Dwayne E. FISK, Appellant, v. The STATE of Texas, Appellee, 958 S.W.2d 506

OPINION ROSS, Justice. Dwayne Fisk appeals the denial of his preeonviction writ of habeas corpus, which he filed after he was indicted for a murder in Hooks, Texas. We will affirm this denial. In his sole point, Fisk contends-that the trial court erred in denying his discharge from bail and in denying the dismissal of his indictment with prejudice because he was not indicted within two grand jury terms of his arrest in accordance with Texas. Code of Criminal Procedure

Article 28.061 and

Article 32.01. The terms of the 202 nd District Court in Bowie County are January, April, July, and October. Tex. Gov’t Code Ann. § 24.381(d) (Vernon 1988). Fisk was arrested in July 1992. He was released on bond three months later. In December 1992, the Hooks Police Department turned over their investigation to the district attorney. Fisk was indicted for the murder in July 1995, three years after he was arrested. There is no dispute that eleven grand jury terms passed from the time he was arrested to the time he was indicted. Over two years after he was indicted, on August 28,1997, Fisk filed a writ of habeas corpus based solely on

Article 32.01. On September 2,1997, the court held a hearing on the writ. The State did not contest the dates alleged by Fisk or attempt to show good cause for the delay. After hearing testimony from one defense witness, and after considering this Court’s language in Uptergrove v. State, 881 S.W.2d 529, 530-31 (Tex.App.—Texarkana 1994, writ ref'd), the trial court denied Fisk’s request for ha-beas corpus relief. HISTORY of

ARTICLE 28.061 and

ARTICLE 32.01 To fully understand the issue concerning untimely indictments and their ensuing effect, a brief history of statutory language and its

interpretation is appropriate. Prior to May 1997,

Article 32.01 provided: 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 the court which is held after his commitment or admission to bail. Tex.Code Crim. Proc. Ann. art. 32.01 (emphasis added), amended by Act of May 12, 1997, 75 th Leg., R.S., ch. 289, § 2, 1997 Tex. Gen. Laws 1304. In 1974, the Texas Court of Criminal Appeals held that

Article 32.01 had no application once an indictment is returned, although it is returned by a grand jury subsequent to the next term of court after the defendant was held to bail or detained in custody. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974). At the time Tatum was decided,

Article 28.061 provided as follows: If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial as required by

Article 32A. 02 is sustained, the court shall discharge the defendant. A discharge under this

article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction. Act of May 20,1977, 65th Leg., R.S., ch. 787, 1977 Tex. Gen. Laws 1970, 1972 (emphasis added), amended by Act of June 1,1987, 70th Leg., R.S., eh. 383, § 1,1987 Tex. Gen. Laws. 1885, amended by Act of May 12, 1997, 75th Leg., R.S., ch. 289, § 1,1997 Tex. Gen. Laws

Article 28.061 was an enforcement mechanism for Tex.Code Crim. Proc. Ann. art. 32A02 (Vernon 1989) and did not include a provision for dismissal with prejudice for a violation of

Article 32.01. Instead, the State was free to refile charges once the court dismissed the case under

Article 32.01. Thus, the defendant was provided only temporary relief until the State refiled the charges. State v. Ybarra, 942 S.W.2d 35, 38 (Tex.App.—Corpus Christi 1996, pet. granted). In 1987, the Legislature amended

Article 28.061 so that it was applicable to

Article 32.01.

Article 28.061 provided as follows: If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this

Article or

Article 82.01 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, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute. Act of June 1, 1987, 70th Leg., R.S., ch. 383, § 1, 1987 Tex. Gen. Laws. 1885 (emphasis added), amended by Act of May 12, 1997, 75 th Leg., R.S., ch. 289, § 1, 1997 Tex. Gen. Laws 1304.

Thus, according to certain case law, further prosecution is barred when a defendant is arrested or released on bail and is not indicted by the grand jury within its next term of court, unless the State can show good cause for its failure to bring a timely indictment. See Ybarra, 942 S.W.2d at 36. With the

Article 28.061 amendment intact, certain appellate courts began to hold that the Tatum rationale no longer applied. See Ex parte Lawson, No. 04-96-00265-CR, 1996 WL 735475, at *4-*5, — S.W.2d -, -(Tex.App.—San Antonio Dec.26, 1996, no pet. h.)(overruling Wilkinson v. State, 899 S.W.2d 20 (Tex.App.—San Antonio 1995, pet. ref'd));Ybarra, 942 S.W.2d at 38; Norton v. State, 918 S.W.2d 25, 28 (Tex.App.—Houston [14th Dist.] 1996, pet. granted)(basing decision on dicta in Ex parte Knight, 904 S.W.2d 722 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd)); Knight, 904 S.W.2d at 725. In dicta, the Knight court reasoned that before the application of

Article 28.061, a defendant had no right to a dismissal with prejudice for an

Article 32.01 violation and, within that legal context at that time, the Tatum holding made sense. It made sense because of the Tatum rationale: “‘it would be a useless act to dismiss the accused under the old charges where a new indictment required the defendant to be rein-carcerated.’ But, the court concluded, since Tatum preceded the 1987 amendment to

article 28.061, ... thereby giving the defendant a right to dismissal of the charges with prejudice, the rationale of Tatum no longer applies.” Holleman v. State, 945 S.W.2d 232, 235 (Tex.App.—Amarillo 1997, pet. filed)(citing Knight, 904 S.W.2d at 724-25). Conversely, other courts, including this Court, continued to follow Tatum and determined that the key and proper remedy for the accused but unindicted is to seek and obtain a ruling on an

Article 32.01 motion prior to indictment. See State v. Condran, 951 S.W.2d 178, 191-92 (Tex.App.—Dallas 1997, pet. granted)(adopting reasoning in cases decided prior to 1987 and holding

Article 32.01 complaints as moot if not ruled on prior to indictment because

Article 28.061 is unconstitutional); Holleman, 945 S.W.2d at 235-36; Uptergrove, 881 S.W.2d at 531 (stating in dicta that once indictment is returned, defendant cannot use

Article 32.01 to quash indictment, even if defendant sought dismissal prior to indictment). In Holleman, the appellate court analyzed and rejected the dicta of Knight as well as the holding in Norton, which, unlike Tatum, was not reviewed by the Court of Criminal Appeals. Holleman, 945 S.W.2d at 235. The Holle-man court stated: The reasoning of each court for disowning the Tatum holding is founded on the 1987 amendment making

article 28.061 applicable to

article 32.01; however, by its explicit language,

article 28.061 does not become applicable until “a motion to set aside an indictment ... for failure to provide a speedy trial is sustained.” (Emphasis added.) Thus,

article 28.061 has no bearing on whether an

article 32.01 motion should or should not be sustained. .... Insofar as our research has revealed, the Tatum decision is the latest decision on the subject by the Court of Criminal Appeals, and we have no authority to circumvent it. Id. at 236. In May 1997, the Texas Legislature amended

Article 28.061 and

Article 32.01, both of which are effective only for offenses occurring on or after May 26,

Article 28.061 now states: Art. 28.061. Discharge for Delay If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this

article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute. Tex.Code CRIM. Proc. ÁNN. art. § 28.061 (Vernon Supp.1998) (emphasis added).

Article 32.01 now provides: Art. 32.01.

Defendant in Custody and No Indictment Presented 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 on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180 th day after the date of commitment or admission to bail, whichever date is later.

Tex.Code Crim. Proc. Ann. art. 32.01 (Vernon Supp.1998) (emphasis added). On June 4,1997, the Texas Court of Criminal Appeals granted petitions for discretionary review on Norton and Ybarra. ANALYSIS Although the latest legislative changes arguably place a defendant in the same position he would have been before Ybarra and Norton, we must apply the law in effect when Fisk was arrested, not as we might prefer it to be. See Ex parte Pena, 955 S.W.2d 325, 327 (Tex.App.—San Antonio, 1997, no pet. h.). In the instant case, although Fisk’s appellate brief incorporates

Article 28.061 into his argument, his application for writ of habeas corpus requested relief under

Article 32.01 only, not

Article 28.061. Because we agree with the analysis made by the Holleman court quoted above, we hold that Fisk is not entitled to the relief sought because he did not seek to have his indictment set aside pursuant to

Article 28.061 for failure to provide a speedy trial, and because he did not seek and obtain relief pursuant to

Article 32.01 prior to indictment. This result is consistent with the dicta supporting our decision in Uptergrove. Fisk’s point of error is overruled. The judgment of the trial court is affirmed. . The 75 th Legislature also enacted Tex.Code Crim. Proc. Ann. art. 15.14 (Vernon Supp.1998), which specifically permits the defendant’s rearrest for the same offense if prosecution has been dismissed under

Article 32.01.