CLINTON, Judge, dissenting.

When this Court was granted constitutional jurisdiction, power and authority to exercise discretionary review of "a decision of a Court of Appeals in a criminal case as provided by law," Article V, § 5; Articles 4.04(b), 44.01, 44.45(a), (b) and (c), V.A.C.C.P., we promptly promulgated rules of post trial and appellate procedure in criminal cases to govern the work of the Court as much as to guide practitioners seeking review. Yet today, a majority of the Court demonstrates a will and determination to cast aside carefully drawn rules for orderly procedure to reach a result that law and procedural circumstances have heretofore put beyond its reach.

The posture of this cause must be understood. In the trial court appellant invoked the Texas Speedy Trial Act (Act); the State responded that on several grounds the Act is unconstitutional. The trial court agreed with appellant that the case should be dismissed, but concluded that the Act is unconstitutional and denied appellant's motion to dismiss. Appellant pleaded guilty, and upon being convicted appealed to the Waco Court of Appeals.

In an unpublished opinion a majority of the Waco Court of Appeals found the Act unconstitutional on account of a defective caption under Article III, § 35. It then wrote:

"The other grounds urged by the State for declaring the Speedy Trial Act unconstitutional are without merit, and they are overruled."

As losing party Appellant filed his petition for discretionary review. He presented three questions for review, the pivotal one here being "Whether the Texas Speedy Trial Act . . . is unconstitutional." In relation to that ground, however, he stated as his first reason for review that the decision of the Waco Court "is in conflict with" a cited opinion of another court of appeals, holding that the caption to the Act does meet constitutional muster, thereby invoking reason (c)(1) of former rule 302; his three other reasons implicate former rule 302(c)(2), (4) and (5), and are obviously based on the fact that the Waco Court held the Act invalid in the only particular it did, viz: an unconstitutional caption. Naturally conditioned, in part, upon the answer to his first question, his third question is whether the indictment should have been dismissed because of failure of the State to comply with the Act (or failure to comply with constitutional requirements).

Although having also "lost" on its other claims that the Act is unconstitutional, the State did not file its own PDR pursuant to former rule 304(c); while entitled to under former rule 304(h), the State did not reply to the petition.

With only appellant seeking review, this Court granted review of his questions one and three. Notwithstanding its apparent recognition that appellant actually presents extremely narrow questions arising from the decision of the Waco Court of Appeals, a majority of the Court announces that "we have not restricted our review only to the Court of Appeal's application of Article III, § 35, supra," on the utterly fatuous notion that since "Appellant's ground of review [sic] was phrased broadly," this Court has granted review "of the entire decision of the Court of Appeals." Maj. op. at p. 248, n. 3.

Thereafter the State filed its brief. By what it calls "points of reply," the State first supports the caption ruling by the Waco Court of Appeals; secondly, asserting that district and county attorneys are "within the realm of the judicial department" by virtue of Article V, § 21, it contends that in passing the Act the Legislature "impermissibly infringed upon the powers of the judicial branch" contrary to Article II, § 1, in that the Act "deprives prosecutors of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions," and "in this case the mandated dismissal of this cause pursuant to the [Act] is an unconstitutional infringement upon the powers conferred to prosecutors in exercise of their exclusive judgment and discretion by the Texas Constitution;" third, that the Act is "so vague and unenforceable" that is must survive on the support of 'judicial legislating'; and fourth, that the judiciary has violated Article II, § 1, in that by undertaking to enforce "a vague and unenforceable" legislative enactment courts "have encroached on the legislative branch and engaged in judicial legislating."

Having bypassed its right to file a PDR, Article 44.01, V.A.C.C.P. and former rule 304(c), that the State " now argues that the Court of Appeals incorrectly overruled its claim that the Act violates Article II, § 1," Maj. op., p. 252, will not properly present the question. Therefore, contrary to the view expressed by the majority — "that very issue is now before this Court," Maj. op., p. 252 — it is not here according to the rules of this Court. It is here only because a majority wills it to be, in order to declare the Act unconstitutional.

In Parts II and III, respectively, the majority concludes that the Waco Court of Appeals correctly held the State did not comply with a requirement of the Act (meaning, of course, that the trial court erred in denying appellant's motion to dismiss the action), and the State's claim as well as the holding below that a defective caption renders the Act unconstitutional is "moot" under Baggett v. State, 722 S.W.2d 700 (Tex.Cr.App. 1987) and Coronado v. State, 725 S.W.2d 253 (Tex.Cr.App. 1987) (ordinarily meaning, of course, that appellant gains a dismissal of the prosecution). Thus far appellant is winning, but ultimately he will lose because the majority feels it " must further review [the decision of the Waco Court of Appeals]."

Let us not torture the rules for the sake of expediency.

To reach Part IV the impatient majority will have to stretch and strain without me. Quo vadis?

For the reasons stated, I dissent.

TEAGUE, Judge, dissenting.

Because the majority opinion erroneously holds that the Speedy Trial Act, see Chapter 32 of the Code of Criminal Procedure, is unconstitutional because it violates the separation of powers doctrine I am compelled to file this dissenting opinion. For reasons that I will give, I find that the Speedy Trial Act does no such thing.

Given the facts of this cause, all agree or should agree that the State failed to comply with the provisions of the Speedy Trial Act, by failing to be prepared for trial by a certain date, as required by the Act. Hon. P.K. Reiter, the trial judge, although not disagreeing with appellant that his motion to dismiss was in all things proper, cf. Turner v. State, 662 S.W.2d 357 (Tex.Cr.App. 1984), (Held, to invoke the provisions of the Act in order to assert that he is entitled to a dismissal because the State failed to comply with the Act, the defendant must expressly refer to the Act), but agreeing with appellant that he had sustained his burden in proving his motion to dismiss, but without giving any reasons for his conclusion, merely stated for the record that "the Court is convinced the Speedy Trial Act is unconstitutional and I so declare", and overruled the motion and thereafter found appellant guilty.

In an unpublished majority opinion, the Waco Court of Appeals affirmed the trial court's judgment of conviction. See Meshell v. State, (Tex.App. — Waco No. 10-84-168-CR, October 17, 1985). After purchasing the State's erroneous contention that Ex parte Crisp, 661 S.W.2d 956 (Tex.Cr.App. 1983), controlled this cause, the court of appeals held that the Act's caption rendered the Act unconstitutional because it violated Art. III, § 35 of the Texas Constitution. In Baggett v. State, 722 S.W.2d 700 (Tex.Cr.App. 1987), this Court held that because Article III, § 35 has now been amended, courts "no longer [have] the power to declare an Act of the Legislature unconstitutional due to the insufficiency of the caption." Thus, the constitutional amendment renders that issue moot and the majority opinion correctly does not discuss that part of the court of appeals' opinion that concerns the caption to the Speedy Trial Act.

The court of appeals also found that the State's other reasons why it asserted that the Act was unconstitutional, namely, "because the Texas Legislature in its enactment of the Speedy Trial Act, impermissibly infringed or encroached upon the powers of the judicial branch of our government in contravention of Article II, Sec. 1, of the Texas Constitution"; "because it is so vague and unenforceable that it must live on the support it can find from 'judicial legislating' "; and "because the judiciary has violated the separation of powers provisions of Article II, Sec. 1, of the Texas Constitution in that in their efforts to uphold a vague and unenforceable piece of legislation, the courts have encroached upon the legislative branch and have engaged in judicial legislating" were without merit and summarily overruled them without any discussion. The court of appeals held: "The other grounds urged by the State for declaring the Speedy Trial Act unconstitutional are without merit, and they are overruled."

I pause to point out that Justice Thomas of the court of appeals filed a very compelling and persuasive dissenting opinion in Meshell v. State, supra, which in my view may be the best opinion to ever come out of the Waco Court of Appeals in a criminal case since it obtained criminal appellate jurisdiction. It should certainly be published so that all members of the Bench and Bar of this State will have easy access to this appellate court work of art. In any event, the reader should obtain a copy of the opinion, and carefully read it before trying to make heads or tails out of what the puzzling majority opinion states and holds because I believe that what Justice Thomas' opinion states will enable the reader of the majority opinion to easily see why the majority opinion is so wrong, wrong, wrong, oh so dead wrong, in holding that the Speedy Trial Act is unconstitutional because it violates the doctrine of separation of powers.

The State, under its arguments why it claims that the Act is unconstitutional because it violates the separation of powers doctrine, which arguments were summarily overruled by the court of appeals, asserts that the "legislative enactment deprives prosecutors of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions. Further, this Statute impermissibly dictates what the State must show to demonstrate its 'readiness for trial.' See Article 32A.02, Sec. 1, supra." The State also implicitly argues that because the Act usurped functions that had been constitutionally allocated solely to the judiciary, (by the State, the prosecution is now not only an equal member of the Judicial Department of this State, it is the spokesperson for that department of government, see post, however), it violated the separation of powers doctrine. The State next argues that because the Act is so vague and unintelligible it has become necessary for this Court to engage in a form of "judicial legislating", by "filling in the holes [of the Act] as they have been exposed", it is unconstitutional. As noted, the Waco Court of Appeals summarily overruled all of these arguments, holding rather simply: "The other grounds urged by the State for declaring the Speedy Trial Act unconstitutional are without merit, and they are overruled."

I believe that one of the major errors of the majority opinion is the fact that it reflects a total lack of appreciation and understanding of a democratically endowed form of government, which we are supposed to subscribe to in the State of Texas.

I also find that the majority opinion is a mere step away from holding that the prosecuting attorneys of this State, which presently number at least 1,085, see Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), also see Baker v. Wade, 743 F.2d 236 (5th Cir. 1984), can never be subject to any procedural laws promulgated by the Legislature of this State.

Though much has been written on the doctrine of separation of powers, it is necessary to write more because it is still, as obviously evidenced by the majority opinion, one of the least understood doctrines in our law.

The object of the doctrine of separation of powers "is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands." O'Donoghue v. U.S., 289 U.S. 516, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933). The Supreme Court also pointed out in O'Donoghue, supra, that this independence of the respective branches of government does not mean that those departments of government shall not cooperate to the common end of carrying into effect the purposes of the Constitution; it simply means that the acts of each department shall never be controlled by or subjected, directly or indirectly, to the coercive influence of either of the other departments, and that each shall be subject to checks and balances by the other departments.

Chief Justice John Marshall once remarked: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the laws." Wayman v. Southard, 10 Wheat 1, 46, 6 L.Ed. 253, 263 (1825). Thus, "the doctrine of separation of powers means that judicial functions shall be performed by the judiciary, and that no nonjudicial tasks shall be forced upon the judiciary; that only the legislature shall make laws establishing policy for the [State]; and that the executive shall enforce the laws and shall not be interfered with unduly in that task by either the legislature or the judiciary." Antieau, 2 Modern Constitutional Law, § 11.13, at page 202 (1969).

Our State Government is expressly divided into three departments of government. Art. II, Section 1, of the Texas Constitution, expressly provides: "The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."

Art. V, Section 1, provides in part: "The judicial power of this State shall be vested in one Supreme Court, in Courts of Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such such other courts as may be provided by law . . ." The offices of District Attorney or County Attorney are not designated as members of the Judicial Branch of our government, although by virtue of their placement within the judicial branch section of the Constitution they are part of the Judicial Branch of our government.

The offices of District Attorney and County Attorney were created to "represent the State in all cases in the District and inferior courts in their respective counties." The district attorney or county attorney's power to represent the State of Texas is not general but is, instead, special, being limited by the Constitution and legislation pertaining thereto. See State v. Allen, 32 Tex. 273 (1869); Taff v. State, 69 Tex.Crim. R., 155 S.W. 214 (1913). The Attorney General of Texas, who is by express declaration a member of the Executive Branch of Government, is also the chief law officer of this State and the chief legal adviser to the District Attorneys and County Attorneys of this State. The relationship between the Attorney General and District Attorneys and County Attorneys of this State, however, has not always been a happy one. As reflected by the opinions, they are often at odds with one another, usually "fighting" in court over which one would represent the State of Texas in a given cause or whether the office of county attorney or district attorney in a given county should be abolished. See, for example, Shepperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.App.-San Antonio 1957); Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191 (1956); Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261 (1944). Also see both of the Baker v. Wade, supra, cases.

The majority opinion concludes: "[The Speedy Trial Act] deprived the Freestone County Attorney of his exclusive prosecutorial [judicial?] discretion in preparing for trial in the absence of any constitutional authorization." The opinion also reasons that the Act gives to an accused "an overly broad power to control the Freestone County Attorney's exclusive discretion in preparing for trial". The majority opinion then reaches the further conclusion: "[T]he Legislature has exceeded its authority to protect appellant's substantive right to a speedy trial through procedural legislation."

In reaching the above conclusions, the majority opinion implicates the Supreme Court decision of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the four factors set out therein which concern the right of the accused to a speedy trial as guaranteed by the Sixth Amendment to the Federal Constitution. These factors are, however, exemplary rather than exhaustive, as the majority opinion implies.

The majority opinion states: "[U]nder the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision." This statement appears to mean that unless the Speedy Trial Act can be said to constitutionally implement the defendant's constitutional right to a speedy trial, the Legislature's decision to enact the Speedy Trial Act was an unlawful act, being in violation of the doctrine of separation of powers.

The Speedy Trial Act, however, is governed by statutory interpretation and legislative history, while the Supreme Court's analysis in Barker v. Wingo, supra, only applies to the assertion by a defendant of his Federal constitutional speedy trial right. Given this fact, many of the statements in the majority opinion, to me at least, are strangely puzzling to say the least.

The majority opinion has completely overlooked the fact that the constitutional right to a speedy trial is a substantive right while the Speedy Trial Act is only a procedural device that implements this right. See Wade v. State, 572 S.W.2d 533 (Tex.Cr.App. 1978).

The constitutional right to a speedy trial has been hailed in most quarters as "one of the most [fundamental] rights preserved by our Constitution." It is thus one of the "fundamental" liberties embodied in the Bill of Rights which the due process clause of the Fourteenth Amendment makes applicable to the States. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

The constitutional right to a speedy trial is a right guaranteed the accused and not the State. The right of the accused to a speedy trial is probably derived from chapter 29 of the 1215 Magna Carta, (ch. 40 if King John's Charter of 1215 is used). See Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1979). Also see the Azzize of Clarendon (1166); 2 English Historical Documents 408 (1953). Both the Federal and State constitutions recognize the right to a speedy trial. See the Sixth Amendment to the Federal Constitution and Art. 1, § 10, Texas Constitution.

Without statutory implementation, however, the constitutional right to a speedy trial can be an extremely hollow right to say the least.

The constitutional right to a speedy trial is actually a safeguard to prevent undue and oppressive incarceration of the accused prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibility that long delay will impair the ability of an accused to defend himself. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966); Klopfer, supra; Smith v. Hooey, 393 U.S. 374, 377-379, 89 S.Ct. 575, 577-578, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). When sought, our courts have usually been diligent in seeing that, within reason, the right is promptly enforced, and no amount of circumvention has been tolerated by the Supreme Court. Smith v. Hooey, supra; United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). However, because of the wording in the Constitutions, the right to a constitutional speedy trial is necessarily amorphous and relative. In deciding whether the right has been violated, courts usually can only identify some of the factors, see United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and Barker v. Wingo, supra, which factors, contrary to what the majority opinion appears to hold, are exemplary, rather than exhaustive.

The requirements of the Speedy Trial Act are totally distinct from the Federal and State constitutional right of the accused to demand a speedy trial. Also see Cohen, "Senate Bill 1043 and the Right to a Speedy Trial in Texas," 7 American Journal of Criminal Law 23 (March, 1979).

The majority opinion is therefore wrong, wrong, just dead wrong, in holding that "the Act fails to incorporate these factors and thereby seriously encroaches upon a prosecutor's exclusive function without the authority of an express constitutional provision," (footnote deleted) (My emphasis), i.e., because there is no constitutional provision giving the Legislature of this State the right to declare when the State must be ready for trial it has no authority to impose upon the District and County Attorneys of this State a duty to prepare for trial within a certain time period.

I thought that Smith v. Hooey, supra, rejected this type thinking. In Smith v. Hooey, supra, the Supreme Court was confronted with a case in which the defendant, a prisoner in Leavenworth, made demand after demand upon Harris County authorities to bring him back to Harris County so that he might stand trial, but his demands went unheard — until the case reached the Supreme Court of the United States. The Supreme Court granted relief. It held, inter alia, that "if the petitioner in the present case had been at large for a six-year period following his indictment, and had repeatedly demanded that he be brought to trial, the State would have been under a constitutional duty to try him . . . And Texas concedes that if during that period he had been confined in a Texas prison for some other offense, its obligation would have been no less." 89 S.Ct. at 576-77.

The Supreme Court also stated the following in Smith v. Hooey, supra: "[W]e think the Texas [Supreme] court was mistaken in allowing doctrinaire concepts of 'power' and 'authority' to submerge the practical demands of the constitutional right to a speedy trial. Indeed, the rationale upon which the Texas Supreme Court based its denial in the case was wholly undercut last Term in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)," which rejected the argument that the State of Oklahoma was under no obligation to request the presence of the prisoner who was then located in a federal prison outside Oklahoma. In Smith v. Hooey, supra, the Court concluded: "Upon petitioner's demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County courts for trial."

Given what the Supreme Court stated and held in Smith v. Hooey, supra, the Supreme Court has already responded to and rejected the majority opinion's argument that the district and county attorneys of this State have unlimited constitutional "power", "authority" and "discretion" on the subject of the accused's right to a speedy trial. If the State may not ignore a criminal accused's request to be brought to trial, and must make a reasonable effort to secure his presence for trial, and thus must prepare for the oncoming trial, or suffer the consequences, it stands to reason that the Legislature of this State may implement the constitutional right to a speedy trial through a procedure that requires the State to be ready for trial within a certain time frame, and that is exactly what the Legislature of this State did when it enacted the Speedy Trial Act that is now under consideration.

Also see Dickey v. Florida, supra; Barker v. Wingo, supra; Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Ewell, supra.

In response to a trend of concern over the constitutional right to a speedy trial, many courts, federal and State, and many states, including Texas, adopted speedy trial plans to encourage swift prosecution of criminal cases. Even Congress has mandated time constraints in its Speedy Trial Act, see 18 U.S.C. § 3161. The requirements of these plans and statutes create statutory benefits to the accused — in addition to the existing constitutional rights provided by the federal and various state constitutions. See Youngblood, "The Constitutional Right to Speedy Trial," Case and Comment, July-August, 1986. Effective July 1, 1978, Texas joined the ranks when it enacted the provisions of Chapter 32 of the Code of Criminal Procedure, the Speedy Trial Act now under consideration.

Although our Act provides for mandatory sanctions, it has liberal provisions for extending the pertinent intervals if based upon valid and legal extenuating circumstances.

Cohen, see "Senate Bill 1043 and the Right to a Speedy Trial in Texas," 7 American Journal of Criminal Law, adequately gives us a history of and the reasons for the Bill. It is thus unnecessary to say more than a little about those subjects. Also see Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App. 1979); Clinton, "Speedy Trial-Texas Style," 33 Baylor Law Review (Fall, 1981). Cf. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App. 1979) (Clinton, J., concurring opinion). In this instance, it is sufficient to state that the Bill was possibly one of the most uncontested "crime" bills ever to waltz through the Legislature as it received little more than a passing comment or two before the Act passed. The Act passed in the Senate without a single dissenting vote and passed by a substantial margin in the House on the consent calendar, with little change from the Senate version. Almost seven years ago, Cohen predicted: "[T]here is every indication that the Texas Speedy Trial Act should realize its purpose of achieving a speedy trial for every defendant who desires one and a speedier trial for those who do not." And, for the most part, the Speedy Trial Act has well served both accused persons and prosecutors of this State.

Notwithstanding the above, after over 8 years, an aggressive and assertive majority of this Court now holds that the Speedy Trial Act of Texas is unconstitutional — because it violates the separation of powers doctrine. It is almost impossible for me to believe that at least five members of this Court hate the Speedy Trial Act so much that they would be willing to sacrifice their oaths of office to see that the Act is declared unconstitutional on this basis. See Mc Clain v. State, 687 S.W.2d 350 (Tex.Cr.App. 1985), "One may dislike, or even quarrel with the legislative mandate expressed in [the Speedy Trial Act], but it must be followed so long as it is the law. An appellate judge may not pass this cup from his lips. Article I, § 16, Tex. Const. He cannot ignore facts which bring into play laws he does not personally approve, or disregard certain laws in order to reach a desired result in a particular case . . ." (357) (Onion, P.J.). Also see Wilson v. State, 625 S.W.2d 331 (Tex.Cr.App. 1981) (Clinton, J., Concurring Opinion): "The Constitution of the State of Texas mandates that before entering upon the duties of office each Judge of this Court . . . must swear or affirm that he will faithfully execute the duties of office and 'will to the best of his ability preserve, protect, and defend the Constitution and laws' of the State of Texas . . ."

In United States v. Brainer, 691 F.2d 691 (4th Cir. 1982), the Fourth Circuit Court of Appeals recently reversed a district court's holding that the Federal Speedy Trial Act was invalid as "an unconstitutional encroachment upon the Judiciary." See United States v. Brainer, 515 F. Supp. 627, 630 (D.Md. 1981); also see United States v. Howard, 440 F. Supp. 1106, 1109-13 (D.Md. 1977), aff'd on other grounds, 590 F.2d 564 (4th Cir. 1979), cert. denied, 440 U.S. 976, 99 S.Ct. 1547, 59 L.Ed.2d 795 (1979). In reversing the district court's holding, the circuit court of appeals pointed out that notwithstanding the general mandatory requirement that the case may be dismissed if not tried within a certain period of time, the Federal Speedy Trial Act lays down no "rules of decision," but only rules of practice and procedure.

The circuit court also held that the Federal Speedy Trial Act did not arrogate "the judicial function of determining guilt or innocence." The Texas Act also does not intrude upon the judiciary's substantial decision making process of determining guilt or innocence, nor does it encroach upon the District Attorneys and County Attorneys' power to prosecute persons accused of committing crime.

The circuit court of appeals pointed out the following: "In determining whether the Speedy Trial Act disrupts the constitutional balance between Congress and the courts, 'the proper inquiry focuses on the extent to which [the Act] prevents the [judiciary] from accomplishing its constitutionality assigned functions . . . A considerable degree of congressional intervention in judicial administration is constitutionally permissible if such intervention is 'justified by an overriding need to promote objectives within the congressional authority of Congress . . .' "

In this instance, the office of the County Attorney of Freestone County, which was placed in Article V of the Constitution, the Constitutional provision creating the judiciary, when it was created, is asking one member of the Judicial Branch, this Court, to declare the Speedy Trial Act unconstitutional because it violates the separation of powers doctrine because it encroaches upon a non-member of the Judicial Branch of our State Government. What's going on here?

Much like the district court did in Brainer, supra, the majority opinion reasons that because the Sixth Amendment protects the right of the accused to a speedy trial in inexact terms, the Legislature is powerless to fix definite time limits in which the State has to be prepared for trial. This Court should, for the very same reasons used by the circuit court of appeals in Brainer, supra, reject such fallacious and specious reasoning. The circuit court of appeals also pointed out that notwithstanding the inexact terms of the constitutional right to a speedy trial, the act merely secures certain minimal trial rights against encroachment by government. "In no way does it prevent Congress from according the accused more protection than the Constitution requires, nor does it preclude Congress from acting on the public's interest in speedy justice. See Barker v. Wingo, supra." (698). To hold as the majority opinion does, that the Legislature cannot enact legislation that is deemed "necessary and proper" to carrying out the constitutional right to a speedy trial, amounts to holding that the Legislature is barred from enacting any criminal procedural statute unless express permission is granted in the Constitution for it to do so. If this is true, then any prosecuting attorney of this State is free to thumb his nose at any criminal procedural statute that is presently on the books.

It is almost impossible for me to believe that anyone, especially at least five presumptively learned members of this Court, would have the audacity or temerity to question the fact that trial rights are a proper subject for the Legislature.

However, I concede that there are certain limitations on this power of the Legislature. For example, the Legislature is not free to intrude upon the zone of judicial (prosecution?) self-administration and independence to such a degree as to prevent the judiciary (the prosecution?) from accomplishing its constitutionally assigned functions. In Brainer, supra, the circuit court of appeals held that the Federal Speedy Trial Act was not so intrusive: "We do not think that the Act's impact upon the courts [the prosecution?] can fairly be described in such extreme terms." (698). I also do not believe that the Speedy Trial Act's impact upon the prosecution [the judiciary] can be described in such extreme terms, as the majority opinion holds.

In Bedford v. State, 703 S.W.2d 775 (Tex.App.-Houston [14th] 1985), Justice Sears, who authored the opinion for that Court, pointed out that we have many statutes enacted by the Legislature that provide for time limitations and sanctions on the prosecution for failure to comply. See, for example, Arts. 12.01-12.07, 51.14, V.A.A.C.P. These statutes have never been challenged by any prosecuting attorney of this State on the ground that they violated the doctrine of separation of powers. Justice Sears, like Justice Thomas did in the dissenting opinion that he filed in this cause, by analogy to statutes of limitations found the Speedy Trial Act did not violate the doctrine of separation of powers. Quoting from several decisions by this Court, Justice Sears pointed out that "enactments limiting the time for the prosecution of offenses are measures of public policy only and are entirely subject to the will of the legislature . . .," and then correctly concluded that Articles 32A.02 and 28.061, V.A.A.C.P., appear to be no more than "'enactments limiting the time for the prosecution of offenses,' and, as such, are properly within the sphere of legislative authority."

The Speedy Trial Act does not "tamper with" or "trample upon" any discretion that a prosecuting attorney might have. In fact, the Act does not mandate that the prosecuting attorney must do anything. If he chooses not to prepare for trial within the time limitations set out in the Act, that is within his discretion.

A good example of how the Legislature might encroach upon the authority of a district attorney or county attorney to prosecute is if the Legislature passed legislation that would approve what this Court condemned in Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App. 1984), that a trial judge is with authority to enter an order dismissing criminal charges with prejudice and without the right of the prosecuting attorney to refile the charges. Clearly, such would be invalid, not because such would violate the doctrine of separation of powers, but because such would infringe upon the powers granted district attorneys and county attorneys by the Constitution.

Thus, with certain very limited exceptions, none of which are present in this cause, trial rights are a proper subject of legislation. The application of an undue burden/substantial type of test is therefore applicable. The Speedy Trial Act, however, does not unnecessarily burden the prosecution nor does it substantially interfere with the prosecutor's exercise of his power or duty to act. The provisions of the Speedy Trial Act do not require him to do anything. He can do nothing if he so chooses. Although it can be argued that the Act slightly touches upon the prosecutor's internal discipline of his office, that is not the issue; the issue is whether the Legislature, in enacting the Speedy Trial Act, has intruded or encroached upon the prosecutor's domain or territory, i.e., the right to prosecute persons charged with committing criminal wrong. It does not.

Another thing the majority opinion overlooks is that the Act does not penalize action; it penalizes inaction by the prosecution. The Act constitutes a rational effort by the Legislature to enforce the accused's constitutional right to a speedy trial and expresses a public policy that criminal cases be tried within a certain time period. This Act, like similar statutes that have been enacted in other States of the Union, see, for example, State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, 591 (Sup.Ct. 1980), is simply an attempt by the Legislature of this State to cause the criminal justice system of this State to be "shaken by the scruff of its neck." Prepared Statement of the Assistant Attorney General, now Chief Justice, William H. Rehnquist, 1971 Senate Hearings 107, reported in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 17 (1980).

The Speedy Trial Act is not self-executing. It does not provide for an automatic dismissal of a cause simply because a defendant files a motion to dismiss pursuant to the Act. Under the Act, in order to obtain a dismissal, the defendant is first required to establish, if he can, that he has properly invoked the provisions of the Act. If he overcomes this hurdle, and establishes a prima facie case, then the prosecution is called upon to establish, if it can, that it was then ready for trial and had been ready for trial within the time period as set forth in the Act. If the time has run, the prosecution can fall back on the many, many exceptions or safety-valves that are provided in the Act. If valid and legal reasons are given by the prosecution, as to why it was not ready within the time period designated by the Act, it will be the rare appellate court that will reverse a defendant's conviction on the basis that the State failed to comply with the Act, as witness the few, very few, decisions of this Court and the intermediate appellate courts of this State that have granted a defendant relief on this basis. In fact, they are so few cases that are reversed by appellate courts of this State, including this Court, because of the State's failure to meet the requirements of the Speedy Trial Act, that I find this speaks well for the overwhelming majority of the prosecuting attorneys of this State. These figures also tell me that for a prosecuting attorney to lose on a defendant's motion to dismiss for failure of the State to meet the requirements of the Speedy Trial Act such closely resembles an attorney losing an uncontested divorce case. It can be done, but it is awfully hard to lose an uncontested divorce case in this State at this time. The same is true of a prosecuting attorney who loses a Speedy Trial Act motion filed by the accused.

In summary, the only thing that the Speedy Trial Act does is to require the prosecution, within certain time periods, which no one claims are unreasonable, to first procure a charging instrument, secure the presence of the accused, familiarize himself with the law and evidence of the case, and take reasonable steps to ensure the attendance of his witnesses. Isn't this what the vast majority of the prosecuting attorneys of this State, probably since 1836, have always been doing?

In 12 Tex.Jur.3rd, § 30, the following is written: "[A]n act will not be declared unconstitutional on the ground that it is harsh, or unjust, or that it will be productive of hardship. Nor will legislative action be annulled because it may appear to be unwise, inexpedient, impractical, unworkable, or impolitic. The wisdom and reasonableness of legislation is solely a matter of the legislature."

The Speedy Trial Act is a public policy act of the Legislature of this State that focuses solely upon prosecutorial delays and neglect, rather than upon the judicial process as a whole. Barfield v. State, supra. Among its many purposes is to prevent the State's abuse of the defendant's constitutional right to a speedy trial and to afford the defendant his constitutional

right to a prompt adjudication of any criminal charge against him, should he desire to take advantage of this right that the Legislature has given him.

Time after time, this Court has held that the Act addresses itself to prosecutorial delay, rather than to the judicial process as a whole, and because the question of the prosecutor's preparedness does not encompass the trial court or its docket, the Act does not, except in an extremely limited sense, implicate the "real" judiciary of this State. See Santibanez v. State, 717 S.W.2d 326 (Tex.Cr.App. 1986).

The Judicial Branch of our State Government did not authorize the trial judge in this cause to act as its spokesperson and I find nothing in the record before us where the Judicial Branch of our State Government has authorized the County Attorney of Freestone County to act as its spokesperson in this cause. I have yet to find how the County Attorney of Freestone County has "standing" to assert that the Speedy Trial Act is unconstitutional because it violates the doctrine of separation of powers, on the basis that the Act infringes or encroaches upon the functions of the Judicial Branch of our State Government.

Did the Speedy Trial Act infringe or encroach upon the County Attorney of Freestone's discretion to prosecute this defendant? Before the County Attorney of Freestone County can make such a claim, it is necessary that he first show that he has "standing" to make such a claim. As all that the Act did in this instance was to require him to be ready for trial within a certain time period, how has he demonstrated the manner in which his constitutionally ordained right to prosecute is adversely affected? How has the Speedy Trial Act adversely impacted his right to prosecute? How has his right to prosecute been adversely affected by the operation of the Speedy Trial Act? In this instance, the County Attorney never demonstrated to the trial court, the Waco Court of Appeals, or this Court that any constitutional right that he might have to prosecute anyone, much less this defendant, is infringed by the Speedy Trial Act. Again, the Speedy Trial Act did not require the County Attorney of Freestone County to do anything, and by this record that is exactly what he did as far as preparing for trial. I find that the County Attorney has not established that he has "standing" to make the claim that he does in this cause, and this Court should so hold, see and compare Lacombe v. State, 733 P.2d 601 (Wyo. 1987); Gooden v. State, 711 P.2d 405 (Wyo. 1985), and should not annoint that office as being an equal with the other members of the Judicial Department of this State.

I conclude my dissenting opinion with this thought. Is the real reason that the aggressive and assertive majority of this Court holds as it does is because the Act is too harsh on prosecuting attorneys of this State? If that is the underlying reason for the decision to declare the Speedy Trial Act unconstitutional, I suggest that each member of the aggressive and assertive majority team read and memorize what Chief Justice Stayton of the Supreme Court of Texas stated almost 100 years ago in Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (Tex.Sup.Ct. 1892):

It is the duty of a court to administer the law as it is written, and not to make law; and however harsh a statute may seem to be, or whatever may seem to be its omission, courts cannot, on such considerations, by construction sustain its operation, or make it apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government.

Life is full of hard choices. The prosecutors of this State, under the Speedy Trial Act, have the right to get prepared for trial within a certain time period or have the right to exercise their constitutional right to do nothing. See and compare Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The Speedy Trial Act is certainly not unconstitutional because it infringes or encroaches upon these rights that prosecuting attorneys of this State have. In this instance, the County Attorney of Freestone County, as was his right, chose not to get prepared for trial within the time the Act required. He made a hard choice and should be bound by that choice.

The Speedy Trial Act is not unconstitutional because it infringes or encroaches upon the prosecutor's functions. To the majority opinion's contrary holding, I respectfully dissent.

MILLER, Judge, dissenting.

It is difficult to dignify the events of today with a written reply. The temptation is great not to so "honor" the five who have finally found a vehicle by which to negate what has come to be the law most abhorred by the prosecutors of this State. But a watershed such as this merits note, if for no other reason than that it presents a graphic public demonstration of the "philosophy over law" concept of decision-making indulged in by the five who today wreak such havoc on the integrity of the judicial appellate system. This display is even more graphic given that they have sought such a vehicle for several years now, and this is the best they could do. Be that as it may, . . .

Article II, § 1 of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Article V, § 1 of the Texas Constitution provides in part:

The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

Article V, § 21 of the Texas Constitution provides in part:

The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; . . . .

The majority initially errs by finding that the office of the county attorney, and by implication any other State prosecutor, is vested with judicial power subject to protection under the separation of powers clause. It is clear from Art. V, § 1, that the judicial power of this State is vested in only those courts named in the constitutional provision, which does not include the county attorney. The majority's conclusion that Art. V, § 21, supra, confers judicial power on the county attorney defies the specific wording of the constitutional provision.

Moreover, such an implication would support other equally unacceptable conclusions. For instance, the sentence preceding the above quoted portion of Art. V, § 21, supra, states: "In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next election." Under the majority's reasoning, this sentence would confer "judicial" power on the Commissioners Court subject to separation of powers protection. It is doubtful that the framers intended such a result.

Also, the cases that deal with Art. V, § 21, supra, concern encroachment by the attorney general or some other representative, upon the exclusive authority of the county attorney to represent the State. See generally Tex.Const. Art. V, § 21 (Vernon 1955), at casenotes 7 and 8. These cases do not address the issues by reference to Art. II, § 1 separation of powers, but rather resolve any disputes by referring to some specific power enumerated in the Constitution.

For instance, in State v. Moore, 57 Tex. 307, 314 (1882) (cited by the majority, at 254), The Attorney General brought an action against the Travis County Attorney (Moore) to compel him to pay into the state treasury money he collected from a defaulting tax collector and his sureties.

Moore contended that under the State Constitution he was entitled to prosecute and control such cases as representative of the control such cases as representative of the State, and that the county was entitled to retain the money collected. The court found that the Attorney General was empowered to initiate and prosecute suits for money due to the State, in any county of the State where there was no county or district attorney. The Court also found that the law did not delegate to the county attorney the authority to represent the State in all. cases, since Article IV, § 22 of the Texas Constitution permitted the Attorney General to "perform such other duties as may be required by law." The Court stated:

"It must be presumed that the constitution, in selecting the depositaries of a given power, unless it is otherwise expressed, intended that the depositary should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the power."

Thus, the trial court could not divest the county attorney of his authority to represent the State because the Constitution specifically delegated that power to him, not because of some perceived separation of powers problem. In other words, the judiciary was as powerless to substitute the Attorney General for the county attorney as the Attorney General was, though the judiciary be part of the same "branch" (according to the majority) of government as the county attorney. By express wording the judicial power of the State is vested in specifically enumerated courts, not in the county attorneys. Thus, county attorneys are not entitled to separation of powers protection. Be that as it may . . . .

Having determined that the county attorney is entitled to separation of powers protection, and in order to find a separation of powers issue, the majority next finds a power held by the county attorney subject to abrogation by some other branch. This is accomplished by initially considering the above quoted portion of Art. V, § 21, of the Constitution. The majority finds that the stated "duty to represent" is actually a "power" protected from infringement by other departments because of the separation of powers clause contained in Art. II, § 1 of the Texas Constitution.

In order to support this proposition, two Texas cases are cited, the first of which, Moore, supra, held that when the Constitution confers a power upon a specific depositary, that depositary is assumed to have the exclusive authority to exercise that power, unless of course, an express statement to the contrary is shown. The second case, Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052 (1905), was similar to the Moore holding.

In Brady, supra, the Court held that although Art. 5, § 21, supra, gave the county attorney the authority to represent the State, the county attorney was not empowered to do so in all cases. Since Art. IV, § 22 of the Texas Constitution expressly stated that the legislature could authorize the Attorney General to "perform such other duties as may be required by law," such an express provision enabled the legislature to allow the Attorney General to represent the State in some cases.

From these cases, the majority finds that the power of the county attorney to represent the State may not be infringed upon absent an express constitutional provision to that effect. Thus, this power of the county attorney is entitled to protection under the separation of powers clause.

The majority refers to several other cases which confirm or support this proposition: Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261 (1944) (the Legislature may not withdraw certain duties specifically imposed upon one department, nor abridge them, nor interfere with that department's right to exercise them unless the Constitution so provides); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375 (1918) (the Constitution lodges with the county attorneys the duty of representing the State in all cases); Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922) (the Legislature may not restrict the power of the district and county attorneys to represent the State); and Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 167 S.W.2d 580 (Tex.Civ.App.-Austin

1942), aff'd, 141 Tex. 379, 172 S.W.2d 972 (1943) (the authority to bring and maintain actions in the courts to enforce the rights of the State is vested by the Constitution exclusively in the Attorney General and the district and county attorneys, and the legislature is without the authority to divest that power or delegate it to others).

The majority then notes that the duties of county attorneys relative to representing the State are not enumerated in the Constitution. The county attorneys' primary function, however, is to prosecute the pleas of the State in criminal matters. The majority then states that:

"[a]n obvious corollary to a district or county attorney's duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision."

Maj. op. at 254.

For several reasons the majority's position that the power to represent, and its attendant protection from infringement by the legislature, may be equated with the discretion to prepare cases is unacceptable. First, the Constitution is clear and explicit in its statement of what power is to be conferred upon the county attorney: the power to represent. There is no statement concerning preparation of cases, or discretion in the preparation of those cases. Thus, the majority's characterization is not supported by the specific language of the Constitution.

Second, the cases cited by the majority do not support its contention. Those cases all concerned the authority of the Attorney General or district or county attorney to be the attorney (to the exclusion of all others) representing the State in various kinds of cases. There is no discussion of other powers, only of that to represent or prosecute cases on behalf of the State. Thus, those cases do not support the concept that the protected power to represent includes the equally protected discretion to prepare cases.

Last, simply because a power is specified in the Constitution, and is therefore subject to protection (either as an enumerated power as in Moore, supra, or under the separation of powers clause) does not imply that any incident to that power is also accorded the same protection. The discretion to prepare cases is not essential to the county attorney's authority to plead a case on behalf of the State in a court of law. Thus, it should not be deemed subject to the same scrutiny from interference accorded to the ability of the county attorney to appear in court to represent the State's interests.

No case has ever expanded the power of the county attorney under Art. V, § 21, supra, to include function other than that he have the authority to represent the State. For all of the above reasons, the majority opinion fails to formulate a power subject to protection from interference by the legislature. Absent an articulable power, the enumerated powers doctrine of Moore, supra, and the separation of powers clause of Art. II, § 1, supra, are irrelevant. Be that as it may . . .

After finding that the county attorney's discretion to prepare for trial is a power to be accorded protection under the separation of powers clause, the majority next finds that the Speedy Trial Act effects an impermissible encroachment on that discretion to prepare for trial. First, reference is made to Article V, § 25, of the Texas Constitution, which allows the Legislature to regulate the means, manner and mode of a defendant's assertion of rights in court. Next, the majority states that before the preceding section of the Constitution is applicable, there must be a defendant's right for which the Legislature may provide procedural guidelines. Third, the majority determines that although the Speedy Trial Act is an attempt by the Legislature to enact procedural regulations regarding a defendant's right to a speedy trial, the Act fails to actually accomplish this objective since it merely directs the time in which a county attorney may prepare for trial, and fails to account for the four-factor test for whether a defendant's federal right to a speedy trial has been broached (as set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Based upon these findings, the majority concludes that the Act perpetrates an impermissible encroachment upon the power of the county attorney.

For a change, at least the majority's first two observations are correct: the legislature is permitted to regulate with procedural enactments the means, manner and mode of a defendant's assertion of rights in court, and necessary to that authorization is the existence of some right to assert. I cannot, however, accept the majority's remaining contentions and conclusion.

The Speedy Trial Act does more than merely speed the prosecutor's preparation and ultimate readiness for trial: it actually serves to provide the defendant with a means by which to obtain a speedy trial. Article 32A.01, V.A.C.C.P., titled Trial Priorities, mandates that the trial judge give priority to criminal trials over civil trials. This Article thereby addresses one of the two barriers to the obtainment of a speedy trial — that of the order or priority in the trial court's docket. Article 32A.02, V.A.C.C.P., titled Time Limitations, requires that the prosecutor be ready for trial within a certain time limit, and thereby removes the other barrier to the obtainment of a speedy trial — that of the readiness of the prosecutor to go to trial. This observation is clearly supported by the legislative committee hearings referred to in footnote 17 of the majority opinion. Thus, a defendant is accorded an opportunity to obtain a speedy trial through the procedural mechanism of giving precedence to criminal cases and requiring the State to be ready for trial within set time limits as established by the Speedy Trial Act.

The majority's position that since the Act fails to include the four-prong test in Barker, supra, it fails to effectuate a procedural enactment of the means, manner or mode of the defendant's assertion of a right is also untenable. There is nothing in the Barker opinion which indicates that its factors are to be used to gauge the adequacy of a state's law regarding a speedy trial. Rather, the opinion is clearly intended to be used in a flexible manner in situations where such a statute does not exist. The United States Supreme Court states:

"Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example impossible to determine with precision when the right has been denied."

Id., 92 S.Ct. at 2187. Later in the opinion, the Court continues:

"Perhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience in protecting the right. The first suggestion is that we hold that the constitution requires a criminal defendant to be offered a trial within a specified time period. The result of such a ruling would have the virtue of clarifying when the right is infringed and of simplifying courts' application of it. Recognizing this, some legislatures have enacted laws, and some courts have adopted procedural rules which more narrowly define the right. . . .

But such a result would require this Court to engage in legislative rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. . . . The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise."

Id., 92 S.Ct. at 2188. [Emphasis added.]

When considering the issues in Barker, supra, the United States Supreme Court was not faced with the validity of some procedural rule enacting the federal right to a speedy trial, but was rather in a position to construe that right without the benefit of specific legislation. Clearly, the Barker opinion gives no support for the contention that any procedural enactment of the speedy trial right must incorporate the four-factor test set out to guide the Supreme Court when it considered the right without legislative guidance. Actually, the opinion militates against such a holding. Thus, whether the Speedy Trial Act adequately addresses the four factors set out in the Barker opinion is wholly irrelevant to the determination of the viability of the Act vis-a-vis the separation of powers clause. The Barker discussion simply has no place in this analysis. Be that as it may. . . .

The final link in the majority's chain, which finds that the prosecutor's discretion to prepare for trial is unduly restricted by the Speedy Trial Act is also unacceptable. The Speedy Trial Act does not run unless the prosecutor either causes or allows it to run, and then it runs only as long as the prosecutor causes or allows it to run.

A criminal action commences, for purposes of the Speedy Trial Act, when:

1. an indictment, information, or complaint against the defendant is filed in court, unless

2. prior to the filing the defendant is detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which case the criminal action commences when the defendant is arrested.

Article 32A.02, supra.

With regard to the first event stated above, the prosecutor is in control: he or she chooses when to present a case to the grand jury to seek an indictment, or when to file the information or complaint. With regard to the second event stated above, the prosecutor rarely decides when a person is to be arrested. After arrest, and prior to the filing of an indictment or information, however, the prosecutor, as the representative of the State, has considerable control over whether a defendant will be released from jail without restriction as opposed to "detained in custody or released on bond". This control is subject only to approval of the local judiciary, a fellow member of the judicial branch of government under the majority's theory. Of course if he is released from jail without having to post bond then the Act ceases to run as surely as if there were no indictment filed in court.

Since the prosecutor maintains discretion in determining, to a large part, when the actual time limits are to toll, the prosecutor is not deprived of discretion under the provisions of the Act. The prosecutor can either cause the Act to run and be ready within the time limits of the Act, or cause it to cease running by releasing the restraint (by indictment, incarceration, etc.) on the defendant. If the prosecutor is deprived of this "power" of discretion in preparing for trial, it is only when a judge will not release a defendant from jail without bond at the prosecutor's request, as set forth above. Be that as it may. . . .

Contrary to the majority's findings, the Speedy Trial Act is a proper exercise of the Legislature's power to regulate the means, manner and mode of assertion of a defendant's right to a speedy trial. Initially, the executive and judiciary have only those powers granted to them by the Constitution or inherent to such powers; the legislature's powers, however, are plenary, limited only by restrictions stated in or necessarily stemming from the Constitution. See Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560 (Tex. 1963) and In re House Bill No. 537 of the Thirty-eighth Legislature, 113 Tex. 367, 256 S.W. 573 (1923). Thus, the starting point in any discussion of separation of those powers must be that the legislature is presumed to have the power to enact a statute absent an express or necessarily implied prohibition.

Moreover, the legislature is free to exercise its powers in any manner it sees fit; this Court does not sit in judgment of the wisdom of its actions. As was stated in Ferrantello v. State, 158 Tex.Crim. R., 256 S.W.2d 587 (1952):

"It is wise for the courts to remember, when passing upon any question concerning the power of the Legislature, that they might, to cite a fanciful illustration, meet tomorrow and abolish the offense of murder and that such act would be constitutional. The question before the

courts is the power of the Legislature and not the wisdom of its acts."

Id. at 591. Thus, as long as the Speedy Trial Act was effectuated through a valid power of the Legislature, whether it accords a defendant a speedy trial in the most efficient way is irrelevant. If the Legislature has the power to enact the Act, then we may not overturn it simply because there may be a better or more thorough way to guarantee a speedy trial.

Given that the legislature's power to enact laws is plenary; given that we may not focus upon the wisdom of any particular act; given that the legislature has the power to regulate the means, manner and mode of a defendant's assertion of rights in a court under Art. V, § 25 of the Texas Constitution; answering the State's ground of error that the Act usurps the power of the prosecutor-qua-member of the judiciary is simple.

Initially: What specific power (either under an enumeration of power or separation of power theory) would the legislature be accused of usurping anyway? The Constitution speaks in terms of the county attorney "representing the State." In no way does the Act interfere with the prosecutor's power to plea on behalf of the State regarding criminal matters. Thus, there is no direct assault upon the prosecutor's power incurred by the Speedy Trial Act. Moreover, since the Act does not deprive a prosecutor of his or her discretion to bring a case, and merely states when the time limits will begin to run against the State, there is no encroachment upon an incidental power of the prosecutor protected by the Constitution.

Assuming that there is some power attached to the office of county attorney, the complained-of usurpation is permissible. Certainly the defendant has a right to a speedy trial under the Texas Constitution. Also, as stated before, the Speedy Trial Act does provide the defendant with a speedy trial. There is, therefore, a clear nexus between the right sought to be enacted and enactment of that right. Since there is a right guaranteed by the Constitution, and since the Act effectuates that right to some extent, the Legislature has not acted beyond the scope of its power.

Last and perhaps most important, if we declare the Speedy Trial Act unconstitutional under separation of powers in the manner presented in the majority opinion, what act of the legislature regulating the prosecution is ever safe from our attack? Do we not ourselves trespass into the legislative sphere by so holding, and effect a violation of the legislature's power to pass or repeal laws? Do we not ourselves trespass into the executive sphere by so holding, and effect a violation of the executive's power to veto or approve legislation?

But alas, who is there to tell this Court when we have so transgressed, or to correct our most egregious non-federal mistakes? Under our structure of government, no one. It is this aspect which ultimately pronounces today's action by the majority so totally reprehensible.

"The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

James Madison, "Federalist No. 47," The Federalist, supra at p. 336.

The Speedy Trial Act simply does not encroach upon any "power" of the prosecutor to an impermissible extent. There is certainly no justification or cause to find that the Act is unconstitutional as a violation of the separations of powers clause.

To the majority's failure to follow our own Constitution and caselaw and give due deference and consideration to the powers of our other branches of government, and to the setting of such frightful precedent, I dissent with an overwhelming sense of foreboding.

TEAGUE and DUNCAN JJ., join.