dissenting.
There is no dispute that applicant had previously been charged with the identical offense of driving while intoxicated in the same county court. This cause was dismissed on written motion for discharge under the Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Pamph.Supp.1986):
On this the 30TH day of DECEMBER, 1986, came to be heard and considered the Motion of the Defendant based upon a denial of speedy trial under Section 32A.02 CCP, and the Court finding that said motion should be granted;
IT IS ACCORDINGLY ORDERED that the information against the Defendant in the above numbered and entitled cause be, and the same is hereby set aside and the prosecution ordered DISMISSED.
SIGNED this 30TH day of DECEMBER, 1986
Judge Presiding
Subsequently, the State filed a new charge of driving while intoxicated based upon the same facts. The State concedes this is the same offense.
Robinson v. State, 739 S.W.2d 795 (Tex.Crim.App.1987), as applied to the majority *882opinion, is inapposite. In that case the contention that the trial court had erred in denying the defendant’s motion to dismiss based on violation of the Speedy Trial Act was the point on appeal. The Court of Criminal Appeals held that the unconstitutional statute could not provide the basis for relief. The difference in the present case is that a final judgment of dismissal of this cause had been signed by the presiding judge in December, 1986.
Likewise Chacon v. State, 745 S.W.2d 377, (Tex.Crim.App.1988) (not yet reported) does not support the majority position. There the first case against the defendant (speeding) was in the justice court and was dismissed for violation of the Speedy Trial Act. The second case (DWI) was filed in county court, and the defendant pled dismissal of the first case in bar, TEX.CODE CRIM.PROC.ANN. art. 28.061 (Vernon Pamph.Supp.1986). In the meantime the Speedy Trial Act was declared unconstitutional. Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987).
This, too, was obviously a pending matter in Chacon, and the relief requested could not be granted because the unconstitutionality of the statute rendered the plea in bar and the motion to dismiss “moot.” Since the statute was void and without force and effect, the defendant would not be entitled to gain dismissal of the DWI information. As in Robinson, the Chacon request for relief was on a pending case. The difference in the present case is that the same cause had already been dismissed, and judgment was final.
At the time the trial court signed the judgment of dismissal, that court had the power or authority to perform the contemplated act, and its act was valid. Jurisdiction includes the power to determine either rightfully or wrongfully. See, Garcia v. Dial, 596 S.W.2d 524, 527-528 (Tex.Crim. App.1980).
In this case when the trial court dismissed the information against applicant, rightfully or wrongfully, the jurisdiction of the same court over the same cause was exhausted, and the charge filed thereafter purporting to prosecute that same cause was void and of no effect. See, id. The relief should have been granted.
En Banc.