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Texas Eliminates Next-Grand-Jury-Session Limitation On Indictments

by Matthew T. Clarke

On December 6, 1006, the Texas Court of Criminal Appeals (CCA) held unconstitutional the provision of Article 28.061, Texas Code of Criminal Procedure (CCP), requiring dismissal of a prosecution with prejudice if an indictment is not brought against a defendant in jail or on bail “at the next term of the court which is held after his commitment or admission to bail,” pursuant to former Article 32.01, CCP.

Edward Michael Young, a Texas state prisoner, was convicted of murder. He had been released on bond on September 20, 1991, but was not indicted until February 16, 1993. Thus, he was eligible to have his prosecution dismissed with prejudice pursuant to Article 28.061. However, Young’s attorney failed to raise this issue during Young’s trial.

Several years later, Young filed a state petition for a writ of habeas corpus claiming ineffective assistance of counsel for the failure to raise the Article 28.061 issue. The CCA dismissed the petition because the Legislature had amended Article 32.01 so that a failure to timely indict no longer no longer triggered a dismissal of the prosecution with prejudice.

Young then filed a federal petition for a writ of habeas corpus raising the same claim. The federal district court granted relief. Young v. Dretke, 356 F.3d 616 (2004). The state appealed and the Fifth Circuit upheld the district court’s judgment.

After Young received federal habeas corpus relief, Texas reindicted him for the same murder. Young filed a pretrial state petition for a writ of habeas corpus, asserting his right to a dismissal of the prosecution under the versions of Articles 28.061 and 32.01 applicable to his case. The trial court denied relief, finding that the enforcement provision of Article 28.061 violates the separation of powers provision of the Texas Constitution. Young appealed and the El Paso court of appeals overturned the trial court’s decision, finding that the version of Article 28.061 in question was constitutional. The state appealed.

The CCA held that the enforcement provision of Article 28.061, CCP, “violates the separation of powers doctrine of the Texas Constitution because it seriously disrupts a prosecutor’s ability to perform his duties, it does not effectuate a superior constitutional interest, and it was not contractually submitted to by the prosecution.” Even though the U.S. Court of Appeals for the Fifth Circuit may have properly granted habeas corpus relief on Young’s ineffective assistance of counsel claims, the CCA had not resolved the question of the constitutionality of the enforcement provision of Article 28.061. “Thus, while the Fifth Circuit decision granted relief on appellant’s ineffective assistance of counsel claim, that decision merely returned the case to the trial court for further proceedings. In those further proceedings, the trial court held that the enforcement provision in the version of Article 28.061 applicable to this case was unconstitutional and, therefore, the indictment could not be dismissed with prejudice.” Therefore, the judgment of the court of appeals was reversed and the case returned to that court for further proceedings consistent with the CCA’s opinion. See: Ex parte Young, 213 S.W.3d 327 (Tex.Crim.App. 2006).

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Related legal case

Ex parte Young