Jones v. State

• Decision Date: 23 January 1991
• Docket Number: No. 1552-89,1552-89
• Citation: 803 S.W.2d 712
• Parties: Ex parte George Robert JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 712

803 S.W.2d 712

Ex parte George Robert JONES, Appellant, v. The STATE of Texas, Appellee.

No. 1552-89.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 23, 1991.

Ward Casey, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall and Lisa C. McMinn, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

This is a petition for discretionary review following appeal from a denial of relief in a pre-trial writ of habeas corpus. Appellant was indicted for murder and capital murder and his combined bail on these two offenses was set at $550,000.00. Appellant has been in custody continuously on these charges since October 7, 1988. Pursuant to his writ of habeas corpus, a hearing was held on April 7, 1989, and continued on April 10, 1989. At the conclusion of this hearing the trial court reduced the combined bond to $105,000.00. Appeal was taken to the Second Court of Appeals. Jones v. State, 780 S.W.2d 506 (Tex.App.--Fort Worth, 1989).

On appeal it was contended, inter alia, that the habeas court erred in failing to reduce the bond to an amount the undisputed evidence shows appellant could meet, viz: $14,000.00. Both in the habeas court and on appeal appellant argued he was entitled to have his bail set at that amount by operation of Article 17.151, V.A.C.C.P. In relevant part that article provides:

"Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the State is not ready for trial of the criminal action for which he is being detained within:

(1) 90 days from the commencement of his detention if he is accused of a felony[.]"

The court of appeals held that the State failed to meet its burden of proof under this provision to show that it was ready for trial within 90 days of the commencement of appellant's detention. However, the court of appeals also agreed with the State that Article 17.151 "is a constitutionally impermissible infringement on the judicial branch by the legislature" and therefore "suffers similar constitutional defects as noted by the Court of Criminal Appeals in the Speedy Trial Act, article 32A.02." 780 S.W.2d at 509-510. See Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987). Finding thus that it violated Article II, § 1 of the Texas Constitution, the court of appeals struck down Article 17.151, supra. The court of appeals also noted the earlier holding of the Austin Court of Appeals in Ex parte Danziger, 775 S.W.2d 475 (Tex.App.--Austin 1989, pet. granted). In Danziger the Austin court had held that because Article 17.151 was promulgated in the same Senate Bill as was the Speedy Trial Act, and because that Senate Bill contained no savings clause, Meshell v. State, supra, had the effect of striking down the entire Senate Bill, including the section enacting Article 17.151. But see Ex parte Delk, 750 S.W.2d 816 (Tex.App.--Tyler 1988). Appellant's point of error was accordingly overruled.

We granted appellant's petition for discretionary review to address the constitutionality of Article 17.151, supra. Tex.R.App.Pro., Rule 200(c)(1), (2) & (4). We also granted the State's petition for discretionary review to consider whether the court of appeals erred in holding the State failed to meet its burden to prove it was ready for trial within the statutorily allotted 90 days. Rule 200(c)(2), supra.

I.

To the extent the court of appeals relied upon the Austin court's holding in Ex parte Danziger, supra, we believe it was in error. ¹

Both Article 32A.02 and Article 17.151 were promulgated by the 65th Legislature in Senate Bill 1043. See Acts 1977, 65th leg., ch. 787, pp. 1970 & 1972, §§ 1 & 2, eff. July 1, 1978. The bill contains no severability clause. Even so, should part of the bill be held invalid, as Meshell did, "the remainder of the statute must be sustained if it is complete in itself and capable of being executed in accordance with the intent wholly independent of that which has been rejected." Tussey v. State, 494 S.W.2d 866, at 870 (Tex.Cr.App.1973), and cases cited. Invalidity of a part of a statute "does not affect other provisions or applications of the statute that can be given effect without the invalid provision or application[.]" V.T.C.A. Government Code, § 311.032, applicable to Senate Bill 1043, see § 311.002 and Barbee v. State, 432 S.W.2d 78, at 82 (Tex.Cr.App.1968) (Opinion on appellant's motion for rehearing). See also Article 54.01, V.A.C.C.P. Quoting 12 Tex.Jur.3rd, Constitutional Law § 42, the Court observed in Meshell v. State, supra, at 257:

" ... Invalidity of a part [of a legislative enactment] does not necessarily destroy the entire act, unless the valid part is so intermingled with all parts of the act so as to make it impossible to separate them, and so as to preclude the presumption that the legislature would have passed the act anyhow."

Article 32A.02 was enacted in § l of Senate Bill 1043. In § 4 of Senate Bill 1043 the Legislature also enacted Article 28.061, V.A.C.C.P. In Meshell the Court found Article 28.061 to be "the enforcement mechanism" for Article 32A.02, and concluded on that basis that the Legislature would not have promulgated one without the other. Thus, Article 28.061 was ruled invalid by virtue of the unconstitutionality of Article 32A.02. Article 17.151 was enacted in § 2 of House Bill 1043. In our view, however, unlike Article 28.061, Article 17.151 can be given effect wholly independently of Article 32A.02, without hindering or distorting the obvious legislative intent to provide assurance that an accused will not be held in custody indefinitely while the State is not at least prepared to bring him to trial. We hold that Article 17.151 was not effectively struck down by our opinion in Meshell simply because it was contained in the same Senate Bill. To the extent it held otherwise, the opinion of the Austin Court of Appeals in Ex parte Danziger, supra, is overruled.

It remains to determine whether Article 17.151 is itself unconstitutional for the same reason we held Article 32A.02 to be, viz: that in enacting it the Legislature encroached upon the prosecutor's discretion, as a judicial officer, in the preparation of cases for trial, in violation of Article II, § 1, supra.

II.

In Meshell v. State, supra, this Court held that under Article II, § 1, "the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision." 739 S.W.2d at 254-55. The Court did not believe Article 32A.02 was sufficiently grounded in judicially pronounced standards for measuring whether the constitutional right to speedy trial is violated to justify legislative incursion upon the prosecutorial function. Specifically, the Court reasoned that Article 32A.02 failed to account for certain considerations set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), viz: the reason for delay between accusation and trial, whether the accused asserted the right to a speedy trial, and whether denial of the right worked to his prejudice. Because Article 32A.02 required that prosecution be set aside without due regard for all the constitutionally relevant factors, the Court held it to be an impermissible encroachment upon prosecutorial discretion, in violation of separation of powers.

In the instant cause the court of appeals reasoned that Article 17.151 similarly "encroaches on the prosecution's discretion in the preparation of cases for trial because it forces the county and district attorneys of this state to either bring criminal prosecutions within a short period of time or allow the release of those defendants upon any bail, however low, that such defendants can afford." Jones v. State, supra, at 510. It does so without any consideration of whether 1) there may be some good reason for delay, 2) the defendant has requested a speedy trial, or 3) defendant has suffered prejudice to his cause on account of delay. Indeed, the court of appeals believed, in some respects Article 17.151 "is a tighter constraint on the prosecutor's discretion than those contained in" Article 32A.02, in that the latter at least provided, in its subsection 4(6), "for some circumstances under which a delay would not require discharge of the defendant." Jones v. State, supra, at 510 & n. 4.

The State now reiterates that Article 17.151 violates separation of powers inasmuch as, like Article 32A.02, it penalizes the dilatory prosecutor without accounting for the above factors relating his dilatoriness to a violation of the constitutional right to speedy trial. Undoubtedly, Article 17.151 may be perceived as to some degree exacting a penalty upon the State's unpreparedness for trial. Our opinion in Meshell notwithstanding, however, that perception does not end the analysis.

Courts in Texas have recognized two varieties of violation of separation of powers:

"First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more 'properly attached' to another branch. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.1973). The provision [Article II, § 1] is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Rose v. State, 752 S.W.2d 529, 535 (Tex.Cr.App.1987); Meshell v. State, [supra, at] 252 ...; see 16 C.J.S. Constitutional Law § 112 (1984)."

Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Cr.App., 1990) (Emphasis in the original). We conclude that in promulgating Article 17.151, supra, the Legislature has neither "assumed" a prosecutorial function, nor "unduly interfered" with one.

"The power and authority of a state legislature is...