In Texas, the statute of limitations for burglary of a habitation is five years from the date of the offense, with one significant exception: there is no time limit at all if the burglary was committed with intent to commit sexual assault and biological evidence was collected during the investigation. The five-year clock can also be paused in certain situations, so the real deadline for prosecution is often longer than five calendar years.
The Five-Year Rule
Article 12.01 of the Texas Code of Criminal Procedure sets a five-year limitations period for burglary of a habitation charged as a second-degree felony, which is the most common version of the offense.1State of Texas. Texas Code of Criminal Procedure Article 12.01 – Felonies The clock starts on the date the alleged burglary occurs, and the state must obtain an indictment before it runs out. Miss the deadline, and the right to prosecute is gone.
This is the version that applies when someone enters a home intending to commit theft or assault. If five years of countable time pass without an indictment, the case cannot go forward.
The No-Limit Exception
Article 12.01 removes the time limit entirely when two conditions are both met:
- The offense is punishable as a first-degree felony under Penal Code Section 30.02(d) because the defendant entered the habitation intending to commit sexual assault under Section 22.011 or aggravated sexual assault under Section 22.021.
- Biological matter was collected during the investigation that either has not yet been subjected to forensic DNA testing, or was tested and did not match the victim or any other readily identifiable person.
When both boxes are checked, prosecutors can bring charges at any time, no matter how many years have passed.1State of Texas. Texas Code of Criminal Procedure Article 12.01 – Felonies The provision is written for cold-case DNA hits that identify a suspect long after the fact. If only one of the two conditions is present, the standard five-year rule governs.
How the Five-Year Clock Gets Paused
Two situations stop the limitations period from running, which means the actual deadline can stretch well past five calendar years.
The first is the defendant’s absence from the state. Under Article 12.05 of the Code of Criminal Procedure, any time the accused spends outside Texas does not count toward the limitation period.2State of Texas. Texas Code of Criminal Procedure Article 12.05 – Absence From the State Someone who commits a burglary and then lives out of state for three years before returning still leaves the state with the full five years of in-state time to charge.
The second is a pending accusation. If the state files an indictment, information, or complaint, the clock stops from the date of filing until a trial court determines the accusation is invalid.2State of Texas. Texas Code of Criminal Procedure Article 12.05 – Absence From the State Time spent litigating a defective indictment does not count against the state’s deadline to re-file.
What Counts as Burglary of a Habitation
Whether the five-year rule applies to a given situation depends on how the offense is defined. Texas Penal Code Section 30.02 covers three types of conduct: entering a habitation without the owner’s consent with intent to commit a felony, theft, or assault; hiding inside with that same intent; or entering and then actually committing or attempting one of those crimes.3State of Texas. Texas Penal Code 30.02 – Burglary
Two points matter for whether the charge, and its five-year clock, is in play. There is no traditional “breaking and entering” requirement: crossing the threshold with any part of the body or any object connected to the body counts as entry. And the structure must be a “habitation,” meaning any building or vehicle adapted for overnight accommodation, including houses, apartments, RVs, and separately secured units. An attached garage counts.
What Happens When the Clock Runs Out
Once the limitations period expires, taking any tolled time into account, the state loses the power to prosecute. An expired statute of limitations is a complete defense: if the court confirms that five years of countable time have passed without an indictment, the case must be dismissed. New evidence or a new theory does not revive it.
A dismissal on limitations grounds is not an acquittal. It ends the specific prosecution but does not erase the underlying conduct from the record.
Civil Lawsuits Run on a Different Clock
A burglary victim can sue civilly for property damage, trespass, or conversion regardless of what happens on the criminal side. Texas gives only two years for those claims under Civil Practice and Remedies Code Section 16.003, running from the date of the harm.4State of Texas. Texas Civil Practice and Remedies Code Section 16.003 – Two-Year Limitations Period That is much shorter than the criminal window, and the two timelines are independent. Waiting for the criminal case to resolve before filing a civil suit is a common way for victims to lose the right to recover money.