion below that an individual must attain the status of being an accused prior to the time they have left, or fled from, the State, is an attempt to write something into the text of Art. 12.05(a) that was not there when the Legislature finished drafting the statute.

¶35The lower court decision which the majority lets stand interprets Art. 12.05(a) so the statute does not include people who commit crimes and flee from, or leave, the State before an investigation and formal charges have caught up to them. So long as that individual remains beyond the reach of the local authorities in another state or country, the statute of limitations for their crimes will not have been tolled and will continue to run while they remain uncharged.

¶36Therefore, I respectfully dissent to the majority’s decision to affirm the decision of the First Court of Appeals.