*2 HUDSON, Before EDELMAN and ELLIS*, JJ. OPINION
CORRECTED MAJORITY EDELMAN, Justice. appeals Carl Norton
Daniel application denial of his for writ court’s corpus ground on the habeas two to indict him within failed arrest. reverse. from the date his 9,1994, January On was arrested marijuana set. delivery and bond was January Appellant on bond on was released an indictment 18. On October marijuana delivery against appellant District in the 23rd was issued filed Court. for writ of habeas
Appellant petition filed corpus complaining of viola on October speedy trial and the tion of his present failure State’s against him in the term of court next to bail. See or admission commitment (Vernon art. 32.01 Crim.Proc.Ann. Tex.Code Appellant requested charges against him with court dismiss prejudice. id. art. 28.061. hearing On corpus appellant’s petition for writ habeas Dis- judge of the 239th was held before the Court, trict rather than the 23rd was filed. Court where on the application trial court denied the * assignment. George sitting by Ellis Justice T. that, pends court to the statute
ground although of the 23rd two terms passed, applies had term of under these facts. District Court controlling, 239th District Court was and a county in which there are two passed second term of that court had not *3 courts, judges of or more district the those from time of arrest time of indict- the to the motion, may, courts on their own transfer ment. from any proceeding criminal case or their error, appellant In his of sole claims dockets docket of one of those other to the denying that trial court in the erred his Alternatively, § district Id. 24.303. courts. application corpus by for -writ of fail- habeas exchange judges simply those benches prejudice to dismiss the with changing without the docket of the case. See because, 32.01 under articles and 28.061 fol- to effect id. While a formal order is needed arrest, lowing his he indicted was not before cases, no such transfer of order needed the end of the second term 23rd exchange for an of Davila v. benches. See District Court. State, (Tex.Crim.App.1983). 661 S.W.2d case The State contends that this Timeliness of Indictment Court, 239th District but transferred to the 32.01 reads as follows: Article argument admitted in oral that the record custody in Defendant and no indictment any appeal before us on not reflect such presented addition, papers formal In transfer. all re- When a defendant has been detained in action, lating caption including custody appearance held to or bail for appeal, on the State’s brief indicate any to answer criminal accusation before before cause remained the 23rd District court, prosecution, the district unless Thus, Court. if even a transfer case court, otherwise ordered District could the 23rd Court have shown, affidavit, supported by cause shall changed applicable term court for discharged, and the bail if 32.01,1 purposes of article no basis to have presented not information be place in conclude that such transfer took against such defendant at the next term of this case. if the was trans- case the court which is held after his commit- indictment, ferred the rele- since ment or admission to bail. vant period time under article 32.01 is from provides discharge Article 28.061 that a un- indictment, arrest to the term of any der it or article 32.01 is a bar further during pending peri- which the ease was discharged for the offense and od, case, District in this 23rd Court arising other offense the same Accordingly, should control. because transaction. passed second term of the 23rd court before indicted, appellant the indictment County, In Brazoria for the 23rd purposes was not 32.01. of article begin Monday Court on the first April October, designated and and are Mootness
April-September and October-March terms. 24.124(b) (Vernon § Tex.Gov’t Code Ann. that a dis 1988). The terms for the 239th District charge prej with under article is to be Monday begin January on the first However, udice. the State claims that this July year. § of each Id. 24.302. relief should be denied because dismissal was sought this the State arrested was ob State, on but did not indict him tained. v. See Wilkinson Therefore, (Tex.App.—San until October from the Antonio indictment, n.w.h.); date of until v. Garay arrest the date of ref'd); (Tex.App.—Waco pet. had run second term for the 23rd District Tatum v. Court but not the 239th District Court.
Thus, Wilkinson, however, Except the timeliness of the indictment de- authority express opinion 1. We have found no this issue and on it. moot, proposition cited the State for this ders such a dismissal
cases differ Wilkinson preceded opinion article 1987 amendment extent.3 it applicable 28.061 which made to article Constitutionality
32.01.2
that even if the
State contends
Prior
that amendment
article
moot,
issue
the trial court was still
preju-
to dismissal there was
corpus
denying
correct
habeas
relief be
Instead,
dice for a violation of article 32.01.
cause articles 28.061 and 32.01 are unconstit
charges
was free to
after a
refile
support
argument,
utional.4
pursuant
dismissed a case
to arti-
reasoning
Meshell
cites the
event,
provid-
cle 32.01.
*4
(Tex.Crim.App.1987),
246
only temporary
a
a
ed
defendant
dismissal
held
32A.02
the
of Criminal
article
Code
context,
legal
charges.
that
ratio-
Within
the
(the
Act)
Speedy Trial
un
Procedure
Texas
Garay for Tatum
nale
and
have been
Meshell,
257;
constitutional.
739 S.W.2d at
that once the
to
an indictment
effort
obtain
see Tex.Code Crim.Proc.Ann.
32A.02
expended,
longer
no
to
it was
reasonable
(Vernon 1989).
Speedy
Texas
Because the
thereby require
ease
the
dismiss a
and
that
incorporate the
Trial Act failed to
factors
duplicated
refiling.
effort
to indict
after
be
Supreme
articulated
the United States
Garay, 683
See
at 22.
S.W.2d
in Barker5 to determine whether an
Court
However,
passage
right
accused
his constitutional
to
was denied
trial,6
speedy
Ap
1987
to article
such a
Criminal
amendment
Court of
applies
longer
peals
rationale no
since a case is
that article 32A.02 went be
reasoned
prejudice
effectuating
yond
protection
if
is
the indictment
constitutional
infringement
to
an impermissible
under article 32.01.
and became
prosecuting
disregard
hold otherwise
to
discretion of the
attor
would be
Therefore,
plain language
ney, thereby violating
separa
of those statutes.
Meshell,
filing
that
be
257.
powers.
we hold
of an indictment
tion
739 S.W.2d at
corpus hearing
longer
fore a habeas
ren-
The State contends that article 32.01 must
20,
R.S.,
1994,
1977,
ref'd).
Leg.,
May
App.
pet.
[1st Dist.]
2. See Act of
65th
ch.
— Houston
787, 4,
1970, 1972,
cases,
argued
s
1977 Tex.Gen.Laws
amend-
each of those
the State
22,
R.S.,
1987,
Leg.,
May
ed Act of
70th
ch.
S.W.2d 246
Meshell v.
739
383,
1885,
1987),
totally
ss
1987 Tex.Gen.Laws
1887
Appeals
the Court of Criminal
had
(effective
Sept.
or
for offenses committed on
invalidated article 28.061 when it declared arti
1, 1987).
cases,
The former version of article 28.061
cle
In both
32A.02 unconstitutional.
did not mention article 32.01:
rejected
argument
Appeals
First Court of
indictment,
only
a motion
set aside an
informa-
If
to
and held article 28.061
unconstitutional
tion,
complaint
provide
or
for
to
provision
failure
when used as an enforcement
to article
speedy
required by
32A.02,
trial as
Article 32A.02 is
but not article 32.01.
sustained,
discharge
the court shall
the defen-
contrast,
argues
By
discharge
A
article
a bar to
dant.
under this
is
unconstitutional,
as a
article 32.01
itself
and
any
dis-
further
offense
result,
that article 28.061 unconstitutional as
charged
any
arising
other offense
out of
it.
First
an enforcement mechanism for
The
the same transaction.
Appeals
Court of
did not address
constitu-
Although
3.
was decided after the 1987
Wilkinson
Nguyen.
tionality
See
of article 32.01 Nix or
effective,
amendment
28.061 became
it did
Nix,
2; Nguyen,
476
882
882 S.W.2d at
n.
S.W.2d
address
1987 amendment.
899
S.W.2d at 473 n. 2.
fact,
24,
August
at
21.
it was not until
any
appeals
a different
announced
514,
2182,
Wingo,
5.
407 U.S.
92 S.Ct.
Barker
under the 1987 amendments. See Ex Parte
result
(1972).
believe Article 32.01
Article the rationale of Me- 32A.02. Under
shell, validity of as a statu-
tory of a mechanism the enforcement suspect.
defendant’s
I in the result reached the ma concur
jority I there is only because believe another authorizing provision legis *6 Texas constitution lative enactment. The GLIVENS, Appellant, Lateef Salim person “no shall be held to offense, a criminal unless on answer for grand jury.” Tex.
indictment of a Const. Texas, Appellee. The STATE of I, § 10. “held” for ten Here 01-94-01095-CR, criminal offense with 01-94-01096-CR. months to answer Nos. jury.5 a grand Texas, Appeals of Article purpose I hold that would Dist.). (1st Houston guarantee but 32.01 is not to to enforce a defendant’s 18, 1996. Jan. grand jury. The by a statute to indictment prosecu- with the interferes to some extent discretion, its to secure an
tor’s but mandate expiration of the next indictment before Discretionary Reviews Refused arrest is not unrea- term after a defendant’s May provides that sonable. the statute frustrate if unusual circumstances the State’s
attempts to secure indictment within limits,
statutory extension time sup- showing cause
obtained reasons, I by affidavit. For these
ported improperly in-
believe Article
fringe upon prosecutor’s discretion. comply the State failed
Because 32.01, appellant of Article contends prosecution should be dismissed Ap required by Article 28.061.
prejudice as Robinson, subject parte person Ex A who is to the conditions of Crim.App. constructively liberty. bond is "restrained”