Meshell v. State

for another of- probable cause to arrest MESHELL, is re- Appellant, fense for which an arrest warrant Fred v. to their quired. To arrive at a solution Texas, Appellee. The STATE of casually

perceived problem, majority State, overrules Bain v. 677 S.W.2d No. 1339-85. State, (Tex.Cr.App.1984), and Dodson v. Texas, Appeals of Criminal Court (Tex.Cr.App.1980), simply 646 S.W.2d 177 Banc. En pretext mere that the instant arrest on the July illegal.

was roughshod This should not ride of this nor in such a

over statutes flippantly

helter-skelter manner overrule precedent which stands

established

path objective. of an today given new mean- judiciary.”

ing “independent to the term

I dissent. DAVIS, J., joins in this

W.C.

dissent.

ONION, Presiding Judge, concurring dissening. agree appellant’s

I oral confession illegally he arrested

was made after the circumstances this case. I

under of Bain dissent, however, overruling to the State, (Tex.Cr.App.1984), (Tex.

and Dodson v. 646 S.W.2d distinguish I those

Cr.App.1980). would dissent, however, to the

cases. I further Appeals. to the Court of We

remand Illinois, Brown apply U.S.

should (1975); L.Ed.2d 416 95 S.Ct. (Tex.Cr.App. 709 S.W.2d 662

Self State, 724 S.W.2d 780 (Tex. 1986); Bell v. ma-

Cr.App.1986), in this Court. What the judicial economy. Once

jority does is not disposes piece- Appeals of this

the Court of matter, undoubtedly will be back

meal cases Such rotation of

before Court. up judicial not add courts does

between finality

common sense or contribute in criminal cases. judgments

TEAGUE, J., opinion. joins this ON APPELLANT’S PETITION

OPINION FOR DISCRETIONARY REVIEW CAMPBELL, Judge. convicted, plea

Appellant was after a property guilty, of the offense of theft of more than less than but $200 valued $10,000. Punishment assessed at five was Depart- in the Texas years confinement Corrections, probated for five ment of years. Appeals, Tenth Court of in an un appellant’s con opinion, affirmed

published Act,” “Speedy Trial and held the viction 1970, 787, 1977, un Leg., p. ch. Acts 65th a defective on the basis of constitutional III, 35, Article of caption or under title § State, Texas Constitution.1 Meshell v. (Tex.App. 10-84-168-CR No. —Waco 10/17/85). appellant’s petition granted We 1) discretionary to determine for review (Act) is un Speedy Trial Act whether violates Article because it II, 1, III, 35, Texas Article of the § § 2) the indict whether Constitution2 against appellant should have ment Jeter, Brooks, Hous- B. William B. Frank or under the under the Act dismissed ton, appellant. for state of the federal or speedy trial clauses Fairfield, Atty., Gage, Co. Robert W. 32A.02, 1(1), V.A.C. Art. constitutions. § Austin, Huttash, VI; Atty., for C.P.; Robert State’s amend. Tex.Const. U.S. Const. I, 10.3 We will affirm. art. § State. Const, addition, 302(c)(4). Ill, (Vernon’s 1984), Cr.R.App.Pro. we note In 35§

1. Tex. art. appellant’s appeal, conflicting direct decisions between at the time of existence of effect provided: Appeals of and the First the Tenth Court bills, bill, Tex.Cr.R.App.Pro. (except general appropriation Appeals. No Second Courts subjects Meshell, 302(c)(1). (caption the various supra embrace to Act Cf. accounts, mon- on account of which State, for and defective), S.W.2d 695 v. Stewart appropriated) more than eys shall contain 1985, pet. granted), (Tex.App. and Wal- —Waco expressed subject, in its which shall one State, (Tex.App.— No. 10-85-164-CR lace any subject embraced in shall be title. But if 1985, pending) (unpublished), with pet. Waco act, expressed in the not be which shall an title, 288, (Tex.App.— Wright 696 S.W.2d only much void as to so such act shall be sufficient) 1985) (caption Act Forth Worth thereof, expressed. so as shall not be (Tex.App. Morgan S.W.2d 465 Ill, 1984). Tex.Const., (Vernon’s Art. 35§ 1985) (caption suffi- to Act [1st] —Houston 1, II, provides: However, ground cient). appellant’s 2. Article granting review, of the State of powers of the Government our review have not restricted we de- into three distinct application shall be divided Appeals’ Texas partments, only to the Court be confided to of which shall 35, each III, supra. Article body magistracy, Those separate to wit: phrased Appellant's ground review was one; Legislative those which are which are Court of broadly, requesting review another, which are and those Executive to Speedy Trial Act ... ”[w]hether another; person, or collec- and no Judicial to Review, (Appellant’s Pet. for unconstitutional.” depart- being these persons, of one of tion 2). granted review p. Court has This ments, properly at- shall exercise Appeals, which decision of the entire others, except in the to either tached instances herein did not violate ruling included permitted. expressly 1, Art. Texas Constitution granted the Tenth Court review because 3. We 303(a). Tex.Cr.R.App.Pro. Tex. Appeals Act unconstitutional. declared ready for trial History State’s failure

I. Procedural days under the within 1983, appellant was early May September On as the basis for dismissal. deputy questioned by County a Walker hearing appellant’s motion investigation of course of an sheriff in the held, revealing By above facts. was pipe. of a truckload of On the theft explanation delay way of an 20, 1983, appel- May about a warrant arresting offered into appellant, County lant’s arrest was issued Walker backlog of stipulation as to the evidence County, ap- teletyped Harris where County. Appellant Harris warrants Appellant known pellant was to reside. agreed, stipulation follows: and the deputy County a Harris was arrested 1) County in Harris May transported to As June sheriff on 1983 and 12,620 out-of-county and County day. the next On there Walker June were 18,000 warrants; prosequi in-county outstanding a motion for nolle granted County the Walker Crimi- because 2) the Harris Sheriff’s Office Attorney nal District had discovered (HCSO) approximately receives 75-100 Free- had the offense been committed in-county felony new warrants each Appellant by a County. stone was no-billed month; each day teletypes and 200-300 County grand re- jury. Appellant Walker 3) deputy has 26 sheriff’s in the HCSO County. turned home to Harris division, working the warrant service 21, 1983, County On June the Walker teams; in 13 man two Sheriffs Office forwarded results 4) attempts approxi- to serve the HCSO investigation County their to the Freestone mately warrants/day but success- 1983, 28, Attorney’s Office. June On approximately fully 500/month. serves arrest, appellant’s by a warrant for issued (R. 11-58). Peace, County Freestone Justice of was response appel- filed The State also by the County received Freestone Sheriff’s dismissal, arguing for lant’s motion warrant, 29, 1983, Office. June On Trial was unconstitutional. which contained an incorrect address part, In the motion stated: residence, appellant’s teletyped was caption The State would show that County July Harris Sheriff’s Office. On 787, 1977, Leg., of said bill 65th Ch. [Acts 21, 1983, County jury grand a Freestone pg. in that it is defective does 1970] appellant felony Appel- indicted for theft. did information not contain sufficient lant not aware was of either warrant as to inform members the indictment. to its and therefore violates content 9,1983, August felony On after the theft Ill, caption requirement and Art. Sec. charge against appellant, had been filed The Texas Constitution. regarding appellant data and the warrant show that the The State would further for his Free- arrest were entered Texas Trial Act is a violation County stone Sheriff’s the Tex- Office onto doctrine, Art. separation of as Crime and the Na- Information Center 1, also Sec. is a violation computer tional Information Center Crime V, 8, Constitution, Sec. Art. Texas Art. 22, 1983, September networks. On V, V, 19, Sec. Art. Sec. County Office sent a Freestone Sheriff’s applicable provisions of the Consti- teletype Sher- second the Harris tution. Office, correcting appellant’s iff’s address requesting help enforcing 1-8). the war- (R. 6, 1984, appellant August rant. On hearing, the trial At the conclusion by an officer the LaPorte arrested with agreed appellant the State court with Department. Police appellant’s violated the but denied had holding Act unconstitu- September appellant On filed a after motion given No pending motion dismiss indictment tional. reason was motion, ruling. against appellant In cited him. court 32A.02, 3, 1984, 1(1), supra, appellant re On October entered a pursuant plea guilty quires ready and was sentenced the State to be for trial within plea bargain preservation that included to a days felony commencement of a after area of the of his claim for “the limited risk of the in criminal action or dismissal constitutionality Speedy Trial Act.” prejudice.5 dictment with Barfield 10, 11). (Record Plea, Guilty pp. On (Tex.Cr.App.1979); S.W.2d appeal, appellant raised his 28.061, supra. felony Art. A criminal ac ground sole of error. claim as his tion commences when indictment brief, appellant responded to supplemental against felony a defendant for a offense is attacks the State’s constitutional filed court or when the defendant is Act and also claimed not to have waived his offense, arrested for the same whichever speedy trial under either the 32A.02, 2(a), supra; occurs first. Art. States or Texas Constitutions. United Euziere v. 648 S.W.2d 704-705 However, (Tex.Cr.App.1983). a defendant Requirement Injury of Present II. must make a claim under the Act before Before a court decides an issue in required prove the State is its readiness. statute, volving constitutionality of a 32A.02, 3, supra; Barfield, Art. party must first assure itself that the rais ing presently injured such a claim has parte Spring, statute. Ex Once a defendant has raised a claim (Tex.Cr.App.1979) respond under State must with requirement cases cited therein. This proof Nor of its readiness trial. Id. stems from our reluctance to decide consti mally, prima showing of readiness facie questions absolutely unless neces tutional take the form an announcement that will 766, sary. parte Salfen, 618 Ex S.W.2d ready the State is for trial and has been Therefore, (Tex.Cr.App.1981). 770 ready required by at all times the Act. Id. Court must assure itself that State’s However, proof may necessary further be constitutional claim is not “based an if the defendant rebuts the announcement apprehension injury.” Spring, of future demonstrating by that the State was not supra. ready days for 120 after com trial within felony mencement of the criminal action. Appeals,

The Court of without cit ing any authority, Id. held that record “[t]he

supports ruling the trial court’s [Sjecuring the defendant’s “... ready not for State was trial within presence is a readiness burden which falls days felony after commencement of this Speedy Trial upon the State under the Meshell, supra, slip op. criminal action.” 775, Act.” 653 S.W.2d Lyles v. correct, Appeals If at 2. the Court of 32A.02, 4(4), (Tex.Cr.App.1983). See Art. required § then the trial court would be (9), (5) supra. if & Even a defendant’s indictment, barring dismiss the thus known, must exert due location is the State prosecution appel from State further obtaining presence for 28.061, diligence in his trial. lant. Art. V.A.C.C.P. It is this 32A.02, 4(5), supra; parte Hilli- Art. Ex prejudice threat of dismissal with that es § ard, 316, (Tex.Cr.App. present injury tablishes in this 687 S.W.2d 1985). Moreover, prosecutor cannot cause. “[t]he V.A.C.C.P., 32A.02, 1(1), pertinent supporting authority 5. Article § 4. The absence is not surprising part, provides: because State conceded to the Appeals Court of that it had violated Article grant a motion to set aside an “A court shall 32A.02,supra, [a]ppellant and "that is entitled to ready for if the state is not indictment ... discharged if said article is in fact [held] trial within: (State’s Ap- Brief in Court of constitutional.” (1) days of a of the commencement However, 2). peals, p. light require- of our is accused of if the defendant criminal action present injury ment that actual occur before felony_” addressing question, a constitutional we need accept the State's concession. Instead, cial, Article e.g., his a sheriff. diligence part on a lack of due excuse exception by 32A.02, 4(10), presence] creates an obtaining the defendant’s [in finger delay resulting at other from ex- pointing prosecutorial the Sheriff some supra, agency.” Lyles, at enforcement than ceptional law a back- circumstance Indeed, prosecutor seeks if a shortage general negligence. log, staff capias, “is defendant he presence of a (Tex. 717 S.W.2d Santibanez responsibility obliged by assigned own [his] Cr.App.1986). though diligence follow to exercise due circumstances, we find that Under these presence of to obtain the the endeavor Appeals correctly held the Court of (Clinton, Id., trial.” at 780 an accused for require- the readiness the State violated J., concurring). obtaining appel- ment case, court instant In the trial days after indict- presence within 120 lant’s readiness appellant rebutted State’s is held ment. the Act unconstitu- Unless showing presence his had not been tional, against appellant indictment at 12 months had obtained until least prejudice. There- must dismissed with time indicted elapsed from the he was fore, we find that the State established County grand jury July Freestone on Act. present injury under the 6, 1984. August This 1983 his arrest obviously period day exceeded the 120 time Caption III. Defective Act. time limit of the Appeals held the Act uncon- Attorney coun- County The Freestone caption finding stitutional after that its vio- 32A.02, 4(10), supra, tered that III, requirement of Article lated the notice delay in preparation excused the Meshell, of the Texas Constitution. trial, obtaining appellant’s pres- vis a vis Appeals, citing 2-3. Court of County Attorney ence.6 The Freestone ar- (Tex.Cr. parte Crisp, 661 Ex gued that the Harris Sheriff De- reh’g denied, App.1983), 661 S.W.2d backlog executing partment’s warrants caption Acts specifically held “exceptional presented circumstance” Leg., p. ch. 65th year delay one excused the arrest- Speedy Trial failed contains the ing appellant. However, before the Court adequate no- provide Legislature with Appeals, of the State that had conceded contents, rendering the Act tice of its thus by failing appel- violated the Act to obtain Meshell, supra. void. presence days lant’s of within 120 indict- 4, infra, ment. See n. at 260. argues Appellant that the of Court case, instant Freestone Appeals incorrectly Crisp, supra. applied County Attorney did the Har not recontact However, need address the merits we through County Department ris Sheriff’s III, claim, of the Article State’s because yearlong delay appellant’s out the arrest. 35, of the Texas Constitution was recent § County Attorney attempt did Nor solely ly Legislature make amended to through enforce some officer the warrant caption responsible re complying for with directly his In the under control. absence quirements. Baggett See showing diligence, of of such due the Act 700, (Tex.Cr.App.1987). Courts County Attorney requires accept longer power “no declare [have] complete responsibility for absence of due act of the unconstitutional appellant subsequent his lack of insufficiency caption.” Id. of the “readiness” for trial. Therefore, Appeals’ decision is the Court of State, 725 S.W.2d 32A.02, 4(10), moot. supra, Article Cf. Coronado does § (vacating re (Tex.Cr.App.1987) exercising prosecutor excuse a from due , appeals on of court of diligence obtaining manding decision pres- a defendant’s Act). caption Speedy Trial by shifting sufficiency of of ence the blame to another offi- 32A.02, 4(10), delay "any period of supra, reasonable § 6. Article allows the State exceptional except day requirement justified by circumstances.” from the time Appeals judgment performing The Court of also overruled the and discretion in holding State’s two alternative prosecutorial bases their exclusive function.” 3, n. infra, Act unconstitutional. See passage nearly years Id.7 After the of ten post. at 260 and discussion If either of promulgation since the of the arguments these are sufficient to hold the very issue is now before Court.8 unconstitutional, Ap- of then Court 1, II, supra, single, tersely Article in a § peals’ upheld, decision must be albeit for a phrased paragraph, provides that the con Therefore, different reason. we now ad- government stitutional division into arguments. dress those departments (Legislative, three Executive Judicial) intact, “except shall remain Separation IV. of Powers expressly permitted.” the instances herein Appeals The of held that the Act separation powers govern This of powers does not violate the ment ensures “that a which has II, doctrine as contained in Article granted department govern to one supra, arguments and overruled the State’s only by ment exercised branch Meshell, without elaboration discussion. parte to the exclusion of others.” Ex supra, at 2. Giles, (Tex.Cr.App. 502 S.W.2d 1974), argues citing Snodgrass State now that the Court of Tex.Cr. Appeals R. incorrectly separa overruled its claim 150 S.W. 162 be- powers requires cause the Act Article tion of doctrine therefore violates su- First, pra, “any attempt by department for two reasons. the Act vio- one government powers lates the clause to interfere with the Giles, being vague require judiciary so as to another is null and void.” citing Rice, legislate guise interpreting parte under the Ex 72 Tex.Cr.R. . Second, (1914) sepa- the Act. S.W. 891 the Act violates the ration depriving clause Although department one has occasional- Attorney Freestone ly exercised a that would otherwise judgment per- exercise and discretion in power of seem to fit within the another forming prosecutorial his exclusive func- department, only approved our courts have argument tion. We will address the latter those actions when authorized an ex- first. See, press provision of the Constitution. e.g., after Soon Trial Act became Ins. Government Services Underwrit- Jones, (Tex.1963) Judge prophesied effective in Clinton ers v. 368 S.W.2d 560 “subject (Legislature provide Trial Act was could separa express power an attack that its effects violate continuance under estab- V, 25, powers provisions tion of II lish rules of court Article Constitution); parte Young- Constitution State of Texas.” Texas Ex Bean, 911, blood, (Tex.Cr.App.1923) Ordunez v. 579 S.W.2d 915 251 S.W. 509 (Clinton, J., contempt (Tex.Cr.App.1979) concurring). (Legislature delegate could not Clinton, Judge suggested power Specifically, power that to committee under limited III, 15, deprives prosecut Trial Act Article of the Texas Constitu- “[t]he § tion). ing attorneys right of their to exercise 919, 103 2764, Chadha, Judge suggested 7. Clinton also the Act 462 U.S. S.Ct. 77 L.Ed.2d upon power (1983) (declaring Immigration "trenches trial of state and Nation 317 affairs, manage including courts to their 244(c)(2), ality some 32 unconstitutional § control of their dockets ... [citations omitted].” bill); years passage original after Northern However, Const, Id. no such claim is made in the Co., Pipeline Pipe Marathon Line 458 v. case, express opinion instant and we no on its 50, 2858, (1982) L.Ed.2d 598 U.S. 102 S.Ct. merits. (declaring Bankruptcy Reform Act of 1978 un date). years constitutional four after effective usurpation

8. We the will not note that Ass’n, Director, Printing Industries But cf. etc. v. long unpro- sanction reason of a receive J., 264, (Tex.1980) (Pope, 600 S.W.2d 270-71 Lane, tested continuation. Rochelle v. 105 Tex. dissenting). 350, 558, See, e.g., 148 S.W. I.N.S. v. Attorney’s office. See case, District argues State that Criminal In the instant the V.T.C.A., 24.179, 44.- Code Government department §§ has Legislative unconstitu- the Therefore, 181, (1986 Pamphlet). 45.181 de- tionally upon the Judicial encroached County Attorney is only the Freestone upon the infringing exclusive partment by duty rep- “to with the constitutional vested discretion of the Freestone prosecutorial in all in the District resent the cases State must deter- County Attorney. We first County. in Freestone and inferior courts” County Attor- the Freestone mine whether V, 21, supra. County Hill Art. See § protection Article under ney is entitled Sheppard, 142 Tex. 178 S.W.2d II, supra. § Stewart, (1944); County 91 Tex. Harris attorney, as county office of as well The (1897).10 S.W. attorney, criminal district district and County Attorney, The Freestone V, Texas in Article the established § granted having the exclusive Constitution: repre department “to within Judicial Attorney, in County for counties which A in all in the District the State cases sent not a resident Criminal District there is courts,” pro and inferior entitled quali- Attorney, shall be elected tected doctrine county, who shall be fied each voters II, 1, supra. in Article contained Governor, and hold commissioned Moore, Moore, (1882). In 57 Tex. years. In his for the term of four office General, Attorney supra, at vacancy case of Court Commissioners department, ar member the Executive county have the shall had the gued that he exclusive County Attorney next appoint until the defaulting prosecute tax collector and County Attorneys general election. The given judge had sureties. The in in all cases represent shall the State County Attorney exclusive control Travis in their the District and inferior courts Supreme of the lawsuit. Id. respective counties; county if any but held Attor Court Travis shall included in a district in which given ney, having specifically been Attorney, there be a District shall V, 21, supra, rep duty, Article “of under Attorneys respective duties District resenting state in suits the dis all County Attorneys shall coun- such courts,” had and inferior exclusive trict regulated by Legislature. ties be (emphasis of the lawsuit. Id. at control elec- Legislature may provide for the conclusion, reaching original). In Attorneys in tion of District such dis- Supreme relied Article tricts, may necessary be deemed as 1, supra, and stated: compensation provision make presumed It constitu- must be Attorneys County Attor- District tion, selecting depositaries of a neys. Attorneys hold of- District shall power, otherwise ex- given unless it is years, fice a term of four and until depositary intended that pressed, qualified. their have successors power, with should exercise exclusive legislature not interfere could which the establishing county attor- By office officer to exer- by appointing some other V, ney the authors of the under (sic) power. cise of placed those officers Constitution department.9 added). (emphasis within Judicial at 314 Id. County, applied county attor- principle, Freestone This Moore, subsequently Attorney neys or a

not created either District complete explanation acknowledge county of the cur- For a We that some duties of 10. more V, 21, supra, sory § manner in Article attorneys might accurately be and district more the various of- creation of however, controls fices of nature; as characterized executive attorney, attor- district criminal district be- the instant case involves a conflict because attorney, ney county The Constitution see of Legislative departments, Judicial tween the Compara- An Annotated the State Texas: unnecessary. such distinctions I, (Austin: George Analysis, ed. Braden Vol tive Council, 1977), pp. Legislative 463-467. 254 Brooks, 366, Brady v. imposed spe-

reaffirmed. 99 Tex. Where certain duties are or However, (1905)11 ampli- 89 powers upon desig- S.W. 1052 cific are conferred doctrine, fying separation powers officer, Legislature nated cannot Supreme Legis- Court did hold that the them nor withdraw ... confer them lature could create new causes of action in abridge others nor them or interfere lodge favor of the state and the exclusive with the to exercise them officer’s duty prosecute such suits in the office of expressly unless the Constitution so Brady, supra. Attorney General. See provides, [emphasis added]. Co., State v. International & G.N.R. 89 Ennis, Id. State v. at 264. Accord 195 562, (1896). appar- Tex. This 35 S.W. 1067 (Tex.Civ.App. S.W.2d 151 Antonio —San power ent encroachment of dis- 1946, n.r.e.); Agey v. American writ ref. county attorneys permissible trict and Co., Liberty Pipe 580, Line 167 583 express provision because an of the Texas 1943), aff’d, (Tex.Civ.App. 141 —Austin provides Attorney Constitution 379, (1943). Tex. 172 S.W.2d 972 “perform General shall such other duties Tex.Const., may required by Although the duties of district or as law.” IV, 22; Brady, supra, county attorneys Art. see 89 S.W. at are not enumerated in V, 21, 1055-56. long recog Article our courts have that, duties, along nized with various civil Recognition by Supreme Court that function, primary prosecute their is “to express the Texas Constitution create pleas of the state in criminal cases.” Bra Legislature to alter dy, 89 S.W. at 1056. Accord Dris supra, county attorney’s duties of a Court, coll v. Harris Com’rs separation office is with consistent (Tex.App. S.W.2d 569 because, powers [14th] doctrine as we noted —Houston 1984, n.r.e.) above, (opinion rehearing); 1, writ ref. on supra, specifically Alaniz, Shepperd 846, provides subject that the doctrine is to ex- 303 S.W.2d ceptions 1957, writ). “expressly permitted” (Tex.Civ.App. in the con- Antonio no —San Compara- Wade, stitution. See Annotated and 236, Cf. Baker v. & n. 743 F.2d Analysis, tive (5th Cir.1984) (“The at 91. laws of Texas vest attorneys county in district and the exclu applying separation powers In doc- responsibility sive and control of criminal trine, Supreme consistently Court has prosecutions types pro other and certain prevented removing from reh’g, ceedings.”), opinion withdrawn abridging or the constitutional duties of 289, denied, 1285, reh’g 769 F.2d 774 F.2d County, supra; Hill county attorneys. — denied, U.S.—, 3337, cert. 106 S.Ct. Terrel, 97, Maud v. 109 Tex. S.W. (1986). An obvious corol 92 L.Ed.2d 742 Staples Cf. 112 Tex. county attorney’s duty lary to a district or (1922) (same protection 245 S.W. 639 prosecute is the utilization criminal cases General). County, Hill Attorney Court, preparation his own discretion rejecting Legislature’s at- Therefore, under the tempt those cases for trial. to create a nonconstitutional office doctrine, powers Legisla Attorney replace of Criminal District prosecuting abridge district county criminal duties of a ture not remove or at- torney, prosecutorial county attorney’s stated: exclusive reaffirming trading abridging 11. In so con- doc- from trine, applied county attorneys, the Court ferred. noting stated: For cases Id. 89 S.W. at 1055. Moore, continuing vitality see v. Texas Hill Now, proposition, we do not controvert the Bd., (Tex.Civ.App. Quality Water 568 S.W.2d 738 Case, laid down in the Moore that if section n.r.e.); —Austin ref. State v. Walker- writ 21 of Article confer- 5 should be construed as (Tex. Co., Texas Investment 325 S.W.2d ring upon county attorneys district n.r.e., 1959), Civ.App. ref. Antonio writ represent the state in all exclusive —San (1959) (per cu- Attorney 160 Tex. S.W.2d 294 except cases those in which the Gen- act, riam); Angelo, expressly Upton City 42 Tex.Civ. San eral is Legislature authorized to then the writ). (Austin prohibited App. no from sub- 94 S.W. 436 would

255 curiam) (Legislature exceed- (per express App.1986) function, by an unless authorized guide- procedural to enact power limited ed provision. constitutional forfeiture); Young- for bail and bail lines case, dissenting instant In the limited exceeded blood, supra (Legislature argued Appeals of the Court member contempt power); Langever authority of given ex Legislature has been 1025, 1035- 80, Miller, Tex. 76 S.W.2d 124 prose- authority infringe press proce- to enact (1934)(legislative power 38 grant by its constitutional function cutorial support substan- guidelines could dural Meshell, supra, at 5 rule-making power. ability to enforce of court’s tive invasion Indeed, Legisla J., dissenting). (Thomas, Permitting such a prior judgment). valid procedural rules authority to establish tive Legis- give the by implication result would V, 25, of in Article provided of court § infringe upon the power to lature unlimited the Texas Constitution: depart- of the Judicial power substantive power to shall have Supreme establishing “rules guise of ment under procedure and establish rules make rendering separation of court,” thus laws with the not inconsistent meaningless.13 Cf. doctrine court government of said for (Allowing Legisla- Williams, supra, 47 at courts of this State and the other pretense judgment final under to alter ture therein, expedite dispatch of business bail would regulating procedures for added). negatively Although (emphasis judicial branch ... “the make worded, clearly intends that provision subject to the whim of the mockery, control over Legislature have ultimate Legislature.”). procedural rules of court. establishment of Act, the enacting Services, supra, at 563.12 Government pro- attempted provide Legislature has therefore, “complete Legislature, has statutory enforce- guidelines for cedural regulating pass any law right of a defendant's ment means, manner, and mode of assertion Ordunez, supra, at See speedy to a trial.14 rights in the court.” any of [a defendant’s] (Clinton, J., concurring). At first 916-17 State, 87, 58 S.W. Tex.Cr.R. Johnson satisfy the Act seem to blush this would 60, right proce- that a exist before requirement en- prerequisite Legislature’s guidelines A to the could be enacted dural 25, V, However, is not right. how the Act power to act under Article force guidelines ever, procedural right providing existence of a for which is the directed trial. provide procedural speedy can for the commencement J., concurring). In- (Clinton, otherwise, proce guidelines. See id. at 917 Were held, stead, consistently as this Court legislation would itself create sub dural prosecu- speeding the grant Act is directed at “right,” and exceed the stantive readiness V, 25, and ultimate supra, thereby preparation tor’s power in Article Santibanez, supra; Barfield; encroaching department. trial. upon another for State, (Tex.Cr. Ordunez, supra.15 707 S.W.2d 40 Williams right speedy trial to a explanation Amendment general the manner in The Sixth For a through the applicable to the states rule-making power was made is distributed to the Klopfer Car- v. North Amendment in Compa- Fourteenth olina, departments, various see Annotated and 18 L.Ed.2d 87 S.Ct. 386 U.S. Analysis, supra, at 471-72. rative right speedy (1967). Regardless, trial the same course, Legislature could establish a 13. Of clauses. provided state and federal under both general right plenary if new under (Tex.Cr.App. S.W.2d Hull v. infringe upon depart- another did not 1985); Turner v. separate power. ment's (Tex.Cr.App.1977). fact, to the caption amendment to an provides: all crimi- 15.In constitution "In 14. Our state following description: "An speedy provides the prosecutions shall have a nal trial_” the accused I, to be relating the state time limits federal Tex.Const. art. 10. The of- misdemeanor prosecu- ready in certain provides: "In all criminal constitution fenses_” Leg., p. ch. 3 tions, 66th enjoy Acts accused shall trial_" Const, Legisla- added). Clearly, (emphasis amend VI. ... U.S. acknowledge enforcing attempt delay, a defend- deliberate is We trial” right weighed heavily against speedy ant’s constitutional to a trial much more prosecutor in than a “more neutral reason under federal and state constitutions negligence such as or overcrowded courts.” may require some instances some intrusion Barker, 531, 407 U.S. at 92 S.Ct. at 2192 prosecutor’s prepare into the discretion to added). (emphasis See also United States example, for trial. For under both federal Carter, (5th 1204, 603 F.2d Cir. clauses, speedy delay by and state trial 1979). government obtaining a official in a defend- presence following ant’s his indictment Second, Act, under the no consideration delay could a cause commencement given request to a defendant’s failure to delay, if the the trial. That even result fact, speedy a trial. a defendant need negligence shortage, may or staff ulti- request speedy seeking a trial before mately prosecutor. be attributed to the 32A.02, 3, relief. See Art. Y.A.C.C.P. 2192; Barker, 407 U.S. at at S.Ct. Indeed, speedy requesting might a trial Carter, F.2d United States v. hurt a defendant’s chances for dismissal (5th Cir.1979). However, Speedy alerting prosecutor an unaware to an- Clauses, Act, Speedy Trial Trial unlike the ready. Speedy nounce Under the Trial effecting prosecutor’s even a discre- when Clauses, defendant’s assertion of his “[t]he trial, preparing tion in for are directed at speedy right strong trial ... is entitled to assuring speedy trial. commencement weight determining evidentiary whether Speedy speedy Trial Clauses assure being deprived the defendant by focusing Barker, 531-32, commencement of on at right.” trial 407 U.S. at directly least four factors related to com- S.Ct. at 2192-93. 1) length mencement trial: Third, probably critically, most trial, 2) delay before the reason for the require Act does a defendant to show 3) delay, defendant’s assertion 32A.02, prejudice. any supra. See Art. 4) speedy any prejudice Clauses, Under the Trial a defend- resulting delay

to a defendant from that prejudiced ant must show that he was Barker, Hull, supra; supra; trial. Turn- trial, impor- delay particular in his with er, supra. any impairment tance attached to of his Id., defense. at 2193. S.Ct. Beyond any contemplated by scenario Legislature, incorporate the Act fails to against If the Act were enforced thereby seriously these factors and en- County Attorney in the instant Freestone prosecutor’s croaches a exclusive case, deprived he of his exclusive would be function without the of an ex- prosecutorial preparing discretion tri- First, press provision.16 un- for the factors al without consideration der the distinctions are drawn few determining appellant used whether delay. prose- A based the reason for deprived of his constitutional appellant’s pres- cutor’s failure to First, obtain speedy no consideration is trial. weights equally heavy upon ence him County Attorney’s given to the Freestone delay negligence negli- when the delay. attributed Neither his own reason shortage or staff as when gence attributed nor the Harris Sheriff’s Santibanez, obtaining backlog mitigate any delay deliberate behavior. See su- can Second, pra. Clauses, irrele- appellant’s presence. Under the “a it is upon pros- objective. speakers ture understood that the Act focused at those required ecutorial readiness for trial rather than actual hearings presumed the Act commencement of trial. speedy rather than commencement of trial ready speedy for trial announcement of 16. We have no doubt that the Legislature’s mo- prosecutor. Hearings before Senate Subcom- conscientiously assuring tives were directed at Bill mittee on Criminal Matters on Senate However, defendants of trials. it is also 20, 1977; April Hearings before House Commit- during clear that there was some doubt even Jurisprudence Bill on House tee on Criminal legislative hearings as to the in which manner May accomplish Trial Act would be found else- paring case for trial can actually wanted a appellant vant whether where, sep- acknowledge appel- has violated the speedy trial. We pend- powers of the indictment aration of doctrine. lant was unaware County; in how- ing against him Freestone any are Because we not aware ever, testify to required he even was not granting provision expressly constitutional speedy requested a trial that he would have pros- control Legislature the to a indictment. he aware of the had trial, we must con- preparation ecutor’s for Third, is importantly, it probably most Legislature, by providing for clude that actually appellant suf- irrelevant whether case, a in the instant violated such delay any as a prejudice fered result doctrine, separation of Article required Appellant in his trial. Therefore, we supra. hold that any prejudice. show 1(1), 4(5) & Articles 28.061 & 32A.02 §§ failing to some defer By show 4(10), supra, are unconstitutional.18 Cf. focusing upon factors and ence to these Williams, supra; supra; Youngblood, trial, Legis prosecutor’s readiness for a supra. Langever, has created an Act that assures lature Instead, it has appellant speedy a trial. legislative enact of a portion A guaranteed appellant dismissal only a with unconstitutional, ment, does not if declared County prejudice upon the Attor Freestone necessarily render the entire act invalid. pres ney’s obtaining appellant’s delay deciding In the remainder of an whether however, guarantee, deprived ence. That viable, may act courts have con remain County Attorney the Freestone ex sidered several factors. prosecutorial prepar discretion in clusive a Invalidity part ... a [of ing any for constitu trial the absence destroy the does not entire enactment] tional authorization. act, part is so unless the valid intermin- legislatively forcing prosecutor’s While gled parts act so as to all with occasionally readiness for trial have them, impossible separate make salutary speeding an incidental effect of preclude presumption so as to trial, case to Trial Act does not passed legislature would have the act Instead, accomplish objective. even anyhow. accurately titled the Act more could constitu- ... The test not whether “Speedy Ready Announcement of Act.” provisions are tional unconstitutional Edwards, generally Campbell See & section, for the contained same Right An Overview Trial: purely artifi- into sections distribution the Texas Tex.B.J. cial, es- provisions but whether ready itself Once shown for inseparably connected sentially and trial, any does not place further substance, omitted] [footnotes proceed burden the State trial.17 Tex.Jur.3d, Law 42. Constitutional granting appellant In overly such an 32A.02, supra, clearly re power to control Freestone Article broad Coun- quires application provi its various ty Attorney’s pre- exclusive discretion variety fac trial, sions based endless paring Legislature for has exceed- provisions protect tual situations. Without authority appellant’s ed its sub- unconstitutional, just speedy through we have declared stantive 32A.02, supra, whole ren legislation. Article as a procedural legis- Unless broad use. In addi controlling incapable dered of reasonable lative Free- Attorney’s tion, pre- stone find it obvious that discretion we Consequently, we need not address 17. This fact led a member of this Court com- 18. separation of doc- prosecutions ment that "trials of criminal State’s claim that requires judi- only relatively the strictest trine was violated because the accelerated discussion, infra, provisions 265- compliance legislating. See with the cial [A]ct.” Ordunez, (Clinton, J., concurring). supra, at 919 32A.02, passed initially appellant’s The trial court held in would not have 1(1), including pretrial without the en- on his ultimately favor motion but 28.061, su- holding forcement mechanism Article denied relief after also the Act Therefore, Chapter pra. we hold that Appellant pled unconstitutional. then 28.061, 32A.02, entirety, in its and Article guilty understanding with the sole that he supra, are rendered void. appeal ruling could the trial court’s on the Therefore, constitutionality the Act.

V. appellant preserve we hold that failed to appellate review, review ground appellant his second under claim the federal or state argues against the indictment him trial clauses. We need not decide whether should have dismissed under either been speedy Appeals’ the Court of decision on the mer- the Act or the federal and state By holding portions its of that constitutional claim was trial clauses. of the correct. unconstitutional, disposed of we have rationale, Although reject we af-we Therefore, appellant’s statutory claim. we judgment firm Appeals of the Court of appellant’s now address constitutional 32A.02,supra, insofar as it held Article and claim. 28.061, supra, Article unconstitutional. Appeals, despite The Court of acknowl-

edging that it raised for the first time was CLINTON, Judge, dissenting. appeal, appellant’s on addressed claim that granted When this Court was constitu- right he was denied his constitutional jurisdiction, power and tional Meshell, speedy supra. trial. The Court discretionary exercise review of “a decision appellant support held that had failed to Appeals of a Court of in a criminal case as ground claim and of error. overruled law,” V, 5; provided by Article Articles § Id. 4.04(b), 44.01, 44.45(a), (b) (c), and V.A.C. plea guilty C.P., A promptly promulgated defendant’s we rules of contendere, results in assess nolo post appellate procedure in crimi- trial and punishment range ment of within the rec govern of the nal cases the work Court prosecutor, by ommended does not guide practitioners seeking much as complain pretrial waive his rul today, majority Yet review.1 ings 44.02, V.A.C.C.P.; appeal. on Art. and determina- Court demonstrates a will (Tex.Cr. Morgan v. 688 S.W.2d 504 carefully tion to cast aside drawn rules for However, App.1985). may a defendant procedure to reach a orderly result grounds only appeal those either raised in a procedural circumstances have law pretrial appealed by per motion or written put beyond its reach. heretofore 44.08, mission of the trial court. Art. su posture must under- of this cause pra. appellant In the court invoked stood. trial (Act); case, appellant’s pre Speedy Trial Act the State In the instant the Texas responded grounds the Act only trial motion raised a claim under that on several agreed Appellant The trial court Act. did not raise before the is unconstitutional. court, appellant dis- by pretrial either motion or with that the case should be missed, otherwise, is un- any claim under the federal or but concluded that the Act appellant’s did the trial and denied mo- state trial clauses. Nor guilty, Appellant pleaded court rule on such a constitutional claim. tion to dismiss. 3, 302, Recognizing discretionary 1. See former effective review. there will rules course, have, September They "winning” party 1981. situations in which the nominal Appellate supplanted by Texas Rides of Proce by aggrieved some reason nevertheless be dure, 1, 1986, September are effective now appeals adverse for decision of the court 200, 201, 1(a), The rules contem Rules 202. provid party, we contentions made to it losing appeals plate party that a in the court days petition latter file a within ten ed the may petition for review and indicate "the char timely filing petition. first Rule after 202(c). be considered" acter of reasons that will Court in grant deny determining whether to utterly upon being supra,” fatuous appealed convicted notion § ground “Appellant’s Appeals. Waco that since review Court broadly,” phrased this Court has [sic] unpublished opinion In an granted review “of the entire decision of Appeals Court of found the Waco op. p. 248, Appeals.” Maj. Court unconstitutional on account of a defective n. 3. III, caption It then under Article wrote: By the State filed its brief. Thereafter “points reply,” grounds urged what it calls State

“The caption ruling by declaring supports first Act uncon- Trial merit, Appeals; secondly, Waco they are without assert- stitutional ing attorneys county that district and are overruled.” judicial depart- “within the realm of the losing party peti- Appellant As filed his V, ment” virtue of Article it con- discretionary present- tion for He review. passing Legisla- tends Act the review, questions pivotal ed three “impermissibly infringed upon ture being one here “Whether judicial contrary branch” Act ... unconstitutional.” rela- “deprives in that the Act ground, however, tion to that he stated as prosecutors judg- of their to exercise his reason for review the decision first that performing ment and discretion their the of Waco Court “is conflict with” a functions,” prosecutorial exclusive “in appeals, opinion cited another court of this case the mandated dismissal of this holding caption the Act that to the does pursuant cause to the is an unconsti- [Act] muster, meet thereby invok- infringement upon tutional the con- (c)(1) ing 302; reason of former rule his prosecutors in ferred to exercise their implicate three other reasons former rule judgment exclusive and discretion (4) 302(c)(2), (5), obviously and are third, Constitution;” is that Act based the fact that Waco Court held vague “so and unenforceable” that is must only particular did, invalid in support ‘judiciallegislat- survive on caption.2 viz: an unconstitutional Natural- fourth, ing’; judiciary that conditioned, ly in part, answer II, 1, in violated Article that undertak- question, question first his third is ing vague enforce “a and unenforcea- whether indictment should have been legislative ble” en- enactment courts “have dismissed because of failure of the State to croached on the and en- branch comply (or with the comply failure to gaged judicial legislating.” requirements). with constitutional PDR, Having bypassed file a its Although having also “lost” on its other 44.01, former V.A.C.C.P. and rule unconstitutional, claims that the Act is 304(c), argues “now that the State not file pursuant did its own PDR Appeals incorrectly Court of overruled its 304(e); former rule while entitled to under 1,” claim that the Act violates Article 304(h), former rule reply the State did not Maj. present op., p. properly will petition. to the Therefore, contrary question. review, only appellant With seeking this expressed by majority very view —“that granted Court his questions review of one Court,” Maj. op., p. issue is now before Notwithstanding apparent and three. according 252—it is not here to the rules recognition appellant actually presents that only It is here because a this Court. extremely arising questions narrow from be, in to declare majority wills it to order Appeals, decision the Waco Court of the Act unconstitutional. majority a of the that Court announces “we III, respectively, the ma- only have not restricted our Parts II and review Appeal’s application III, jority Court of of Article that concludes Waco question requirements. 2. His second he had whether given according trial to constitutional TEAGUE, Judge, correctly dissenting. did not Appeals held the State requirement of the Act comply with a majority opinion Because the erroneously course, (meaning, of the trial court that Chap- Trial see holds appellant’s denying motion to dis- erred Procedure, ter 32 of the Code of Criminal action), as and the claim miss State’s because it sep- unconstitutional violates the holding defective as the below that a well compelled aration of doctrine I am caption renders the Act unconstitutional dissenting opinion. to file this For reasons State, Baggett 722 “moot” under give, I I that will find that the Trial and Coronado (Tex.Cr.App.1987) thing. Act does no such (Tex.Cr.App.1987) 725 S.W.2d 253 course, (ordinarily meaning, appel- cause, agree the facts all Given of this gains prosecution). dismissal lant agree should the State failed to com- appellant winning, Thus far but ultimate- ply provisions with majority feels it ly he will lose because the Act, by failing prepared to be for trial “must further review decision [the date, required by certain the Act. Hon. Appeals].”3 Waco Court Reiter, judge, although P.K. us not torture for the sake Let the rules disagreeing appellant with that his motion expediency.4 things proper, was in to dismiss all cf. majority impatient To reach Part IV the (Tex.Cr. Turner 662 S.W.2d 357 to stretch me.5 will have and strain without (Held, provisions App.1984), to invoke the Quo vadis? of the Act order to assert that he is stated, For the reasons I dissent. entitled to a dismissal because the State granted question 3. To attribute such mandate to the fact that review of his third al- ground "Appellant’s phrased though complained review was the State has not [sic]' 3, is, well, issue, Maj. op., p. sponte broadly,” grant n. a mas- nor briefed in Part V sua (and terly disingenuousness. appellant bit of now informs Appeals) pre- Waco Court of that he "failed to opinion for His first reason review is that the appellate any serve for review Wright opinion below "is in conflict with the in speedy claim under the federal or state trial State, 288,” which, majority in the Maj. op., p. clauses.” 258. must, acknowledges truly as it Fort Worth the Appeals caption of held to Act is Court the my “separation position 5.Since is that the constitutionally defective. His second rea- II, powers” prop- issue under Article is not § justices "disagreed son is that of the Waco Court Court, erly agree before the I now join while upon decision;” question necessary a material to its of law of their I do not with much essence either only caption question that can be observe, however, dissenting opinion. I must justices agreed grounds urged for the by that “other by and that reason of other constitutional statu- declaring Speedy the State for Trial Act trial, tory pertaining speedy provisions to a i.e. unconstitutional without merit.” His third I, V.A.C.C.P., 1.05, 10 and Article Article “both Appeals is that the "has reason Waco Court of prosecution posi- and the are under a statute,” the court being declared unconstitutional a delay." duty prevent to unreasonable Wil- tive solely caption Act and on the issue. His last Bowman, (Tex.1964). son v. 381 S.W.2d reason is that the Waco Court decided "an im- Judge Legislature Miller cor- That the has what portant question of state law which had rectly "plenary” power enact such been, be, calls to laws Court], but should settled and [this necessary it finds to effectuate constitutional as rights caption indeed we have not decided the issue— elementary in and duties is that so doing now are forever so and barred from III, alia, repealed, people Article III, inter recently adopted amendment to Article "obsolete, being superfluous and unneces- § 35.” sary.” Leg. p. In is, H.J.R. No. 3230. those 61st majority as it would have it Incredible lights majority the conclusion reached actually appellant petitioned this Court to implications for survival of other has awesome requiring his dis- overturn conclusions of law touching legislative be enactments deemed to prosecution. charge from further attorneys represent duty prosecuting that, irony although majority The ultimate the Waco of this Court un- the State—when Appeals jurisdiction, "any provision ex- Court of exercised its own other constitutional aware granting Legislature pressly and decide ad- [to address Tomorrow, express appellant's versely pass of an claims that his constitutional for want them].” denied, arguably power, may any rights grant al- it other trial had been pro- though question provision Criminal Pro- his third review raises in the Code of offensive decision, priety although this Court of that cedure. sions of Sec. the defend- comply with failed to Act), up- in Constitution in that their efforts expressly refer to the but ant must vague piece hold a and unenforceable appellant that he had sus- agreeing with legislation, the courts have encroached proving his burden his motion tained and have en- any upon the branch dismiss, giving reasons for without but judicial legislating” conclusion, gaged were without merely stated for the record summarily merit and overruled them with- that “the Court is convinced the appeals The court of I de- out discussion. Trial Act is unconstitutional and so grounds urged “The clare”, motion held: and overruled the and there- declaring Speedy Trial guilty. appellant after found merit, are without unconstitutional majority opinion, the unpublished In an they are overruled.” Appeals Waco affirmed the Court pause point I out that Justice Thomas judgment of conviction. See Me court’s very compel- appeals court of filed a (Tex.App. No. 10- of the shell v. —Waco 17, 1985). persuasive dissenting opinion 84-168-CR, ling and pur After October State, supra, my chasing erroneous Meshell view the State’s contention (Tex. Crisp, opinion be the best to ever come out of parte 661 S.W.2d 956 Ex cause, Appeals this the Waco in a criminal Cr.App.1983), controlled appellate it appeals caption held that the case since criminal court of Act’s obtained publish- jurisdiction. certainly should rendered the unconstitutional because It Ill, it 35 of the ed so that all of the Bench violated Art. Texas Con members easy of this access Baggett stitution. 722 S.W.2d Bar State will have (Tex.Cr.App.1987), appellate this art. In any Court held that court work of III, event, copy because Article Sec. has now been reader should obtain amended, longer pow opinion, carefully courts “no read before [have] trying er an Act of the out of to declare make heads or tails what insufficiency puzzling opinion due to the states majority unconstitutional Thus, caption.” the constitutional holds I that what Justice because believe opinion amendment renders that issue and Thomas’ states will enable the read- moot the majority opinion correctly easily why see majority opinion does not dis er of the part wrong, wrong, cuss of the court appeals’ opinion is so opinion holding caption wrong, wrong, that concerns the oh so dead Trial Act. Act is unconstitutional separa- it doctrine of because violates the appeals The court of also found that the powers. tion of why State’s other reasons it asserted that unconstitutional, State,1 arguments why namely, Act was “be- under its it Legislature cause the in its enact- claims that the Act is unconstitutional be- separation powers Trial of impermissi- ment of the cause it violates doctrine, bly infringed pow- arguments summarily or encroached which were by ers judicial govern- appeals, branch of our overruled court of asserts II, deprives “legislative of enactment ment contravention Article Sec. Constitution”; judg- prosecutors of it of to exercise the Texas “because their performing vague so unenforceable must ment and their and that it discretion Further, prosecutorial support ‘judicial live it can find exclusive functions. on the from legislating’ judiciary impermissibly and “because the this Statute dictates what powers separation provi- of the State must show to demonstrate violated correct, Although Judge technically wheelspinning.” the State Clinton is The issue now, resolved, presents that the here and that the State’s contention must be worse, course, if because it or for Of Act is unconstitutional violates the better worse. majority aggressive powers of separation properly of different and assertive doctrine of us, expressly dissenting opinion future to before see the filed this Court be free in the he has will cause, adopt today’s aggressive assertive this cause what he overrule what would, believe, "judicial majority I holds. advocates amount to states and 32A.02, government does not mean that those de- See Article

‘readiness for trial.’ implicitly partments government cooper- of shall not also supra.” The State Sec. carrying usurped func- ate to the common end of into argues the Act that because Constitution; purposes it constitutionally allocat- effect the that had tions State, simply depart- means that the acts of each (by the solely judiciary, ed by shall never be controlled or sub- only equal ment prosecution is now jected, directly indirectly, to the coercive Department of this member of the Judicial depart- influence of either of the other spokesperson is the for that de- ments, subject to government, post, how- and that each shall be partment of see depart- ever), powers of checks balances it violated the argues that be- ments. doctrine. The State next vague unintelligible the Act is so cause John) Justice Marshall once re- Chief necessary for this Court it has become marked: “The difference between the de- legislating”, engage “judicial a form is, partments undoubtedly legisla- they “filling as in the holes [of Act] executes, makes, the executive and the ture exposed”, it is unconstitutional. have been Wayman judiciary construes the laws.” noted, Appeals Court of sum- As Waco 1, 46, Southard, 10 Wheat 6 L.Ed. arguments, marily all of these overruled (1825). Thus, separa- “the doctrine holding simply: grounds “The other rather judicial means that func- tion urged by declaring the State performed by judiciary, tions shall be Speedy Trial Act unconstitutional are with- nonjudicial shall be and that no tasks merit, they

out are overruled.” only the judiciary; forced major I that one of the errors believe establishing legislature shall make laws that it re- majority opinion is the fact policy [State]; for the and that the execu- appreciation flects a total lack enforce the laws and shall not be tive shall understanding democratically endowed of a unduly in that task ei- interfered with sup- government, which we are form of legislature judiciary.” An- ther the or the posed to in the State of Texas. to subscribe Law, tieau, 2 Modem Constitutional 11.13, page opinion I find that the is a also pros- step away holding from mere expressly divid- Our State Government ecuting pres- attorneys of this government. departments three ed into 1,085, ently at least see Baker v. number Art. of the Texas Constitu- Section (5th Cir.1985), Wade, 769 F.2d 289 also see tion, expressly provides: “The (5th Cir.1984), Wade, 743 F.2d 236 Baker government of the State of Texas shall subject any procedural can never be departments, into three distinct be divided promulgated by laws sepa- confided to a each of which shall be this State. body magistracy, to wit: Those rate one; Legislative to those which which are Though much has been written on another; and those which powers, are Executive it is nec- doctrine another; person, or still, and no more it is are Judicial essary to write because persons, being one of these majority opin- collection of obviously evidenced any power ion, departments, doctrines in shall exercise one of the least understood others, properly attached to either of our law. expressly except in instances herein separation of object The of the doctrine permitted.” vital, namely, and to powers of “is basic V, “The part: in commingling essentially provides Art. Section preclude a of these be vested judicial power State shall government in the of this different Court, Ap- in U.S., Supreme in Courts O’Donoghue v. 289 one same hands.” Appeals, in 740, 743, peals, L.Ed. 1356 in a Court of Criminal 53 S.Ct. 77 U.S. Courts, Courts, in Com- County in (1933). Supreme pointed also District The Court Courts, in of Justices inde- missioners Courts O’Donoghue, that this out Peace, courts as in such such other respective and pendence of the branches

263 right to protect appellant’s substantive a provided by The offices law ...” legisla- through procedural Attorney Attorney trial County speedy District designated as of the Judi- are not members tion.” government, although cial Branch of our conclusions, reaching the above placement by of their within virtue implicates Supreme opinion majority

judicial branch section of Constitution v. Wingo, decision of Barker 407 part of our they are of the Judicial Branch 514, 92 33 L.Ed.2d 101 U.S. S.Ct. government. (1972), set therein and the four factors out Attorney and of District The offices right to concern the accused a which “repre Attorney County were created by guaranteed Sixth speedy trial as in all in the District the State cases sent Amendment to Federal Constitution. respective coun inferior courts their are, however, exemplary These factors county attorney or at The district ties.” exhaustive, majority as rather than represent the State of torney’s opinion implies. is, instead, special, general is not but Texas majority opinion states: The “[U]nder legis being by limited Constitution doctrine, Leg- v. pertaining thereto. See Al lation State abridge a dis- islature not remove len, (1869); Tex. 273 69 v. Taff attorney’s prose- county trict or exclusive (1913). 528, 155 The Tex.Cr.R. S.W. function, by authorized an cutorial unless Texas, Attorney ex General who express provision.” This constitutional press a of the Execu declaration member appears statement to mean that unless the Government, Branch also the tive Speedy Trial Act can said to constitu- law officer of this State and the chief chief implement the tionally defendant’s consti- legal Attorneys adviser to District trial, right Legisla- speedy a tutional County Attorneys of this State. The rela Speedy Trial ture’s decision to enact the tionship Attorney between General and act, being an unlawful in violation Attorneys County Attorneys District powers. of the doctrine of State, however, always of this has not been happy opinions, one. As reflected Act, however, gov- Speedy Trial The another, they are often odds with one legis- statutory interpretation erned “fighting” in usually over one court history, Supreme while the Court’s lative represent would Wingo, supra, only v. analysis Barker given county cause or whether the office of applies a defendant of assertion attorney given attorney or district in a speedy trial Federal constitutional See, county should be abolished. for exam fact, right. many of state- Given this ple, Alaniz, Shepperd v. S.W.2d majority opinion, in the me at ments (Tex.Civ.App.-San 1957); Antonio Garcia least, strangely puzzling say the Tex. Laughlin, 155 S.W.2d 191 least. (1956); County Sheppard, Hill Tex. opinion completely has 178 S.W.2d Also see both the fact that the constitutional overlooked Wade, supra, of the Baker v. cases. right speedy trial is a substantive majority opinion concludes: “[The proce- only Trial Act is while the Speedy Trial deprived the Freestone Act] right. implements this dural device that Attorney prosecu- of his exclusive (Tex.Cr. State, 572 See Wade [judicial?] preparing torial discretion App.1978). trial absence of The constitutional The opinion also reasons authorization.” “one of quarters in most hailed gives accused “an over- preserved by rights the most ly power to Freestone broad control the [fundamental] It thus one our is County Attorney’s exclusive in Constitution.” discretion in the opinion “fundamental” liberties embodied preparing for trial”. The Rights process Bill clause which the due then reaches the further conclusion: “[T]he appli- authority Amendment makes Legislature has exceeded its to of the Fourteenth 264 hold, appears Klopfer exemplary, North ion are rather

cable to the States. v. Car- 213, 988, olina, 386 87 S.Ct. 18 L.Ed. than exhaustive. U.S. (1967).

2d 1 requirements The Trial right speedy totally from The constitutional to a trial Act distinct the Federal right guaranteed right and State constitutional of the ac- is a the accused and right speedy accused to a cused to demand a Also see the State. The trial. Cohen, speedy probably chap- Right from “Senate Bill 1043and the to a trial derived (ch. Texas,” Carta, if in Magna ter of the 1215 40 7 29 American Jour- used). (March, 1979). King John’s of 1215 is See nal Criminal Law 23 Charter Coke, The Part the Institutes Second majority opinion wrong, The is therefore (Brooke, ed., 5th England the Laws wrong, just wrong, holding dead 1979). Also see the Azzize Clarendon incorporate “the Act fails to these factors (1166); 2 English Historical Documents thereby seriously upon encroaches a (1953). Both the Federal and State prosecutor’s exclusive function without the right recognize the to a constitutions express authority an constitutional speedy trial. the Sixth Amendment to See (footnote deleted) provision,” (My empha- 1, 10, the Federal and Art. Constitution sis), i.e., because there is no constitutional Texas Constitution. provision giving of this right to declare when State statutory implementation, Without how- ready must be for trial it has no ever, right speedy the constitutional to a impose County the District and extremely right trial can hollow Attorneys duty prepare of this State a say the least. period. for trial within a certain time right speedy The constitutional thought supra, I Hooey, v. Smith actually safeguard prevent undue thinking. rejected type v. Smith oppressive incarceration of the accused Hooey, supra, Supreme con- Court was trial, prior anxiety to minimize and con defendant, fronted with a case in which the accusation, accompanying public cern Leavenworth, prisoner in made demand possibility long delay to limit will County after demand Harris authori- impair ability of an accused to defend bring him to Harris so ties to back Ewell, himself. See United States v. trial, might his that he stand but demands 116, 120, 773, 776, U.S. 15 L.Ed.2d S.Ct. went unheard—until the case reached (1966); supra; Klopfer, Smith v. Supreme Court of the United States. 374, 377-379, Hooey, 393 U.S. 89 S.Ct. held, Supreme granted relief. It in- 577-578, (1969); Dickey 21 L.Ed.2d 607 alia, petitioner ter that “if the Florida, 30, 37-38, U.S. S.Ct. present large for a six- case had been at (1970). sought, 26 L.Ed.2d 26 When our indictment, following year period diligent seeing usually courts have been repeatedly that he be had demanded that, reason, right promptly within trial, brought to the State would have been enforced, and no amount of circumvention try him duty under constitutional ... Supreme has been tolerated Court. during if And Texas concedes that supra; Hooey, Smith v. United States v. period he had confined a Texas been 307, 320, Marion, 404 U.S. 92 S.Ct. offense, prison its obli- for some other However, 30 L.Ed.2d 468 be gation no 89 S.Ct. would have been less.” Constitutions, wording cause at 576-77. right speedy to a constitutional trial is the fol- necessarily amorphous Supreme and relative. In de Court also stated violated, supra: ciding lowing Hooey, whether Smith “[W]e [Supreme] was mis- usually only identify some of the Texas court courts can think concepts of factors, Lovasco, allowing see taken in doctrinaire United States submerge the ‘power’ ‘authority’ to 97 S.Ct. 52 L.Ed.2d 752 U.S. (1977), practical demands of the Wingo, and Barker v. Indeed,

factors, the ratio- contrary majority opin trial. to what the

265 Act, require- 18 3161. The see U.S.C. Supreme Texas Court which the nale create plans and statutes wholly ments of these in the case was its denial based addi- to the accused—in statutory 390 benefits Page, in Barber last Term v. undercut rights 1318, existing constitutional 719, 20 L.Ed.2d tion U.S. S.Ct. state federal and various argument provided that (1968),” rejected the which Youngblood, “The Con- obli- See was under no constitutions. the State of Oklahoma Trial,” Right Speedy pris- to Case request presence of the stitutional gation to Comment, Effec- July-August, 1986. in a federal who was then located and oner 1, 1978, joined the ranks July v. Texas In tive prison outside Oklahoma. Smith Chapter provisions of “Upon it enacted the supra, concluded: when Hooey, the Court Procedure, the demand, Criminal constitu- 32 of the Code of petitioner’s Texas had a Trial now under consideration. diligent, good-faith Speedy Act duty make a tional bring him before Harris Coun- effort Although provides our Act for mandato- ty courts for trial.” sanctions, provisions for ry it has liberal extending if pertinent stated intervals based Supreme Given what legal extenuating circum- valid and Hooey, and held v. Smith already responded stances. Supreme Court has argu- rejected majority opinion’s Cohen, see Bill and the “Senate attorneys county ment that district Texas,” Right to a Trial 7 Amer- this State have unlimited constitutional Law, adequate- ican Journal Criminal “power”, “authority” and “discretion” gives history a and the for ly us reasons right a subject the accused’s say unnecessary It the Bill. is thus ignore a speedy trial. If the State subjects. about more than little those request brought criminal accused’s State, 586 Also see Barfield trial, and make a effort to must reasonable Clinton, Trial- (Tex.Cr.App.1979); “Speedy trial, presence for must secure and thus (Fall, Style,” Baylor Law Review oncoming trial, prepare for the or suffer Bean, 1981). Cf. 579 S.W.2d Ordunez consequences, stands to reason (Clinton, J., concur- (Tex.Cr.App.1979) Legislature imple- of this State instance, suffi- ring opinion). In this it is speedy ment the constitutional ato one possibly state the Bill was cient to through procedure requires the trial “crime” ever of the most uncontested bills ready to be for trial a certain State within it re- through the to waltz frame, exactly time that is what passing little than a comment ceived more Legislature of this did it enact- when passed. The Act or two before the ed the Trial Act that under is now single dis- passed in the without a Senate consideration.2 senting passed a substantial vote and Florida, supra; margin in the on the consent calen- Dickey

Also see House dar, change from supra; the Senate Wingo, Barker v. Beavers v. Hau with little years ago, Cohen bert, seven 198 U.S. 25 S.Ct. 49 L.Ed. version. Almost States, “[Tjhere every (1905); indication predicted: Pollard v. 352 U.S. United (1957); realize Speedy Trial should 1 L.Ed.2d 393 the Texas S.Ct. Ewell, achieving supra. speedy trial purpose its United States v. desires one and every defendant who response over to a trend concern And, do not” those who speedier trial, the constitutional Act has part, Speedy Trial for the most courts, many many federal and persons pros- both well served accused states, Texas, adopted including speedy tri- of this ecutors State. encourage prosecution plans al swift above, over 8 Congress Notwithstanding the after has man- criminal cases. Even aggressive and assertive years, time constraints dated also, today implicitly, to be held By majority opinion albeit the amendment to Speedy Trial H.B. has been see unconstitutional. Governor, September signed effective guilt Speedy judicial determining function of or of this Court now holds that Trial Act of Texas is unconstitutional —be- innocence.” The Texas Act also does not separation upon judiciary’s cause it violates the intrude substantial de- impossible for me to making process determining guilt doctrine. It almost cision innocence, believe that at least five members of this upon nor does it encroach Speedy Court hate the Trial Act so much Attorneys County Attorneys’ District willing their they would be to sacrifice prosecute persons accused of oaths of office to see that the Act is de- committing crime. clared unconstitutional on this basis. See appeals pointed The circuit court of out (Tex.Cr. Me Clain 687 S.W.2d 350 following: determining “In whether the dislike, App.1985), quar- “One or even Speedy disrupts Trial Act the constitutional expressed rel with the mandate courts, Congress balance between Speedy Act], must Trial but it [the proper inquiry ‘the focuses on the extent to long An followed so as it is the law. prevents [judiciary] which [the Act] pass cup appellate judge may not this from accomplishing constitutionality from as- I, lips. Tex. Const. He signed degree functions A... considerable ignore bring play cannot facts which into congressional judicial intervention in ad- personally approve, laws he does not constitutionally permissible ministration is disregard certain laws order to reach a ‘justified by if such intervention is an over- particular result in a desired case ...” riding objectives promote need to within (357) (Onion, P.J.). Also see Wilson v. congressional authority Congress (Tex.Cr.App.1981) 625 S.W.2d 331 J., (Clinton, Concurring Opinion): “The instance, In this office of Constitution of the State of Texas man- Attorney County, of Freestone which was entering upon dates that before the duties Constitution, placed in Article V of the Judge of office each of this Court ... must provision creating judi- Constitutional faithfully swear or affirm that he will exe- ciary, created, asking when it was one cute the duties of office and ‘will to the Branch, Court, of the Judicial this member ability preserve, protect, of his

best Speedy Act unconstitu- to declare the Trial defend the Constitution and laws’ of the tional because it violates the of Texas State ...” powers doctrine it encroaches because Brainer, United States v. F.2d a non-member of the Judicial Branch of our (4th Cir.1982), the Fourth Circuit Court going State on here? Government. What’s Appeals recently reversed a district holding Speedy court’s the Federal the district court Much like did in Brainer, Trial Act was invalid as “an unconstitution majority opinion rea- al Judiciary.” encroachment See sons that because the Sixth Amendment Brainer, United States v. F.Supp. protects of the accused to a (D.Md.1981); also see United States v. terms, speedy Legisla- trial in inexact Howard, (D.Md. F.Supp. 1109-13 powerless ture is to fix definite time limits 1977), grounds, aff’d on other 590 F.2d 564 prepared has to (4th denied, Cir.1979), cert. 440 U.S. should, very trial. This Court for the same (1979). S.Ct. 59 L.Ed.2d 795 In re appeals reasons used the circuit court of versing holding, the district court’s the cir Brainer, supra, reject fallacious such appeals pointed cuit court out that not specious reasoning. The circuit court withstanding general mandatory re appeals pointed out that notwith- also quirement that the case be dismissed standing the constitu- the inexact terms of time, period if not tried within a certain trial, merely speedy tional the act lays the Federal Trial Act down no rights against secures certain minimal trial decision,” prac only “rules of but rules of way “In by government. encroachment no procedure. tice and according prevent Congress from does protection The circuit court also held that the Fed- the accused more than Con- arrogate requires, precludé eral Trial Act “the nor does it Con- did stitution cause, senting he opinion filed in this acting public’s interest gress from on the statutes of found Wingo, analogy su- limitations justice. See Barker v. Act did not violate the majority opin- To pra.” hold as the powers. Quoting does, doctrine of cannot enact ion Court, decisions Jus- “necessary and from several legislation that deemed out pointed tice Sears that “enactments carrying to the constitutional proper” out limiting for the trial, holding prosecution the time right amounts to public policy only offenses are measures Legislature from enact- that the is barred entirely subject are of the procedural the will ing any criminal statute unless ...,” legislature correctly and then con- express permission granted is Consti- 28.061, true, cluded Articles 32A.02 and do If is then that for it to so. this tution V.A.A.C.P., appear to be than no more any prosecuting attorney of this State “ limiting any pros- criminal ‘enactments the time the free to thumb his nose at for offenses,’ and, such, prop- presently the ecution of are procedural statute that is on erly sphere within the author- books. ity.” impossible me to It is almost believe “tamper anyone, especially pre- Speedy at least The Trial Act does not

that five Court, “trample upon” sumptively learned of this with” or discretion members prosecuting audacity temerity attorney might have the or that a have. would fact, rights question the fact trial In Act does not that are the mandate subject Legislature. attorney If proper prosecuting anything. for the must do prepare he chooses not to for trial within However, I concede that there cer- are Act, the time limitations set out in the that Legis- tain limitations this is within his discretion. example, Legislature For lature. is not upon judicial good example Legislature free to intrude the zone of A of how the (prosecution?) might upon authority of a self-administration and inde- encroach degree prevent county pros- to such pendence attorney attorney as to district (the judiciary prosecution?) Legislature legisla- passed from ac- ecute if the complishing constitutionally assigned approve tion this Court that would what Brainer, supra, Benson, In functions. the circuit in Holmes v. 671 S.W. condemned appeals (Tex.Cr.App.1984), judge court of held that the Federal 2d 896 that a trial Speedy Trial not so enter dismiss- intrusive: “We with an order impact upon ing charges prejudice do not think that the Act’s with criminal prosecution?] fairly prosecuting attor- courts can de- without [the charges. Clearly, in such such ney scribed extreme terms.” I refile invalid, do not not would Speedy also believe that the Trial would be because such impact upon pow- prosecution judi- Act’s violate the doctrine [the ers, infringe upon ciary] can be in such such described extreme but would because terms, attorneys and majority opinion powers granted as the holds. district county attorneys by the Constitution. (Tex. In 703 S.W.2d775 Bedford Thus, excep- 1985), Sears, very App.-Houston Justice certain limited with [14th] tions, Court, in this opinion present authored for that none of which who cause, subject of pointed many rights proper out that are a we have statutes application undue provide legislation. The of an enacted type of is therefore prose- time limitations and sanctions on the test burden/substantial however, Act, See, comply. applicable. Speedy failure cution for for ex- Trial 51.14, 12.01-12.07, unnecessarily prosecu- ample, Arts. not burden the V.A.A.C.P. does with challenged substantially tion nor it interfere These statutes have never been does any prosecuting attorney prosecutor’s exercise of this State provisions ground they duty to on the violated the doc- act. any- require him to do powers. Trial

trine of Justice Act do Sears, nothing so chooses. thing. like did in do if he Justice Thomas the dis- He can few, few,

Although argued very can be the Act decisions of this Court it slightly prosecutor’s appellate in- touches intermediate courts of office, discipline granted ternal of his that is not the this that have a defendant issue; Legislature, fact, the issue is whether the they relief on this basis. are so Act, enacting has in- Trial by appellate few cases that are reversed prosecutor’s Court, truded or encroached including courts this i.e., territory, prose- domain or because State’s failure to meet the committing persons charged cute with requirements wrong. criminal It does not. speaks I find this well for the overwhelm- ing majority prosecuting attorneys thing majority opinion Another over- figures of this State. These me also tell penalize looks is that the Act does prosecuting attorney that for a lose on a action; penalizes prosecu- inaction defendant’s motion to dismiss for failure of tion. The Act constitutes a rational effort requirements the to the State meet the by Legislature the to enforce the accused’s closely Speedy Trial Act such resembles an right speedy to a trial and attorney losing an uncontested divorce expresses public policy a that criminal done, awfully can is case. It but it hard period. cases be tried within a certain time an in this Act, lose uncontested divorce case This like similar statutes that have Union, this State at time. The same is true of a been enacted in other States of the see, Pachay, v. prosecuting attorney Speedy State example, 64 Ohio who loses a (Sup.Ct. 416 N.E.2d the St.2d Trial Act motion filed accused. 1980), simply attempt by Legisla- is the only thing In summary, that the ture this State to cause the criminal Speedy require Trial Act does is to system justice of this State to be “shaken prosecution, periods, within certain time Prepared the scruff of its neck.” State- unreasonable, which no one claims are General, Attorney ment of the Assistant instrument, procure charging first secure Justice, Rehnquist, H. now Chief William accused, presence familiarize Hearings reported 1971 Senate A. himself with the law and evidence of the I Legislative History Title of Partridge, case, steps to and take reasonable ensure Speedy Trial Act the attendance of his witnesses. Isn’t this Speedy Trial Act is not self-execu- prosecuting vast what the ting. provide It does not for an automatic State, attorneys probably of this since simply dismissal of a cause because a de- 1836, always doing? have pursuant fendant a motion to files dismiss Tex.Jur.3rd, following In 12 is Act, the Act. in order Under written: act will not be declared un- “[A]n dismissal, the defendant is obtain first ground constitutional on the it is establish, can, required to if he that he has harsh, unjust, produc- or that it will or provisions properly invoked the of the Act. hardship. tive of Nor will action hurdle, If he overcomes this and establish- may appear it to be be annulled because case, prosecution prima es a facie then the unwise, inexpedient, impractical, unwork- establish, can, called if it that it able, impolitic. The wisdom and reason- ready was then for trial and had been legislation solely ableness of a matter period ready for trial within the time as set legislature.” run, Act. If the time has forth Speedy public policy Trial Act is a prosecution many, can fall back on the Legislature act of the of this State that many exceptions safety-valves delays solely upon prosecutorial focuses legal provided If valid Act. and judicial neglect, rather than and given prosecution, reasons are as to State, process as a whole. period why ready not within the time Barfield supra. Among many purposes is to Act, its designated by the it will be rare prevent of the defend- the State’s abuse appellate court that will reverse a defend- right ant’s constitutional trial ant’s on the basis that the State conviction the defendant his constitu- comply failed to with the as witness afford Again, adjudication Trial Act. prompt tional him, County charge against require he de- Trial did Attor criminal should County anything, advantage ney sire of this do to take of Freestone given him. exactly this record that is what he preparing I did far as for trial. find as time, this has held that Time after Attorney County has not estab prosecutorial the Act addresses itself to “standing” that he has to make the lished delay, judicial process as rather than to the cause, claim he does in this and this whole, question and because hold, compare so see Court should La prosecutor’s preparedness does not encom- State, (Wyo.1987); P.2d combe v. docket, pass its the Act the trial court or (Wyo.1985), P.2d Gooden not, except extremely limited does in an being as should annoint that office sense, judiciary of implicate the “real” this an equal with the other members of the 717 S.W. State. See Santibanez Department of this Judicial State. (Tex.Cr.App.1986). 2d 326 dissenting opinion I my conclude with Branch of our Govern- The Judicial thought. this real Is the reason that the judge ment not authorize the did aggressive majority of and assertive this spokesperson to act I cause Court holds as it does is because the Act is nothing find record us before where prosecuting attorneys too of this harsh our Judicial Branch of State Govern- underlying If that reason for State? Attorney ment has authorized the decision to declare the Trial Act spokes- County of Freestone to its act as unconstitutional, suggest I that each mem- person yet in this cause. I to have find aggressive majori- ber of the and assertive Attorney County how the of Freestone ty team read and memorize what Chief County “standing” has to that assert Stayton Supreme Justice of the Court of Speedy Trial Act is unconstitutional be- years ago in Texas stated almost 100 Turn- cause it violates the doctrine of Cross, er v. 83 Tex. 18 S.W. powers, on the basis that the in- (Tex.Sup.Ct.1892): fringes upon or encroaches the functions of duty It a court to administer the Judicial Branch of our State Govern- is law; written, as it is and not to make ment. law however harsh a seem statute Speedy infringe Did the Trial Act or en be, to or seem to be its whatever upon County Attorney croach of Free omission, cannot, courts such consid- on prosecute stone’s discretion to this defend erations, by oper- construction sustain County Attorney ant? Before the of Free ation, apply or make it cases to to which claim, stone can make such a it is assuming apply, it without func- does necessary that he he first that has show pertain solely tions that “standing” to a make such claim. As all government. department of the that did this instance was to require ready prosecu- him to The trial within a Life is full of hard choices. period, Speedy certain time how he Trial demon tors of this under the get right prepared strated manner which his constitu have the tionally right prosecute period ordained is ad within a certain time or have the versely Speedy right right How has affected? Tri to exercise their constitutional adversely pros impacted right nothing. compare Papa- al Act do See and Jacksonville, prosecute How has his 405 U.S. City ecute? christou v. adversely by operation affected 92 S.Ct. 31 L.Ed.2d instance, certainly Trial Act? In this The Act is not un- infringes or en- County Attorney never it demonstrated to constitutional because court, Appeals, rights prosecut- the trial Waco Court croaches these any ing attorneys In this this Court that of this State have. might instance, prosecute anyone, County Attorney that he of Freestone have defendant, infringed right, get by County, much less this was his chose V, 21 of the Texas Constitution the time the Act prepared for trial within § part: provides a hard choice and required. He made choice. represent should be bound County Attorneys shall The the State in all cases the District unconstitu- The Trial Act is not respective in their coun- inferior courts infringes encroaches tional because it ties; .... To the prosecutor’s functions. by finding majority initially errs contrary holding, I re- The majority opinion’s county attorney, the office of the spectfully dissent. prosecutor, is implication other State pro- judicial power subject to vested with MILLER, Judge, dissenting. under the tection dignify is difficult to the events of It V, 1, that clause. It is clear from Art. temptation today reply. with written is vested in judicial power of this State “honor” the five who great not to so named in the constitution- only those courts by which to finally have found a vehicle does not include the provision, al negate come to be the law most what has county attorney. majority’s conclusion prosecutors of this State. abhorred V, 21, supra, judicial that Art. confers note, if a watershed such as this merits But attorney county defies the presents that it for no other reason than provi- specific wording of the constitutional “phi- graphic public demonstration sion. concept of decision-mak- losophy over law” Moreover, implication sup- such an would indulged today who ing the five unacceptable port equally conclu- integrity such havoc on the wreak instance, preced- sentence sions. For display appellate system. This judicial V, quoted portion of Art. ing the above graphic given they have more even vacancy supra, states: “In case years sought for several such vehicle county Commissioners now, they do. Be and this is the best could appoint County have the shall may, that as ... election.” Under Attorney until the next II, Article of the Texas Constitution § reasoning, this sentence majority’s the provides: power the “judicial” confer Com- would powers of the The of the Government separation of subject to missioners Court divided into three of Texas shall be State powers protection. It is doubtful shall departments, each of which distinct result. framers intended such a magis- separate body of confided to a be V, Also, Art. cases that deal with the Legisla- tracy, to Those which are wit: by the supra, concern encroachment § one, are Executive to tive to those which representa- other attorney general or some another, which are Judicial to and those tive, authority of the upon the exclusive another; person, or collection of and no represent the State. county attorney to depart- persons, being of one of these (Ver- V, 21 Art. generally Tex.Const. See § ments, properly any power shall exercise 1955), These 7 and 8. non at casenotes others, except in of the attached to either issues refer- address the cases do not permitted. expressly the instances herein II, powers, ence to Art. § by refer- any disputes resolve but rather V, 1 of the Texas Constitution Article § in specific power enumerated ring to some provides part: in the Constitution. shall be judicial power of this State The Court, Moore, instance, in 57 Tex. Supreme in one Courts in vested For State (cited majority, at (1882) in Criminal Appeals, a Court of Civil Courts, 254), brought an ac- County Attorney in Appeals, in District General Attorney Courts, Courts, against in the Travis in tion Commissioners state Peace, (Moore) compel pay him to into the to Courts Justices de- from a money he collected may provided by treasury courts as be such other his sureties. faulting collector and tax law. separa- departments because of the Con- other that under the State Moore contended prosecute to Art. he was entitled clause contained stitution tion representative of control such cases as 1 of the Texas Constitution. § State, county was entitled to and that the support proposition, this two In order to money The Court retain the collected. cited, which, first of cases are Texas em- Attorney General was found that Moore, supra, the Constitu- held when prosecute powered to initiate and suits upon specific deposi- power tion confers a any county of to the money due depositary is assumed to have tary, that county or was no the State where there authority to exercise that the exclusive attorney. found also district Court course, express state- power, unless of an county delegate did to the that the law contrary is The second ment to the shown. authority represent attorney the Brooks, case, Brady Tex. cases, IV, 22 of State in all since (1905), was similar to the Moore S.W. Attor- permitted Constitution holding. ney “perform such other duties General required may as law.” The Court be Brady, supra, held that stated: gave although Art. presumed

“It that the constitu- authority represent must be county attorney the tion, selecting depositaries of a county attorney was not em- given ex- power, unless it is otherwise powered to so in all Since Art. do cases. pressed, depositary intended that IV, express- 22 of the Texas Constitution power, should exercise an exclusive with legislature could ly stated that the autho- legislature which the could not interfere “perform Attorney rize the General to such by appointing some other officer law,” required duties as power.” exercise express provision legis- such an enabled Thus, Attorney the trial court could not divest the lature to allow the General to attorney repre- county cases. represent the State some spe- sent the State because the Constitution cases, finds majority From these him, cifically delegated county attorney repre- perceived separation because of some infringed upon sent the not be powers problem. words, judi- In other provision express absent ciary powerless as substitute Thus, power of the to that effect. this Attorney county attorney General for the protection county attorney is entitled to was, Attorney though General clause. under the part judiciary of the same “branch” refers to several other (according majority) of government support propo county By cases which confirm attorney. express as the word- ing power 142 Tex. judicial Sheppard, the of the is vest- Hill v. State sition: courts, (1944)(the Legislature specifically ed in not in enumerated 261 S.W.2d Thus, county attorneys. the county specifical attor- may not certain duties withdraw neys separation pow- are not entitled to department, nor ly imposed upon one _may ers protection. Be that as it them, de abridge nor interfere with that them unless partment’s exercise Having county determined that the attor- provides); Maud Ter the Constitution so ney separation powers pro- entitled to is (1918)(the rell, 109 Tex. S.W. tection, and in order to find a county lodges with attor the Constitution issue, powers majority the next finds neys duty representing the State the power by county attorney subject the held cases); State, 112 Tex. Staples all by abrogation This some branch. (1922) (the may 245 S.W. 639 accomplished by initially considering is the power district and restrict the of the V, 21, portion quoted above of Art. § State); represent the county attorneys to majority The that the Constitution. finds Pipe Line Liberty actually Agey American “duty represent” stated is (Tex.Civ. by Co., “power” protected infringement from 141 Tex. S.W.2d prepare aff’d, protected discretion to 1942), equally 141 Tex. App.Austin (1943) (the bring cases. authority to to en in the courts and maintain actions Last, simply power specified is because by rights is vested the of the State force Constitution, subject in the and is therefore exclusively Attorney in the the Constitution (either pow- protection as an enumerated county attor the General and district Moore, supra, separa- under the er as in or legislature is neys, and the without clause) imply powers does not tion of delegate power to divest power to that is also accorded incident others). it to pre- protection. The discretion to the same county pare is not essential notes that the duties cases majority then attorney’s authority plead a case be- attorneys represent- relative to county Thus, it in a court of law. ing are not half of State the State enumerated pri- subject to the same county attorneys’ should not be deemed Constitution. The function, however, prosecute scrutiny is to from interference accorded to mary pleas ability county attorney appear in criminal matters. majority represent then states that: interests. court to the State’s corollary to a district or obvious “[a]n expanded power No case has ever attorney’s duty prosecute crim- county V, county attorney under Art. of his own inal cases is the utilization than that supra, to include function other preparation of those discretion represent authority to he have the Therefore, sep- under the cases for trial. reasons, of the above State. For all doctrine, Legisla- powers aration formulate a majority opinion fails to abridge a district ture not remove protection from interference subject to prosecutorial func- attorney’s exclusive pow- an articulable legislature. Absent tion, express authorized unless er, powers enumerated doctrine of provision.” Moore, and the Maj. op. at 254. 1, supra, of Art. are irrelevant. clause Be that as ... majority’s posi- reasons the For several represent, and that the tion finding county attorney’s After that the infringement by from protection attendant power to prepare discretion to for trial is a equated legislature, may be with the separa- protection under the be accorded prepare unacceptable. discretion to cases clause, majority next tion of First, explicit the Constitution is clear and Act effects an finds power is to in its statement of what on that discre- impermissible encroachment county attorney: conferred First, reference is prepare tion to for trial. represent. power to There no statement V, 25, Texas Con- made to Article cases, concerning preparation of or discre- stitution, Legislature to allows the cases. preparation tion in the of those means, and mode of a regulate the manner Thus, majority’s characterization is not rights in court. assertion of defendant’s specific language of the supported Next, that before the majority states Constitution. ap- preceding section the Constitution Second, plicable, must a defendant’s cited there the cases pro- Legislature may provide support its contention. Those cases for which do not Third, majority de- Attorney guidelines. of the cedural all concerned Speedy Trial although the county attorney or district or to be termines that General Legislature to (to others) attempt by Act is an attorney the exclusion of all regarding a procedural regulations in various kinds of enact representing the State trial, speedy pow- right to a of other defendant’s cases. There is no discussion objective actually accomplish this ers, represent prosecute fails to only of that to a in which Thus, merely directs the time those since it cases on behalf of the State. trial, for and attorney may prepare support concept county that the cases do not for test for the four-factor represent includes the fails to account protected power to right cy regarding speedy a of a state’s law trial. a defendant’s federal to a whether (as Rather, opinion clearly is set forth intended to be speedy trial been broached 514, 92 in a manner in Wingo, in Barker v. 407 U.S. S.Ct. used flexible situations (1972)). The such a statute does not exist. L.Ed.2d Based where Supreme findings, majority concludes that United States Court states: these impermissible perpetrates the Act en- “Finally, perhaps importantly, most county croachment vague is right speedy to trial a more attorney. rights. It concept procedural than other is, example impossible to determine change, first majority’s For a at least the precision right with when the has been legisla- observations are correct: the two denied.” regulate permitted procedur- is ture with means, Id., opinion, mode 2187. Later in the al enactments the manner and S.Ct. at rights in the of a defendant’s assertion of Court continues: court, necessary authorization “Perhaps speedy right trial because the right I is the existence of some to assert. rigid is so are slippery, approaches two cannot, however, accept majority’s re- eliminating urged upon ways as us maining conclusion. contentions and uncertainty some of the which courts experience protecting right. The The Trial Act does more than suggestion first is that we hold that the merely prosecutor’s preparation speed the requires a criminal constitution defend- actually it and ultimate readiness for trial: specified ant a a to be offered trial within provide the a serves to defendant with ruling a period. time result such speedy means which to obtain trial. clarifying would have the virtue of when 32A.01,V.A.C.C.P., titled Pri infringed right simplifying is and of orities, judge give mandates the trial application Recognizing of it. courts’ priority criminal over trials civil trials. this, legislatures some have enacted thereby This Article one of the addresses laws, adopted pro- courts have some speedy barriers to the two obtainment of narrowly cedural rules which more de- priority trial —that of the order or in the right. ... 32A.02, trial court’s docket. Article fine V.A.C. require this But such a result would C.P., Limitations, requires titled Time legislative engage Court to rulemak- ready prosecutor for trial with ing activity, adjudica- rather than in the limit, thereby in a time removes certain to which we should confine process tive the other barrier the obtainment of course,' States, our efforts. ... The speedy of the readiness of the trial —that peri- prescribe a reasonable go prosecutor to trial. This observation free with constitutional stan- od consistent clearly supported by com dards, must be less approach but our hearings mittee referred to in footnote precise.” Thus, majority opinion. a defendant opportunity is accorded an to obtain a Id., [Emphasis 92 S.Ct. at 2188. added.] through speedy procedural trial mecha Barker, considering When the issues giving precedence nism of to criminal cases Supreme supra, the United States requiring ready for the State to be trial validity of some was not faced with time limits established within set right enacting procedural rule the federal Speedy Trial Act. trial, posi- speedy but was rather the ben- without majority’s position that since the tion construe legislation. Clearly, specific four-prong to include the test Bark- efit fails gives er, opinion support no procedural to effectuate a Barker fails enactment means, any procedural manner mode contention that enactment incorporate right must assertion of a of the defendant’s guide the nothing test set out the four-factor untenable. There also it considered Supreme Court when opinion which indicates that Barker guidance. Actual- gauge adequa- without to be used to factors are ly, opinion against surely militates such a run as as if no there were indict- Thus, holding. Speedy whether the Trial ment filed in court. adequately addresses the four factors prosecutor Since the maintains discretion in opinion wholly set out the Barker is determining, large in part, to a when the to the irrelevant determination the via- toll, prosecutor actual time limits are to bility of the Act vis-a-vis the deprived pro- of discretion under the

powers clause. The discussion sim- Barker prosecutor visions of the Act. The can ply place analysis. has no in this Be that ready either cause the Act to run and be may.... as it Act, within the time limits of the or cause it chain, majority’s The final link in the running by releasing to cease the restraint prosecutor’s which finds that the discretion indictment, incarceration, etc.) (by on the prepare unduly for trial is restricted prosecutor defendant. If deprived Speedy unacceptable. Trial Act is also “power” preparing this of discretion in run Trial does not unless trial, only judge it is when a will not re- prosecutor either causes or allows it to jail lease a defendant from without bond at run, only long and then it runs as as the prosecutor’s request, as set forth prosecutor causes or allows it to run. may_ above. Be that as it commences, pur- A criminal action Contrary majority’s findings, to the poses when: proper Trial Act is a exercise of the Legislature’s power regulate means, indictment, information, 1. an or com- manner and mode of assertion of a defend plaint against the defendant is filed Initially, ant’s trial. court, in unless judiciary only executive have those prior filing to the the defendant is powers granted to them the Constitu in custody detained or released on powers; legis such tion or inherent to personal bail or bond to answer for however, powers, plenary, lim lature’s any the same offense or other of- only ited restrictions stated or neces arising fense out of the same trans- stemming sarily from the Constitution. action, in which case the criminal ac- See Government Insurance Un Services tion commences when the defendant Jones, (Tex. derwriters v. is arrested. 1963)and In re House Bill No. 537 32A.02, supra. Thirty-eighth Legislature, 113 Tex. . regard to the first With event stated (1923). Thus, starting 256 S.W. 573 above, prosecutor is in control: he or point any discussion of present she chooses when to a case to the legislature those must be that the indictment, grand jury to seek an or when presumed to have the to enact a complaint. to file the information or With necessarily express statute absent an above, regard to the second event stated implied prohibition. prosecutor rarely per- decides when a Moreover, legislature is free to exer- arrest, son is to arrested. After fit; it sees cise its manner prior filing of an indictment or infor- judgment does not sit in mation, however, prosecutor, As was stated wisdom of its actions. representative of the has considera- 158 Tex.Cr.R. Ferrantello ble control over whether a defendant will (1952): 256 S.W.2d 587 jail be released from without restriction as remember, “It is wise for the courts to opposed custody to “detained or released passing upon any question concern- when subject only on bond”. This control is Legislature, that ing power of the approval judiciary, of the local a fellow illustration, might, they to cite a fanciful judicial govern- member of the branch abolish the offense majority’s theory. meet tomorrow and ment under the Of act would be of murder and that such jail course if he is released from without question before the having post Act ceases to bond then the constitutional.

275 complained-of usurpation permissible. power Legislature of courts is the the acts.” right and not the wisdom its Certainly the defendant has a speedy trial under the Texas Constitution. Thus, long Speedy- at 591. as as the Id. Also, before, Speedy stated the Trial Act through a Trial Act was effectuated valid Legislature, speedy whether it ac- a power provide of the does the defendant with speedy trial the cords a defendant a is, therefore, a trial. There clear nexus If way most efficient is irrelevant. sought right to be enacted and between Legislature power to enact the has right.1 enactment of that Since there is a simply may not be- then we overturn Constitution, right by the guaranteed or more thor- cause there be a better right to since the Act effectuates that some ough way guarantee a trial. extent, has not acted be- legislature’s power to en- Given that the power. yond scope of its plenary; given may act that we laws perhaps important, if Last and most we any particular upon focus the wisdom of Act Speedy declare the Trial unconstitu- act; given legislature the pow- tional under in the means, regulate er to manner and mode presented majority opinion, in the manner rights a in a defendant’s assertion legislature regulating what act of the V, 25 court under Art. of the Texas Con- prosecution is ever safe from our attack? stitution; ground of answering the State’s trespass legis- Do we ourselves into usurps power the Act of the error that sphere by holding, and a lative so effect prosecutor-qua-member judiciary simple. legislature’s power pass violation Do we not tres- repeal or laws? ourselves (either Initially: specific power un- What pass sphere by executive so hold- into the power or der an enumeration of ing, and effect a violation of the executive’s power theory) legislature be would legislation? power approve or to veto usurping anyway? accused of The Consti- county speaks in terms of the attor- tution alas, is there to tell this But who ney “representing way In no the State.” transgressed, or cor- when we so have prosecutor’s with the does the interfere egregious non-federal mis- rect our most plea power to of the State re- behalf govern- our takes? Under structure Thus, garding criminal matters. there is ment, aspect It ulti- no one. is this prosecutor’s no direct assault by the pronounces today’s action mately Act. power incurred Trial totally reprehensible. majority so Moreover, deprive a since the does not legisla- powers, “The accumulation all bring prosecutor of his or her discretion tive, judiciary, in the same executive and case, merely a states when the time few, hands, one, many, a whether begin against limits will to run self-appointed, hereditary, and whether there is no an inciden- encroachment elective, may pronounced the justly be prosecutor protected by tal tyranny.” very definition of the Constitution. 47,” Madison, “Federalist No. Assuming James that there at- is some Federalist, county attorney, supra p. tached to the office of right may regulated, have apply the State must seems to the federal “ra- 1. The enacting legis- relationship” sufficiency compelling judge a lation, State interest test to tional i.e., he able to withstand the statute must applies That test when Act. Attorney scrutiny See Gen- the courts. regulate strict conferred a state seeks to Soto-Lopez, U.S. eral New York considered fun- United States Constitution not (1986); instance, 90 L.Ed.2d 899 Martinez S.Ct. In such an damental in nature. 75 L.Ed. Bynum, U.S. S.Ct. only rela- statute enacted need bear rational Blumstein, (1983); U.S. 2d 330, and Dunn v. Compare legitimate purpose. tionship to state (1972) 31 L.Ed.2d 92 S.Ct. applicable seeks test when a state different constitutionally protected case regulate before the statute involved Since fundamental, enacting right, a State State law then the statute the Court is a considered to preceding apply. tests means which the neither must be least intrusive simply Trial Act certainly justification does not no or cause to find upon any “power” encroach prosecu- of the the Act is unconstitutional as a viola- impermissible tor to an extent. There is tion separations of the powers of clause.2 2. State, argument 644, In by (1933) another advanced citing States, the at Muskrat v. United alleged 346, the 250, Trial Act is to violate the 219 U.S. 31 S.Ct. 55 L.Ed.2d 246 separation powers judi- (1911). of clause between the "judicial This Court has power” defined ciary legislature. and the facts, This power contention is to embrace the power to hear the unacceptable finding also an basis for the Act by to decide the plead- issues of fact raised the unconstitutional. ings, power the questions to decide the of law involved, power origin judgment the The to enter a separation of the doctrine of of the law, powers may upon facts found power based the writings be traced and the to the of Montes- judgment quieu. to State, Montesquieu’s (Col- execute the or Spirit Kelley See sentence. Laws of Ed., 151). 107, p. (Tex.Cr.App.1984) 676 S.W.2d 104 lier’s The United at States Constitu- and cases cited government tion also therein. orga- establishes a federal branches, powers Included judiciary in the of specific nized into three the but lacks a is the power branch, expression legislative consider the acts separation pow- of the of the doctrine of of contrary and if ers. found to be See The to the Constitution the State Texas: Con- of of stitution, I, declare Comparative power An those acts Analysis, Annotated and invalid. This Vol. anticipated (Austin: was George at Legislative ed. least as far back Braden as Alexander Texas Council, 1977), p. Hamilton when he asserted that: 94. The 1836 Constitution of Republic legislature’s “Limitations the ... the expression [on of Texas authori- worded its ty] preserved practice simply: powers way can be government “The no of this other shall through than departments, legisla- be the medium of the divided into three courts of viz: tive, executive, justice, duty whose judicial, it must and be to declare all which shall remain I, contrary (Art. 1). acts separate forever and manifest tenor of distinct.” Sec. this, provision Constitution void. Without This Constitution, all the reser- included in the 1845 Texas particular rights privileges vations of but was moved and [in altered to its present wording, express nothing.” would exceptions Constitution] and amount to were Hamilton, 78, Alexander "Federalist added. No. The Judges Constitution,” prohibition against The Guardians of the department one The en- Federalist, not, Benjamin (Cam- croaching upon however, Wright ed. powers Fletcher of another is Press, bridge: University applied Belknap Harvard absolutely. theory "The of Press, 1961),p. always democracy, separation powers government 491. As in a absolute of of along power longer respon- with comes accepted among no commensurate political canon State, sibility. In Lastro v. scientists and is 3 Tex.Cr.R. 363 inconsistent with the most re- 372-373, (1878), at the Court separation cent stated: formulations of the doctrine of question powers.” power “There is no of the of of the CJ.S. Constitutional Law (1955). Moreover, pronounce courts to unconstitutional acts in- should be ”[i]t noted that the valid, power powers government duty for this actually results from the are not divided laws, give neatly theory courts to effect to powers so as the of which short, imply. highest, would Constitution is the sepa- ... In which could doctrine of seriously not be ration of should be administered at all if nullified taken but at the by Legislature. rigidly." not enforced will or too "Citizen’s acts of the Guide to But Constitution”, Prepared equally power Texas well-settled that for the Texas is not to be cases, Advisory Intergovernmental just Commission on exercised in Re- but a doubtful defer- Studies, legislative enjoins lations department Institute for Urban Univ- ence Houston, 1972, ersity p. will, upon duty respect the courts the its dealing separa- A review clearly of Texas cases with unless the act is inconsistent with the law, judiciary tion of between the and the which all members of the fundamental First, legislature two-step analysis. departments (em- reveals a obey." several are sworn to specific power department phasis supplied). of each is deter- mined; second, power power legislature pow- the manner in which that includes the make, laws, bright repeal is exercised is examined. There is no er to alter and when such power line rule which be used expressly impliedly to determine is not forbidden department's power whether one permissibly provisions exercise of im- of the State Constitution. Baker, 121, depart- encroaches another Walker v. 145 Tex. 196 S.W.2d 324 power “exercising legislature ment's so that the former is This Court has held that the power” of the latter under prescribe punishments. [a] Art. define crimes and Constitution, however, Blackwell, supra. may, We State ex rel. Smith v. 500 S.W.2d 97 guided by propriety gleaned (Tex.Cr.App.1973). a sense from We further have power held that discussing subject. legislature regulate cases has the Initially, "judicial power” power rights is the of a assertion of individual in the courts. In pronounce judgment court to decide and Johnson v. 42 Tex.Cr.R. 58 S.W. carry persons (1900), parties it into effect between the Court stated: bring controverted, successfully who a case before it for decision. Mor- "It has never been Corbin, denied, late, really seriously row v. 122 Tex. 62 S.W.2d 641 and never until judicial render such exercise the spe- judgment. did not ample Since the Constitution legislature of state has not delegate permit legislature regu- cifically pass any complete law means, manner, authority, contempt lating judgment of asser- and mode court; excessively rights appellant's encroached tion of had committee powers manner, means, rendering long judgment judiciary so as this and mode adequate for the assertion either statu- contempt. rights, just long tory so or constitutional again this Court had occasion to provided law and remedies statutes examine the Texas powers. doctrine constitutional.” In Ferrantello v. 158 Tex.Cr.R. legislature to reform also ”[t]he (1952), 256 S.W.2d 587 a defendant was system speed process of trial the court to the 5429a, 3, V.A.C.S., convicted under § Art. for adjudication_” Impact the Tex- “The of failing respond questions propounded to to to Legislature,” Institute of on the as Constitution by legislative investigative a him committee. Studies, (1973), University p. Houston Urban of The facts of the case were as follow. legislative A investigating committee was specific powers After the involved are identi- gambling subpoenaed violations in Texas and fied, we must the exercise of determine whether testify the defendant to at a time when an in- powers by department those permissible one creates an im- alleging gambling dictment violations had been powers encroachment on the an- against filed County. him in Dallas Pursuant to department. Applying analysis other this to sev- 5429a, authority the supra, of Art. the commit- discussing separation eral Texas cases guaranteed tee had the defendant transactional guidance deciding provides substantial for immunity covering any gambling imper- information whether the Trial Act effects an Despite he grant immunity, relate. the by Legislature upon missible encroachment the testify. by the defendant judiciary. refused to As directed the statute, Youngblood, parte Tex.Cr.R. testify In Ex the his refusal to was certified to adjudged (1923), the defendant was Attorney, S.W. 509 the District and the defendant was by investigatory contempt commit- guilty of convicted ain Travis District court. On Representatives. At that of the House of appeal, tee time, the defendant contended that once the 5517, V.A.C.S., provided Acts Art. acquired jurisdiction Dallas district court over investigation legislative committee could indictment, through any him the effort on the any imprisoned for or witness his fine have part Legislature grant immunity the to him obey directions the failure or refusal to the would constitute violation of the questions pertinent and answer all committee propounded. powers set forth in the Texas Constitution. contended that The defendant the defendant’s This Court conceded II, Texas violated Art. Sec. of the this statute appealed of a proposition to the “natural desire legislature exercising since was Constitution the guard judge prerogatives the branch to powers.

judicial great- government," "we assert no but added can Legislature had an This Court noted the grants Fer- power us.” than the Constitution er authority punish persons express grant of to rantello, supra, The Court 256 S.W. at 591. III., contempt in 15 of the under Art. held ground of error since overruled the defendant’s Constitution, House which states “Each Texas 5429a, supra, did not affect the constitution- Art. by imprisonment, during may punish, sions, its ses- court, jurisdiction but would of the district al member, disrespect- person any for merely provided the defendant a defense have disorderly presence, or for conduct in its ful any subsequent found trial. The statute was at proceedings; provided, obstructing any of its and the defendant’s conviction time, not, any imprisonment shall one such affirmed. was authority ju- forty-eight exceed hours." Such exactly pause point to out that me Let authority, The exercise of that dicial however, nature. manner, nothing Speedy Trial Act does same II, subject to Sec. 1. This Art. with a defense provide defendant more than per- punish to [the stated: "The ... Court prohibition scope of the prosecution. The to by the Constitution would limited son] exactly as the prosecution the same against its exercise and in the manner of extent and immunity grant. In scope of transactional parte by Ex a committee.” not be exerted could scheme, fact, enacting Speedy Trial Act supra, Youngblood, at 512. Since the 251 S.W. Legislature the Fer- not have followed could Leg- permit specifically did not Constitution cases, closely. both more In rantello case delegate contempt punishment to islature decree, must, judge by legislative dismiss authorizing judgment authority, the statute exists, finding defense indictment contempt to be committee was held made prosecution is barred in both cases further was ordered defendant unconstitutional arising question for the case in discharged. analysis two-step preceding out of the transaction. Applying the Ferrantello, application Returning explains reached case the result this analysis anticipates two-step the result. judicial power involved was the Court. The case, judicial power was the contempt; involved judgment render a juris- authority criminal and retain “expressly provided” to exercise legislative power anwas legislative power Ill, a defendant. The diction over exception in Art. 15 of the for investigate crimi- legislature permitted involved was Constitution which mandatory continuance and held that the immunity grant transactional nal matters witnesses, 2168a, V.A.C.S., provided nature of Art. prosecution precluding for the thus continuances, legislative rendered the stat- brought Encroachment was not matters forth. ute unconstitutional under Art. dismissing Legislature was not itself found: the Texas Constitution. The defendants went to the rather, juris- prosecution; retained the court Supreme seeking an order of mandamus defendant, who had a defense diction over the directing judge grant the continuance. prosecution. further two-step analysis in this case involved the may postulate We portion that had the of Art. judiciary’s power to exercise discretion in dis- 5429a, regarding Sec. immunity transactional posing of Legislature’s motions before it and the allowed the itself to dismiss the de- power to have its members in attendance to indictment, fendant’s an encroachment pass Supreme laws. The Court noted that it is very well have been found. This is because often difficult to particular determine whether a while it proper legislature is most often for the judicial nature, function is ing: stat- which, up to set conditions if found occurred, judiciary to have par- will mandate a result, judgment particular determining ticular sepa- with a "In or not the exercise whether legisla- government ration of is offended when the of a one branch of is an judgment. ture itself seeks to enter juris- unauthorized invasion of the realm or offending place branch, same legis- action takes when a of another we must consider diction modify, impair, lature seeks to vacate or governmental reverse relationship of the various existing judgment. an 16 CJ.S. Constitutional departments as set forth and defined in the seq. Law § et Constitution, permit- for that which is Supreme The Texas Court has also had occa- by cannot be unconstitu- ted the Constitution sion to separation examine the doctrine of of power authority a tional. The of state powers. Miller, Langever In 124 Tex. legislature plenary and its extent is limited (1934), S.W.2d judg- Miller had obtained a only by express implied the or restrictions against Langever, ment property but when the arising necessarily in or thereon contained sold, proceeds was the of the sale were insuffi- (emphasis supplied). the Constitution." from satisfy cient to the entire debt. Under the law this Id. at The Court further noted that entered, judgment at the time the was deficiency judgment Miller judiciary: the statute did in fact encroach had a valid and unsatisfied mandatory by legislative “A continuance en- judgment the rest of the debt. After the was undoubtedly actment will interfere somewhat entered, Legislature passed the a law which ef- operations judicial department with the of the fectively deficiency judgments by canceled all government.” of depriving jurisdiction the courts of to enforce largely previous Id. at 564-5. Based on cases apply them. The new law was to to all deficien- constitutional, however, which held the statute cy judgments, including judgments previously Supreme mandatory the Court held that the Among challenges, rendered. Miller con- not, balance, continuance was an undue bur- appeal tended on that the new law violated Art. judiciary den on the separation and did not violate the II of the Texas Constitution. powers provision of of the Texas Supreme Court examined the doctrine of Constitution. separation powers of Legisla- and held that the important emphasize It is to here that authority ture was pass without to a statute Services, supra, Legislature Government the re- previously which would render a valid court quired judiciary way to rule a certain on a stated, unenforceable. The Court ‘‘We decree upon finding prece- motion certain conditions have plainer not found in the books a violation (such Following majority’s reasoning dent. provision of this constitutional than that shown is) bar, expect as it in the case at one would us,” in the act before id. 76 S.W. at then to be held a classic violation of declared the new law unconstitutional. powers. by Not all encroachments one branch Langever, supra, judicial power attend- another, government into the affairs of how- rendering enforcing judgments ant to valid ever, amounts to a violation of along Legislature’s was considered power with the powers. always The truth is that it is and has legis- to create laws. The clearest case of quite legislature normal for the to mandate judicial power lative encroachment on particular ruling judge a once certain a Legislature found: the had exceeded its authori- finds conditions are met. ty by passing deprived a law which the courts of mind, With these cases in Trial Act jurisdiction prior judgments. to enforce valid regard separa- now be Although addressed with was authorized to de- First, henceforth, powers judiciary. tion of vis-a-vis the we clare what the law would be it had powers nullify previous must determine which are involved. judi- no acts of the Thus, judicial power "power ciary. infringed means the of the a such law pronounce judgment court to decide and judiciary granted by the Texas carry persons parties it into effect between Constitution. In Government Services bring Ins. Underwriters v. who a case before it for a decision." Mor- Jones, (Tex.1963), row, 368 S.W.2d supra. Senator Spears Next, sought Franklin legisla- power continuance we determine what pending V, in a case in district court in Travis ture is involved. Article the Texas County. The trial gives Supreme power court overruled the motion Court the Constitution government, majority’s our own our other branches To the failure to follow give and easelaw and due def- frightful precedent, Constitution I setting of such erence and consideration to back as the Code of statutes at least far 602 of that of 1856. Article procedure not inconsistent Criminal Procedure to make rules Thus, although provided: State. Code with the laws of the any rule-making power appears relinquishes in the record in full "Whenever it statute the legislature. action, Court, power Supreme still with the the ultimate lies criminal upon appeal taken Co., defendant, Ins. that the in- Few v. Charter Oak Fire verbal, (Tex.1971); (ex- given jury Servic- 463 es, Government to the were structions given by supra at extends crimi- a case of a cept misdemeanor) 563. This so consent in when legislature Judge is em- nal well. Thus the courts as or that the District re- powered garding requirements to make laws the Constitution departed from Articles, procedures in Texas judgment used eight preceding shall be TexJur.3d, reversed, Law appears See 12 Constitutional provided courts. from the record anyone seriously dispute p. 581. Nor will excepted that the defendant the order legislature to make statutes (em- Court at the time trial.” action phasis supplied) effectuating defining, describing, expressing or rights guaranteed Constitu- citizens statutes, forbade the courts from Such which I, (including Consti- tion Art. of the Texas reversing charge objec- cases for error unless speedy public tution: "the accused shall have required tion in the trial court but was raised instance, Johnson, trial”). supra. Art. 38.- For raised, objection if an was so courts to reverse 22, V.A.C.C.P., equal scope provi- unques- judicial ruling mandated a tionably and were against present in the sions self-incrimination they But were outcome determinative. Texas Constitution. upheld by against always the courts whatever Additionally, the Consti- what is stated in they “transgress high powers challenge important as what is is sometimes as tution stated. Appeals.” of State, of Criminal Johnson the Court nothing Constitu- in the Texas There (Tex.Cr.App. 58 S.W. 69 42 Tex.Cr.R. legislature pass- prohibits from tion ing 1900). Judge in John- As stated Henderson procedures regarding criminal laws son, commenting supra on the histo- at when trial. Further- defendant’s more, provision: ry the code nothing there in the Constitution which statute, con- was affirmative and was “This an jurisdiction once the courts have mandates that by mandatory, requiring as courts strued the defendant, legislature may pass not over any the excepted to the if the error was the reversal time, the course of the courts’ laws which direct It was further whether material or not. Thus, way. the Constitution does actions held, very properly, was not a that this by prohibit passage indirectly implication or _” court; power the limitation on rights procedural or substantive statutes. Johnson, as identical If action the because, again important as stated the This is complains the the it is to action Supreme Court: Texas powers separation of doc- today, trine, the violated legisla- power state “The surely halted the would have courts only plenary its extent is limited ture by ago. practice long implied express thereon restrictions Moreover, previously with reference to other necessarily arising contained in from cases, Act does not discussed itself.” Constitution jurisdiction courts as set forth affect Services, supra, at 563. Government supra. Langever, Cf. Constitution. the Texas identified, are we Once relevant discharging de- Legislature is not itself specific exer- now determine whether fendant, usurpation just might effect a pass legislature’s power statutes cise of its Cf. Ex power determine cases. the courts’ Trial Act encroach- enactment supra. Youngblood, is it unconstitu- parte Nor judiciary power upon the to decide es in a requires courts to act because it tional particular carry pronounce judgments into and to them way circumstances. under certain effect. Services, and John- Ferrantello See Government stated, previously that the statute As son, supra. necessarily im- outcome determinative does ply analy- gleaned propriety The sense of impermissible The stat- an encroachment. discussing separation of cases sis of Ferrantello, allowing ute involved in the Texas powers compels conclusion that grant transactional immuni- itself to unconsti- cannot considered Trial Act presently ty even if he were to a defendant impermissible encroachment tutional transaction, certainly being tried judi- Leglisature the ciary. judge would outcome determinative since power to decide have the The courts if the defendant have had to dismiss case pronounce judgments, but cases and immunity; grant of transactional raised pass Legislature's subject however, was found. no encroachment affecting procedures and defendants’ has, passing legislature statutes rights, Additionally, judicial de- dictating once ju- outcomes affecting rights, dictated defendants’ statutes rulings through cisions made. outcome determinative dicial dissent with an overwhelming sense of for-

eboding. JJ.,

TEAGUE and join. DUNCAN

David Allen CASTILLO aka David Castillo, Appellant,

Montana Texas, Appellee.

The STATE of

No. 69340. Appeals Texas,

Court of Criminal

En Banc.

Sept.

Case Details

Case Name: Meshell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 1, 1987

Citation: 739 S.W.2d 246

Docket Number: 1339-85

Court Abbreviation: Tex. Crim. App.