Meshell v. State

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 *261 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In an unpublished majority opinion, the Waco Court of Appeals affirmed the trial court’s judgment of conviction.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. Ill, § 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, Sec. 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, impermissi-bly 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, 1 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 *262 ‘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.” An-tieau, 2 Modem 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 *263 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.Cr.R. 528 , 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 prosecu-torial [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 prose-cutorial 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 appli *264 cable 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 ratio *265 nale 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. 2

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: “[Tjhere 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 *266 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 Me 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 precludé Con *267 gress 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. Benson, 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. *268 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 constitu *269 tional 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 Papa-christou 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 *270 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.

. Although Judge Clinton is technically correct, that the State’s contention that the Speedy Trial Act is unconstitutional because it violates the doctrine of separation of powers is not properly before us, see the dissenting opinion he has filed in this cause, to adopt in this cause what he advocates would, I believe, amount to "judicial wheelspinning.” The issue that the State presents must be resolved, here and now, for better or for worse. Of course, if worse, a different aggressive and assertive majority of this Court will be free in the future to expressly overrule what today’s aggressive and assertive majority states and holds.

. By the majority opinion the amendment to the Speedy Trial Act, see H.B. 23, which has been signed by the Governor, effective September 1987, is today also, albeit implicitly, held to be unconstitutional.