Texas, the State Of v. Condran, Charles Franklin ( 1998 )

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COURT OF CRIMiNAL APPEALS
OPINION CORRECTION MEMO
DATE: NOVEMBER 3, 1998
FROM: Faye Koenig
DeputyClerk
05 (3I3/’’
RE: CHARLES FRANKLIN CONDRAN COURT
APPEAL.S
CAUSE NOS. 1152-97 and 1153-97 r,
COLLIN COUNTY 197g
DELIVERED OCTOBER 7, 1998 1!i fl’m
J •.Lfl
Enclosed is a corrected copy of the Opinion in the above styled case issued by the Court.
Changes were made to pages five and six of the dissenting opinion by Judge Keller.
If you have any questions concerning the matter, please contact me at the Clerk’s Office,
P. 0. Box 12308, Austin, Texas 78711, phone number (512) 936-1621. Thank you for your
cooperation.
PLEASE RtPLACE THE uRIUINAL 0?INIONS LOCATED IN rUE SHUCKS WITh
THE ENCLOSED uPINIONS. ThAN& You VERY MuCH.
q&
THE STATE OF TEXAS Petitions for Discretionary Review
From the FIFTH
NO. 1152-97 & us—7 Court of Appeals
CHARLES FRANKLIN CONDRAN, Appellee
[COLLIN County]
OPINIOf{ON APPELLEE’S PETITIONS FOR
DISCRETIONARY REVIEW
Appellee filed an application for writ of habeas corpus contending
he was entitled
to discharge because he was indicted outside the “next term of court”
as set out in An.
32.01, V.A.C.C.P. After a hearing, the thai judge ordered the indictm
ent dismissed with
prejudice. The State appealed and the court of appeals reversed the thai
court’s order
dismissing the indictment against appellee and remanded the causes for
thai. State v.
Condnn, 951 S.W.2d 178 (Tex.App. Dallas 1997). We granted review
-
to determine the
correctness of that decision.
However, after carefully considering the questions for review and briefs before us,
we find that our decision to grant appellee’s petitions for discretionary review was
improvident. Accordingly, the petitions for discretionary review are dismissed.
PER CURIAM
Holland, 3., not participating
Delivered: October 7, 1998
En banc
Publish
THE STATE OF TEXAS Petition for Discretionary
Review from the Fifth
NOS. 1162-97, 1163-97 V. Court of Appeals
CHARLES FRANKLIN CONDRAN, (COLLIN County)
Appe lie e
DISSEWING OPINION ON APPELLEE’S
PETITION FOR DISCRETIONARY REVIEW
I would address whether former Article 28.061,’ as it applies
to former Article 32.01, violates the Separation of Powers Clause
of the Texas Constitution. Because I }‘elieve that the provision in
question does violate the Separation of Powers Clause, I would
a f finn.
Former Article 32.01 (1994) states:
When a defendant has been detained in custody or held to
bail for his appearance to answer any criminal accusation
before the district court, the prosecution, unless
otherwise ordered by the court, for good cause shown,
supported by affidavit, shall be dismissed and the bail
discharged, if indictment or information be not presented
against such defendant at the next term of court which is
held after his commitment- or admission to bail.2
Former Article 28.061 (1994) states in relevant part: ‘1A discharge
under.. .Article 32.01 of this code is a bar to any further
prosecution for the offense discharged and for any other offense
.
arising out of the same transaction. . ..“ (ellipses inserted)
1
All references to articles are to the Texas Code of
Criminal Procedure unless otherwise indicated.
2
In 1997, the Legislature added-to the end of that provision
“...or before the 180th day after the date of commitment or
admission to bail, whichever date is later.” This change applies
only to the prosecution of defendants arrested for an offense on or
after the effective date of the new law. Section 4 of Acts 1997,
75th Leg., ch. 289.
I note that the Legislature has subsequently revised
Article 28.061 by deleting any reference to Article 32.01. This
CONDRAN - 2
Hence, former Article 28.061 required a dismissal of the
prosecution with prejudice if the State failed indict the accused
within the time specified in Article 32.01. The question in the
present case is whether that requirement violates separation of
powers.
Unlike the United States Constitution, the Texas Constitution
contains an explicit Separation of Powers Clause. See Texas
Constitution, Article II §1. This clause is violated “when one
branch unduly interferes with another branch so that the other
branch cannot effectively exercise its constitutionally assigned
powers.” State v. Williams, 938 S.W.2d 456, 458 (Tex. Crim. App.
1997) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239
(Tex. Crim. App. 1990)).
In Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987), we
held that the Texas Speedy Trial Act, Article 32A.02, unduly
interfered with the Judicial Branch by circumscribing a district or
county attorney’s discretion to prosecute cases. As a result, we
found the Speedy Trial Act to be void on the ground that it
violated the Separation of Powers Clause of the Texas Constitution.
Id. at 258. In finding undue interference with the prosecutor’s
discretion, we explained that the Speedy Trial Act was not a
change applies only to the prosecution of defendants arrested for
an offense on or after the effective date of the new law. Section
4 of Acts 1997, 75th Leg., ch. 289.
A violation can also occur through an improper assumption
(or delegation) of power by one branch that properly belongs to
another. Williams, 938 S.W.2d at 458.
CONDRflJ - 3
legitimate attempt to provide procedural guidelines for enforcing
a defendant’s constitutional right to a speedy trial because it did
not incorporate the traditional factors considered in that
constitutional inquiry. Id. at 256-257.
Since Meshell, we have addressed the constitutionality of two
other statutes involving time limits in a prosecution. In Jones i,,
State, 803 S.W.2d 712 (Tex. Crim. App. 1991), we upheld Article
17.151 as constitutional against a challenge that the statute
unduly interfered with prosecutorial discretion. Article 17.151
required that a defendant be released on bond if the prosecutor was
not ready for trial within specified time limits. Jones, 803
S.W.2d at 716. We drew a distinction between the mere release of
a defendant on bond from the setting aside of the prosecution that
occurred in Meshell. Jones, 803 S.W.2d at 716. And, we noted that
the Speedy Trial Act dictated that dismissals occurred “with
prejudice.” Id. at 716 n. 2.
In Williams, we addressed whether a speedy trial provision
contained in the Interstate Agreement on Decainers Act (IADA) was
unconstitutional. The IADA imposes deadlines for commencing trial
after receiving an out-of-state prisoner. Article 51.14, Article
IV(c) . If those deadlines are not met, the trial court is
Those factors, set out by Barker v. Wingo, are: (1) the
length of the delay before trial, (2) the reason for the delay, (3)
the defendant’s assertion of his right to a speedy trial, and (4)
any prejudice to a defendant resulting from that delay .n trial.
Meshell, 739 S.W.2d at 256.
CONDRAN - 4
instructed to dismiss the prosecution with prejudice. Article
61.14, Article V(c) . We held that the prosecutor, by obtaining a
prisoner through the IADA, submitted to a contract, in which he
relinquished some of his power in exchange for the benefit of
obtaining custody of the out-of-state prisoner. 938 S.W.2d at 460.
We further held that the Separation of Powers Clause did not
prevent such a contractual relinquishment of authority. Id. at
460-462.
The lesson drawn from Meshell, Jones, and Williams is that a
legislatively imposed deadline for prosecutorial action violates
the Separation of Powers Clause if (1) the remedy for failing to
meet the deadline seriously disrupts the prosecutor’s ability to
perform his duties, (2) the deadline cannot be justified as
necessary to effectuate a superior constitutional interest, and (3)
the prosecutor did not contractually submit to the deadline. In
Jones, condition (1) was not true because the remedy of releasing
the prisoner on bail did not seriously disrupt the prosecutor’s
ability to perform his duties. In Williams, condition (3) was not
true because the prosecuting authorities had submitted to the
deadline by requesting a prisoner under the IADA. But in Meshell,
all three of these conditions were true. The remedy for a
violation of the Speedy Trial Act was dismissal with prejudice —
a remedy which necessarily causes a serious disruption in a
prosecutor’s ability to perform his duties by conclusively
terminating the prosecution. The only constitutional interest
CONDRAN - 5
arguably involved, the right to a speedy trial, was not effectuated
by the Speedy Trial Act because the Barker factors were not
included. And, the prosecuting authorities did not contractually
submit to the deadlines established.
To the extent that it attaches the remedy of dismissal with
prejudice to the failure to meet the deadline established in
Article 32.01, former Article 28.061 is like the Speedy Trial Act
in all relevant respects. Both carry the remedy of dismissal with
prejudice and neither involves contractual submission to the
deadline by the prosecuting authorities. And, as with the Speedy
Trial Act, former Article 28.061 is not shown to be necessary to
effectuate a superior constitutional interest. Essentially,
Article 32.01 creates a right to a speedy indictment. To the
extent that the Legislature was concerned that a person might be
held for an inordinately long time in jail or on bail, Article
32.01 alone would satisfy that concern; the enforcement mechanism
contained in former Article 28.061 would be unnecessary.
The only constitutional right that is arguably implicated —
to which a remedy of dismissal with prejudice would attach — is the
Due Process Clause’s guarantee against prejudicial preindictment
delay. See United States v. Marion, 404 U.S. 307, 324 (1971). To
determine whether the Due Process Clause has been violated, a court
must consider the actual prejudice to the defendant caused by the
delay and the reasons for delay. Id, see also United States v.
CONDPfl - 6
Lovagco, 431 U.S. 783, 789-790 (1977) .
Like the Speedy Trial Act,
the speedy indictment provision does not require a showing of
prejudice. Nor does the provision call for considering the reasons
for delay. Hence, as in Meshell, the provision in question does
not incorporate the constitutionally relevant factors.
The above discussion shows that Meshell controls on the
question presented here. The enforcement provision contained in
former Article 28.061 for violations of Article 32.01 is
unconstitutional because it violates the Separation of Powers
Clause of the Texas Constitution. That provision is therefore void
and of no effect.
The only remaining question is whether appellant would be
entitled to a dismissal without prejudice under Article 32.01. Our
prior precedent indicates that an Article 32.01 objection becomes
moot after an indictment has issued. Tatum V. State, 505 S.W.2d
548, 550 (Tex. Crim. App. 1974) . Some courts of appeals have
disputed the continuing viability of that precedent because the
Legislature subsequently added the prejudice” enforcement
provision to Article 28.061 after the cases establishing that
precedent were decided. See Norton v. State, 918 S.W.2d 25, 28
(Tex. App.-- Houston [14th Dist.] 1996, pet. dismd. as
6
A majority of the federal circuits require a defendant to
show that the reasons for delay amount to bad faith. See United
States v. Crouch, 84 F.3d 1497, 1511 n. 13 (5th Cir. 1996) (en
banc), cert. denied, U.S. 117 S. Ct. 736 (1997).
, A
minority of the circuits balance the reasons for delay against the
prejudice suffered. Id.
CONDRAN - 7
improvidently granted); Ex Parte Knight, 904 S.W.2d 722, 725 (Tex.
App. --Houston (1st Dist.] 1995) However, because I would hold the
relevant portion of Article 28.061 to be unconstitutional, the
concerns of those courts would no longer be of any moment.
I would affirm the Court of Appeals and hold that the portion
of former Article 28.061 that applies to former Article 32.01 is an
unconstitutional violation of the Separation of Powers Clause
of
the Texas Constitution. I dissent to the majority’s dismissal of
appellee’ a petition.
KELLER, J.
DELIVERED: October 7, 1998
PUB LI SR
En Banc
McCormick, P.J., and Mansfield, J., join.
THE STATE OF TEXAS Petitions for Discretionary Review
From the FIFTH
NO. 1152-97 & 1353—97 Court of Appeals
CHARLES FRANKLIN CONDRAN, Appellee [COLLIN County]
OPINION ON APPELLEE’S PETITIONS FOR
DISCRETIONARY REVIEW
Appellee filed an application for writ of habeas corpus contending he was entitled
to discharge because he was indicted outside the “next term of court” as set out in An.
32.01, V.A.C.C,P. After a hearing, the thai judge ordered the indictment dismissed with
prejudice. The State appealed and the court of appeals reversed the thai court’s order
dismissing the indictment against appellee and remanded the causes for thai. State v.
Condran, 951 S.W.2d 178 (Tex.App. Dallas 1997). We granted review to determine the
-
correctness of that decision.
However, after carethily considering the questions for review and briefs before us,
we find that our decision to grant appellee’s petitions for discretionary review was
improvident. Accordingly, the petitions for discretionary review are dismissed.
PER CURIAM
Holland, S., not participating
Delivered: October 7, 1998
En banc
Publish
THE STATE OF TEXAS Petition for Discretionary
Review from the Fifth
NOS. 1152-97, 1153-97 V. Court of Appeals
CHARLES FRANKLIN CONDRAN, [COLLIN County]
Appellee
DISSENTING OPINION ON APPELLEE’S
PETITION FOR DISCRETIONARY REVIEW
I would address whether former Article 28.061,’ as it
applies
to former Article 32.01, violates the Separation of Power
s Clause
of the Texas Constitutton. Pecause I believe that the provision in
question does violate the Separation of Powers Clause, I would
affirm.
Former Article 32.01 (1994) states:
When a defendant has been detained in custody or held to
bail for his appearance to answer any criminal accusation
before the district court, the prosecution, unless
otherwise ordered by the court, for good cause shown,
supported by affidavit, shall be dismissed and the bail
discharged, if indictment or information be not presented
against such defendant at the next term of court which is
held after his commitment- or admission to bail.2
Former Article 28.061 (1994) states in relevant part: “A discharge
under.. .Article 32.01 of this code is a bar to any further
prosecution for the offense discharged and for any other offense
arising out of the same transaction....” (ellipses inserted) )
All references to articles are to the Texas Code of
Criminal Procedure unless otherwise indicated.
2
In 1997, the Legislature adde&to the end of that provision
.or before the 180th day after the date of commitment or
admission to bail, whichever date is later.” This change applies
only to the prosecution of defendants arrested for an offense on or
after the effective date of the new law. Section 4 of Acts 1997,
75th Leg., ch. 289.
I note that the Legislature has subsequently revised
Article 28.061 by deleting any reference to Article 32.01. This
CONDRAN - 2
Hence, former Article 28.061 required a dismissal of the
prosecution with prejudice if the State failed indict the accused
within the time specified in Article 32.01. The question in the
present case is whether that requirement violates separation of
powers.
Unlike the United States Constitution, the Texas Constitution
contains an explicit Separation of Powers Clause. See Texas
Constitution, Article II §1. This clause is violated ‘1when one
branch unduly interferes with another branch so that the other
branch cannot effectively exercise its constitutionally assigned
powers.” State v. Williams, 938 S.W.2d 456, 458 (Tex. Crim. App.
1997) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239
(Tex. Crim. App. 1990)).
In Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) , we
held that the Texas Speedy Trial Act, Article 32A.02, unduly
interfered with the Judicial Branch by circumscribing a district or
county attorney’s discretion to prosecute cases. As a result, we
found the Speedy Trial Act to be void on the ground that it
violated the Separation of Powers Clause of the Texas Constitution.
Id. at 258. In finding undue interference with the prosecutor’s
discretion, we explained that the Speedy Trial Act was not a
change applies only to the prosecution of defendants arrested for
an offense on or after the effective date of the new law. Section
4 of Acts 1997, 75th Leg., ch. 289.
A violation can also occur through an improper assumption
(or delegation) of power by one branch that properly belongs to
another. Williams, 938 S.W.2d at 458.
CONDRAN - 3
legitimate attempt to provide procedural guidelines for enforcing
a defendants constitutional right to a speedy trial because it did
not incorporate the traditional factors considered in that
constitutional inquiry. Id. at 256-257.
Since Meshell, we have addressed the constitutionality of two
other statutes involving time limits in a prosecution. In Jones ,.
State, 803 S.W.2d 712 (Tex. Crim. Apn. 1991), we upheld Article
17.151 as constitutional against a challenge that the statute
unduly interfered with prosecutorial discretion. Article 17.151
required that a defendant be released on bond if the prosecutor was
not ready for trial within specified time limits. Jones, 803
S.W.2d at 716. We drew a distinction between the mere release of
a defendant on bond from the setting aside of the prosecution that
occurred in Meshell. Jones, 803 S.W.2d at 716. And, we noted that
the Speedy Trial Act dictated that dismissals occurred “with
prejudice.” Id. at 716 n. 2.
In Williams, we addressed whether a speedy trial provision
contiined in the Interstate Agreement on Oetainers Act (lAnA) was
unconstitutional. The IADA imposes deadlines for commencing trial
after receiving an out-of-state prisoner. Article 51.14, Article
IV(c) . If those deadlines are not met, the trial court is
Those factors, set out by Barker v. Wingo, are: (1) the
length of the delay before trial, (2) the reason for the delay, (3)
the defendant’s assertion of his right to a speedy trial, and (4)
any prejudice to a defendant resulting from that delay in trial.
Meshell, 739 S.W.2d at 256.
CONDRAN - 4
instructed to dismiss the prosecution with prejudice. Article
61.14, Article V(c) . We held that the prosecutor, by obtaining a
prisoner through the IADA, submitted to a contract, in which he
relinquished some of his power in exchange for the benefit of
obtaining custody of the out-of-state prisoner. 938 S.W.2d at 460.
We further held that the Separation of Powers Clause did not
prevent such a contractual relinquishment of authority. Id. at
460-462.
The lesson drawn from Meshell, Jones, and Williams is that a
legislatively imposed deadline for prosecutorial action violates
the Separation of Powers Clause if (1) the remedy for failing to
meet the deadline seriously disrupts the prosecutor’s ability to
perform his duties, (2) the deadline cannot be justified as
necessary to effectuate a superior constitutional interest, and (3)
the prosecutor did not contractually submit to the deadline. In
Jones, condition (1) was not true because the remedy of releasing
the prisoner on bail did not seriously disrupt the prosecutor’s
ability to perform his duties. In Williams, condition (3) was not
true because the prosecuting authorities had submitted to the
deadline by requesting a prisoner under the ThEA. But in Meshell,
all three of these conditions were true. The remedy for a
violation of the Speedy Trial Act was dismissal with prejudice —
a remedy which necessarily causes a serious disruption in a
prosecutor’s ability to perform his duties by conclusively
terminating the prosecution. The only constitutional interest
CONDRAN - 5
arguably involved, the right to a speedy trial, was not effectu
ated
by the Speedy Trial Act because the Barker factors were not
included. And, the prosecuting authorities did not contractually
submit to the deadlines established.
To the extent that it attaches the remedy of dismissal with
prejudice to the failure to meet the deadline established in
Article 32.01, former Article 28.061 is like the Speedy Trial Act
in all relevant respects. Both carry the remedy of dismissal with
prejudice and neither involves contractual submission to the
deadline by the prosecuting authorities. And, as with the Speedy
Trial Act, former Article 28.061 is not shown to be necessary to
effectuate a superior constitutional interest. Essentially,
Article 32.01 creates a right to a speedy indictment. To the
extent that the Legislature was concerned that a person might be
held for an inordinately long time in jail or on bail, Article
32.01 alone would satisfy that concern; the enforcement mechanism
contained in former Article 28.061 would be unnecessary.
The only constitutional right that is arguably implicated —
to which a remedy of dismissal with prejudice would attach — is the
Due Process Clause’s guarantee against prejudicial preindictment
delay. See United States v. Marion, 404 U.S. 307, 324 (1971). To
determine whether the Due Process Clause has been violated, a court
must consider the actual prejudice to the defendant caused by the
delay and the reasons for delay. Id; see also United States v.
CONDRAN - 6
Lovasco, 431 U.S. 783, 789-790 (1977) •6
Like the Speedy Trial Act,
the speedy indictment provision does not require a showing of
prejudice. Nor does the provision call for considering the reasons
for delay. Hence, as in Meshell, the provision in question does
not incorporate the constitutionally relevant factors.
The above discussion shows that Meshell controls on the
question presented here. The enforcement provision contained in
former Article 28.061 for violations of Article 32.01 is
unconstitutional because it violates the Separation of Powers
Clause of the Texas Constitution. That provision is therefore void
and of no effect.
The only remaining question is whether appellant would be
entitled to a dismissal without prejudice under Article 32.01. Our
prior precedent indicates that an Article 32.01 objection becomes
moot after an indictment has issued. Tatum v. State, 505 S.W.2d
548, 550 (Tex. Crim. App. 1974) . Some courts of appeals have
disputed the continuing viability of that precedent because the
Legislature subsequently added the “with prejudice” enforcement
provision to Article 28.061 after the cases establishing that
precedent were decided. See Norton v. State, 918 S.W.2d 25, 28
(Tex. App.-- Houston (14th Dist.1 1996, pet. dism’d. as
6
A majority of the federal circuits require a defendant to
show that the reasons for delay amount to bad faith. See United
States v. crouch, 84 F.3d 1497, 1511 n. 13 (5th Cir. 1996) (en
banc), cert. denied, U.S. , 117 S. Ct. 736 (1997). A
minority of the circuits balance the reasons for delay against the
prejudice suffered. Id.
CONDRAN - 7
improvidently granted); Ex Parte Knight, 904 S.W.2d 722, 725 (Tex.
App. --Houston [1st Dist.) 1995). However, because I would hold the
relevant portion of Article 28.061 to be unconstitutional, the
concerns of those courts would no longer be of any moment.
I would affirm the Court of Appeals and hold that the
portion
of former Article 28.061 that applies to former Article 32.01
is an
unconstitutional violation of the Separation cit Powers Clause
of
the Texas Constitution. I dissent to the majority’s dismissal of
appellee’ s petition.
KELLER, J.
DELIVERED: October 7, 1998
PUBLISH
En Banc
McCormick, P.J., and Mansfield, J., join.
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Qtriminal ppcaL
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LISA ROMBOK
pitoL station CLERK 5TH COURT OF APPEALS
COURTHOUSE 600 COMMERCE 2ND FLOOR
in,Ecxa 78711
DALLAS TX 75202
1152-97
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