OPINION
Aрpellant, David Cepeda Ancira, appeals the district court’s denial of his application for writ of habeas corpus. Appellant raisеs two points of error, contending that (1) the trial court erred in denying his application for writ of habeas corpus because he had been incarсerated for over 90 days without the state announcing ready, and (2) the trial court abused its discretion by resetting appellant’s bail at an amount that was still exсessive. Based on appellant’s first point of error, we reverse the judgment of the trial court and grant appellant’s writ of habeas corpus. Accordingly, we do not reach the merits of appellant’s second point of error.
On May 31, 1996, a Harris County grand jury returned an indictment charging appellant with pоssession of at least 400 grams of cocaine with intent to manufacture or deliver. At the time of his indictment, appellant had already been incarcerated nearly a month— since May 8,1996. The trial court set bail at $800,000. On July 8, 1996, appellant filed a writ of habeas corpus with the trial court, requesting that his bail be reducеd from $800,000 to $10,000. The hearing on appellant’s application was.held on September 9, 1996, 124 days after his initial incarceration. Appellant presented uneontroverted evidence at the hearing that he could only afford a $50,000 bond. The trial court denied appellant’s application but sua sponte reduced his bail to $200,000. Appellant now appeals from that denial.
Article 17.151 of the Code of Criminal Procedure, entitled “Release because of delay,” provides, inter alia:
A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:
(1) 90 days from the commencement of his detention if he is accused of a felony;
TexCode CRiM. PROC. Ann. art. 17.151 (Vernon Supp.1996). The Legislature couched 17.151 in unmistakably mandatory terms: “[I]f the State is not ready for trial within 90 days after commenсement of detention for a felony ... the trial court has two options: release upon personal bond or reduce the bail amount.”
Rowe v. State,
The recоrd in this ease contains no showing by the State that it was ready for trial within 90 days of the commencement of appellant’s detention. Under art. 17.151, the State beаrs the burden of making a prima faeie showing that it was ready within the 90 day period, either by announcing within the allotted time that it is ready, or by announcing retrospeсtively that it had been ready within the allotted time.
Barfield v. State,
The State contends, howеver, that the trial court did not err in refusing to release appellant because Article 17.151 violates the separation of powers provision of the Texas Constitution by unduly interfering with the court’s authority to set bail. Tex. Const, art. II, § 1. The separation of powers provision forbids one branch of government from (1) аssuming, or being delegated, a power that is more “properly attached” to another branch,
Ex parte Giles,
While the Legislaturе may not usurp judicial functions, it wields ultimate constitutional authority over judicial administration.
Id.
The Legislature has “complete authority to pass any law regulаting the means, manner, and mode of assertion of any of [a defendant’s] rights in the court.”
Meshell v. State,
The Court of Criminal Appeals, contemplating whethеr art. 17.151 violated the separation of powers provision by unduly interfering with the
prosecutorial
function, held that 17.151 did create a new right.
Jones v. State,
The Jones court determined 17.151 did not infringe upon a prosecutorial function, but did not decide the “potentially prickly” question of whether 17.151 intеrfered with the “uniquely judicial function” of setting bail. Id. at 716 n. 3. However, under Jones ’ reasoning, the right created by 17.151 falls within the constitutionally mandated power of the legislature and does not violаte separation of powers by interfering with the powers of the judiciary. First, the Jones court noted that the Legislature may create a new right under its general рlenary power only “if that right [does] not infringe upon another department’s separate power.” Id. at 716. Then, later in the opinion, the Court asserted that “surely it is within the plenary power of the Legislature to provide that under certain circumstances an accused be released pending the outсome of his trial.” Id. at 717. If the Legislature may only exercise its plenary, power when that exercise does not infringe on the powers of another deрartment, and the Legislature “surely” may exercise its plenary power to create a right such as that contained in 17.151, the legislative creation of 17.151 сould not infringe upon the separate power of the judiciary. We therefore conclude that in passing 17.151 the Legislature did not assume a power thаt is more “properly attached” to another branch, or unduly interfere with another branch so that branch could not effectively exercise its constitutionally assigned powers. We hold that under 17.151, appellant is entitled to be released either on personal bond or by a reduction in the amount of the bail required. See id. at 718.
As set forth above, the record in this case reflects that appellant can afford a maximum bond of $50,000. We have held that appellаnt is entitled, pursuant to 17.151, to be released either on personal bond or by reduction in the amount of the bond required. The trial court elected to reduce appellant’s bond to $200,000, an amount in excess of what the record reflects appellant can afford. Such action is inconsistent with the Court оf
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Criminal Appeal’s interpretation of article 17.151 in
Rowe
that if the trial court chooses to reduce the amount of bail required, it
must
reduce bail to an amount that the record reflects the accused can make in order to effectuate release.
Rowe,