Keel, J.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

Keel, J., delivered the opinion of the Court, in which Keller, P.J., and Hervey, Richardson, Newell, and McClure, JJ., joined. Yeary, J., filed a dissenting opinion, in which Walker, J., joined. Slaughter, J., concurred in the result.

OPINION

Keel, J.

Is a statute-of-limitations challenge to a sexual assault indictment cognizable in pretrial habeas? We hold it is not because an indictment that alleges sexual assault without also alleging other facts may be amended to show that the prosecution is not barred by limitation. A defendant has other available remedies. He may challenge a sexual-assault prosecution as time barred via a motion to dismiss or as a defensive issue at trial, but he may not via pretrial habeas.

I. Background

In 2017 Appellant was indicted for aggravated sexual assault alleged to have been committed in 2003. He filed an application for pretrial habeas corpus seeking dismissal of the charge as barred by the ten-year statute of limitation. Tex. Code Crim. Proc. art. 12.01(2) (E). The State argued that there was no limitation on the prosecution because of an exception to the general limitation period-biological matter collected during the investigation "has been subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained[.]" Tex. Code Crim. Proc. Art. 12.01(1)(C)(i)(b). The trial court denied relief, but the court of appeals reversed and ordered relief to be granted. Ex parte Edwards, 608 S.W.3d 325, 337 (Tex. App.-Houston [1st Dist.] 2020). It reasoned that one of the conditions for applying the exception-what the testing results show-was not proven at the habeas hearing. Id. at 336. We granted the State's petition for discretionary review to decide, among other things, whether Appellant's statute-of-limitation claim was cognizable in pretrial habeas. Since we hold that it was not cognizable, we reverse the judgment of the court of appeals without addressing the State's other grounds for review.

II. Pretrial Habeas and Statutes of Limitation

Pretrial habeas is an extraordinary remedy. Ex parte Ingram, 533 S.W.3d 887, 891(Tex. Crim. App. 2017). It is reserved for cases where "the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review." Id. (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Denial of relief in pretrial habeas implicates the right to an interlocutory appeal, itself an extraordinary remedy. See Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010). Consequently, appellate courts take care to foreclose from pretrial habeas "matters that in actual fact should not be put before appellate courts at the pretrial stage." Id. (quoting Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam)).

Pretrial habeas is "unavailable when the resolution of a claim may be aided by the development of a record at trial." Doster, 303 S.W.3d at 725; Ingram, 533 S.W.3d at 892(quoting Weiss, 55 S.W.3d at 620). It is also usually unavailable to test the sufficiency of a charging instrument. Doster, 303 S.W.3d at 724. An exception to the rule against testing the sufficiency of the charging instrument via pretrial habeas is made for claims involving a constitutional right to avoid trial, such as double jeopardy. Ex parte Perry, 483 S.W.3d 884, 899 (Tex. Crim. App. 2016) (plurality op). But a statute- of-limitation claim is not constitutionally based. Proctor v. State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998) (noting that the statute of limitation is a procedural rule).

Nevertheless, an exception to the bar against pretrial habeas as an avenue for testing the sufficiency of a charging instrument has historically been found where the face of the indictment "shows that the prosecution is barred by limitations." Doster, 303 S.W.3d at 724 (citing, inter alia, Weise, 55 S.W.3d at 620; Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App. 2001)). The statute-of-limitation exception traces back to Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex. Crim. App. 1977). Doster, 303 S.W.3d at 724 (noting, "Statements in our recent cases trace their lineage to the 1977 decision in Ex parte Dickerson.").

The exception was justified by an understanding that a charging instrument whose face showed that the prosecution was barred by limitation was "so fundamentally defective" that it deprived the trial court of jurisdiction. Dickerson, 549 S.W.2d at 203; see also Weise, 55 S.W.3d at 620 (noting that when the pleading, on its face, shows that the offense charged is barred by limitation, the applicant is challenging the trial court's power to proceed). Indeed, the defect was so serious that the Dickerson court took cognizance of it on its own initiative. Dickerson, 549 S.W.2d at 203.

But two changes in the legal landscape undercut the view that an apparent limitation bar to prosecution deprived a trial court of jurisdiction: (1) a 1985 constitutional amendment and (2) our decision in Proctor v. State. Doster, 303 S.W.3d at 724 (recognizing that the rationale for Dickerson was undercut by Texas Constitution, Article V, Section 12(b) and Proctor, 967 S.W.2d at 844-45).

As relevant here, the 1985 amendment to Article V, Section 12 of the Texas Constitution defined an indictment as "a written instrument presented to a court by a grand jury charging a person with the commission of an offense" and specified that an indictment's presentment to a court "invests the court with jurisdiction of the cause." Tex. Const. art. V, § 12(b).

Under this provision an indictment is still an indictment even if it has a defect of substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990) (holding that omission of an element from an indictment is a defect of substance, but the indictment is still an indictment). An apparent limitation bar is a defect of substance. Tex. Code Crim. Proc. art. 27.08(2). But an apparently limitation-barred charging instrument "still confers jurisdiction upon the trial court, such that the defendant must bring the defect to the attention of the trial court in order to preserve any error." State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993).

Proctor also undermined Dickerson when it abandoned a longstanding requirement that the State must always disprove a limitation bar to prosecution. Proctor, 967 S.W.2d at 843-44. Proctor held instead that a statute of limitation claim must be asserted by the defense at or before the guilt phase of trial before the State must disprove it. Id. at 844. A defendant may raise a limitation claim before trial by a motion to dismiss under Texas Code of Criminal Procedure Article 27.08(2), he may raise it at trial as a defense, or he may waive it. Proctor, 967 S.W.2d at 844.

Smith suggested that Proctor might have dispensed with the need to allege tolling absent a defendant's statute-of-limitation claim in a motion to dismiss or quash the charging instrument. Smith, 178 S.W.3d at 804, n.33. Instead of deciding that question, however, it characterized tolling as an exception to the statute of limitation and held that even a defective tolling paragraph is sufficient to show on the face of the indictment that the prosecution is not barred by limitation. Id. at 802. Defects in a tolling paragraph are reparable and "do not destroy a trial court's power or jurisdiction to proceed," and so "may not be raised by means of a pretrial writ of habeas corpus." Id. at 803.

A "reparable" defect is one that "could have been repaired had the defect been brought to the trial court's attention before trial." Id. In Tita v. State, the defect in the indictment-the State's failure to include a tolling paragraph-was brought to the trial court's attention before trial via a motion to dismiss. 267 S.W.3d 33 (Tex. Crim. App. 2008). We said the trial court erred in denying Tita's motion and noted, "Had the trial court granted appellant's motion to dismiss, then, presumably, the State could have amended the indictment and the prosecution could have proceeded. Id. at 38 n.6 (citing Tex. Code Crim. Proc. art 28.09).

In contrast to the indictment in Tita, the perjury indictment in Tamez was not subject to repair. Tamez, 38 S.W.3d at 159. The issue was whether the statue-of- limitation clock was started by the first or second statement. Either the clock started when the first statement was made, and the indictment was outside the statute of limitation, or the clock started when the second statement was made, and the indictment was within the statute of limitation. Id. at 160. The statute-of-limitation claim was cognizable on pretrial habeas because there was nothing to consider beyond the face of the indictment. Id. at 161. Tamez dealt with the rare indictment that would not be subject to repair; Tamez's statute-of-limitation claim presented a purely legal question, not a factual one.

But the legislature has chosen to promulgate factually based exceptions to some general statutes of limitation. For example, the statute of limitation for aggravated kidnapping generally is five years. Tex. Code Crim. Proc. art. 12.01(4)(B) (setting limitation period for kidnapping at five years); id. at art. 12.03 (specifying "aggravated" offenses generally carry the same limitation period as the primary crime). But if the investigation "shows that the victim is younger than 17 years of age" when kidnapped, then the limitation period is 20 years from the victim's 18^th birthday. Id. at art. 12.01(5)(B). Bigamy is another example. It generally has a seven-year limitation. Id. at art. 12.01(3)(J). But if the investigation "shows that the person, other than the legal spouse of the defendant, whom the defendant marries or purports to marry or with whom the defendant lives under the appearance of being married is younger than 18 years of age" when the offense is committed, then the limitation is ten years from the victim's 18^thbirthday. Id. at art. 12.01(6)(C).

Sexual assault of a child has no limitation, id. at 12.01(1)(B), but sexual assault of an adult has two possible limitations or no limitation. The general limitation is ten years. Id. at art. 12.01(2)(E) (setting limitation of ten years from date of offense). But sexual assault punishable under Texas Penal Code § 22.011(f)(2) has a two-year limitation measured against "the date the offense was discovered[.]" Tex. Code Crim. Proc. art. 12.01(7). Sexual assault of an adult has no limitation if biological matter is collected during the investigation and "has not yet been subjected to forensic DNA testing[.]" Id. at art. 12.01(1)(C)(i)(a). It has no limitation if biological matter is collected, and "probable cause exists to believe that the defendant has committed the same or a similar sex offense against five or more victims[.]" Id. at art. 12.01(1)(C)(ii). And there is no limitation if the biological matter collected during the investigation "has been subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained[.]" Id. at art. 12.01(1)(C)(i)(b).

An indictment returned outside a general statute of limitation may be reparable by resort to an exception. If so, then a statute-of-limitation claim is not cognizable on pretrial habeas. That does not mean the indictment is "immune" to a limitation bar; it only means that the issue must be raised in a motion to quash and/or as a defense at trial.

III. Analysis

To satisfy the requirement of Code of Criminal Procedure Article 21.02(6), the State should have included facts in the indictment to show that the prosecution was not limitation barred. But its failure to do so was a reparable defect.

Appellant's claim is not a constitutional one whose underlying rights require vindication before trial. See Perry, 483 S.W.3d at 899. Nor does it call into question the trial court's jurisdiction. See Tex. Const. art. V, § 12(b). Rather, his limitation claim is based on a procedural statute that is an "act of grace." See Proctor, 967 S.W.3d at 843. The statute-of-limitation violation on the face of this indictment is reparable. Smith, 178 S.W.3d at 803. The State may amend the indictment to allege an exception to the general 10-year statute of limitation. See Tex. Code Crim. Proc. arts. 12.01(1)(C)(i)(b); 28.09. For the foregoing reasons, Appellant's limitation claim is not cognizable in pretrial habeas. He may instead assert it by a motion to dismiss under Article 27.08(2) or as a defense at trial. See Proctor, 967 S.W.3d at 844.

IV. Conclusion

The court of appeals was mistaken both in addressing the merits of Appellant's claim on interlocutory appeal and in granting habeas corpus relief. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Yeary, J., filed a dissenting opinion in which Walker, J., joined.

We all agree that the indictment in this case appears to show- on its face-that the offense it charges Appellant with committing is barred by limitations. It alleges neither any tolling facts nor any of the specific statutory circumstances, set out in Article 12.01(1)(C)(i) of the Texas Code of Criminal Procedure, that would take it out of the ordinary ten-year limitations period for sexual assault. Tex. Code Crim. Proc. arts. 12.01(1)(C)(i), 12.01(2)(E). This Court has long observed that an accused may challenge such an indictment in pretrial habeas corpus proceedings, and it has reiterated that observation even after Proctor v. State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998), which held that limitations is "in the nature of a defense[.]" See Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App. 2001) ("[I]f the pleading, on its face, shows that the offense charged is barred by limitations, then it is appropriate that habeas corpus relief be granted.").

In reliance upon Tamez, the court of appeals essentially assumed without elaboration that the issue is cognizable in pretrial habeas corpus proceedings, and it proceeded to address the merits. Ex parte Edwards, 608 S.W.3d 325, 327 n.5 (Tex. App.-Houston [1st Dist.] 2020). And it makes perfect sense, after all. It defeats the whole concept of limitations to allow a prosecution to proceed apace when the law itself forecloses even charging the accused with the crime in question, much less proceeding to try him for it in a court of law.

The fact that it is a statute that forecloses prosecution rather than a constitutional provision, such as the Double Jeopardy Clause, should be of no moment. Either way, it is completely irrational to force a criminal defendant to endure a full-blown trial before he may be afforded an opportunity to vindicate his lawful right to avoid having to endure a full-blown trial. But that is what the Court's opinion today seems to approve.

The Court invokes Ex parte Smith, 178 S.W.3d 797 (2005), for the proposition-at least as I understand it-that pretrial habeas will no longer be available as a vehicle through which a limitations bar may be asserted by persons accused of sexual assault-period, ever. Majority Opinion at 6. The reason the Court gives is simple, if stark. Article 12.01(1)(C)(i) identifies certain circumstances under which there will be no limitations with respect to sexual assault. So, the Court seems to conclude, an indictment for sexual assault-even one that wholly fails to allege any of those circumstances in which no limitations apply to that offense-still avoids a limitations bar, if only because it could at least potentially be "repaired" by adding those allegations in response to a pretrial motion to quash or dismiss. Id. But Smith does not support such a sweeping and categorical holding.

Smith involved prosecution for an ordinary assault. 178 S.W.3d at 800. The dates alleged in the information would have indicated that it was being filed outside the applicable statute of limitations. Id. But the information also included a tolling paragraph. Id. Smith attempted to challenge the sufficiency of the tolling paragraph by way of a pretrial application for writ of habeas corpus. Id. This Court recognized that pretrial habeas corpus remains an appropriate vehicle for raising a legitimate limitations challenge. Id. at 802. But it refused to extend pretrial habeas proceedings to cover Smith's claim, holding that even a flawed tolling paragraph would suffice to remove a charging instrument from the category of those that show on their face that an offense is barred by limitations. Id. at 803-04. "Only when an indictment shows on its face that prosecution is absolutely barred by the statute of limitations, and that pleading is not reparable, may a defendant seek relief from further prosecution via a pretrial writ of habeas corpus." Id. at 804.

Smith did not involve a wholesale failure to plead a tolling provision. It likewise did not involve a wholesale failure to plead any circumstances that would avoid a limitations bar altogether. It is not analogous, therefore, to the instant case. Here, the State made no attempt to plead facts in the information to show that Appellant was not subject to limitations for his particular sexual assault, under the provisions of Article 12.01(1)(C)(i). There was no faulty pleading of Article 12.01(1)(C)(i) facts that Applicant could "repair" by filing a pretrial motion to quash or dismiss the information. There was simply no Article 12.01(1)(C)(i) pleading at all.

Article 12.01(2)(E) of Code of Criminal Procedure provides that sexual assault is limitations barred after ten years, "except as provided by Subdivision (1) or (7)." Tex. Code Crim. Proc. art.12.01(2)(E). For all Appellant (or any of us, for that matter) can tell from the indictment in this case, the offense he is charged with having committed is limitations-barred. And such an indictment is plainly "not sufficient" under Article 21.02(6). Tex. Code Crim. Proc. art. 21.02(6) ("The time mentioned [in an indictment] must be . . . not so remote that the prosecution of the offense is barred by limitation."). Smith does not establish otherwise.^[1]

From what I can gather, the Court seems to think that a charging instrument that alleges a sexual assault that occurred outside of the ordinary 10-year limitations period, but that alleges no Article 12.01(1)(C)(i) circumstances, is nevertheless immune to a limitations bar-simply because Article 12.01(1)(C)(i) exists. The Court seems to conclude that, because the State can invoke Article 12.01(1)(C)(i) at any time, such a charging information is always "reparable," and therefore, the State need not actually allege the exceptional circumstances- provided by Article 12.01(1)(C)(i)-in order to avoid the ordinary limitations bar. But it is far from a given in any particular case that the State will have the wherewithal to prove up those circumstances.

Indeed, Applicant has already brought the deficiency in the charging instrument in this case to the attention of both State and the trial court by filing his application for pretrial habeas corpus relief. The State was given the opportunity to plead exceptional circumstances, and it seems to have been unable to produce facts sufficient to satisfy the Article 12.01(1)(C)(i) criteria-at least if we are to credit the court of appeals' opinion. See Edwards, 608 S.W.3d at 336-37 (concluding that the State failed to establish that the results of forensic DNA testing of biological matter did not match the victim or any other person whose identify was readily ascertained, as required by Article 12.01(1)(C)(i)). Rather than hold the issue non-cognizable from the get-go, the Court today should consider whether the court of appeals was correct on the merits.

I would affirm the judgment of the court of appeals because the issue is cognizable in a pretrial habeas corpus proceeding (or at least it was before the Court's opinion today), and because the indictment suggests, on its face, that the offense alleged therein is limitations- barred.

Because the Court does not, I respectfully dissent.