180-Day Speedy Indictment Rule is Merely Procedural

What happens when the State drags its feet in presenting an indictment or information against a person who is incarcerated or otherwise in custody?  Can that person have his case dismissed with prejudice when the State fails to move quickly in charging?  Unfortunately, th best he can hope for is to buy some time by having the case dismissed thereby releasing him from custody while the State pursues its indictment.  The State will then be forced to re-arrest the defendant once it finally obtains an indictment or drafts an information.

Article 32.01 of the Texas Code of Criminal Procedure provides:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, 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 on or before the last day of the next term of the court which is held after his commitment or admission to bail on of before the 180th day after the date of commitment or admission to bail, whichever date is later.

Jeffrey Paul Schroeder argued on appeal that his indictment was defective because it was not presented within this 180-day time frame.  In a concise and pointed opinion (HERE) upholding the conviction for intoxication manslaughter, the 9th District Court of Appeals (Beaumont) explained why Mr. Schroeder's claim failed:

[A]rticle 32.01 does not create a substantive right that frees a person from prosecution for the commission of an offense. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). Instead, article 32.01 creates a procedural right to be dismissed from custody under certain circumstances until the grand jury has been presented with an indictment. After the presentment to the grand jury of an indictment on the offense at issue, article 32.01 is no longer applicable. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999). In most cases, “the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution . . . .” TEX. CODE CRIM. PROC. ANN. art. 15.14 (Vernon 2005).

In this case, Schroeder did not obtain a ruling on his motion to dismiss before the grand jury returned its indictment. Therefore, when the trial court ruled on Schroeder‟s motion, and because the grand jury had at that point returned an indictment, the trial court was no longer required to release Schroeder from custody. See Ex parte Countryman, 226 S.W.3d 435, 436-39 (Tex. Crim. App. 2007) (in a habeas proceeding, holding that a “speedy-indictment claim” was moot when the indictment had been returned before the trial court heard the motion to dismiss the indictment). Because Schroeder had already been indicted by the grand jury when the trial court denied his motion to dismiss the indictment, a dismissal of his indictment was no longer required. Id.