ON APPELLANT’S MOTION FOR REHEARING EN BANC
BUTTS, Justice.This is an appeal from an order denying habeas corpus relief. Appellant asserted by habeas corpus in the county court at law and now on appeal that his second prosecution for driving while intoxicated is barred because the prior complaint and information charging the identical offense had been dismissed by the trial court. The dismissal was based on the State’s failure to comply with the Speedy Trial Act, TEX. CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1988), as alleged in appellant’s motion.
According to the complaint and information filed in both prosecutions, the DWI offense occurred on March 8, 1986. Appellant filed his motion to dismiss in November, 1986. The then county court at law judge dismissed the case on December 30, 1986, for violation of the Speedy Trial Act. On February 9, 1987, the State filed the second complaint and information, charging the same offense.
The State argues that the declaration of unconstitutionality of the Speedy Trial Act and article 28.0611 of the Texas Code of Criminal Procedure [Meshell v. State, 739 S.W.2d 246, 255-58 (Tex.Crim.App.1987)] deprives the appellant of any right to rely on these statutes as a bar to the instant prosecution even though the same offense is charged. It is correct that Robinson v. State, 739 S.W.2d 795, 797 (Tex.Crim.App.*8831987) stated the rule that an unconstitutional statute is void from its inception and cannot provide a basis for any right or relief. In Chacon v. State, 745 S.W.2d 377, 378 (Tex.Crim.App.1988) it was reiterated that “[gjenerally a cause, issue or proposition is or becomes moot when it does not, or ceases to, rest on any existing fact or right,” citing 5 TEX.JUR.3d 206, Appellate Review § 519 (1980).
In Robinson the point of error argued on appeal was that the trial court erred in not dismissing that case because of a violation of the Speedy Trial Act. The point had become moot. In Chacon, the first case against that defendant (speeding) had been dismissed in the justice court for a Speedy Trial Act violation. The second case (DWI) was filed in the county court, and the defendant moved for dismissal, pleading that dismissal of the speeding case constituted a bar to the second prosecution, TEX.CODE CRIM.PROC.ANN. art. 28.061. In the meantime the Act was declared unconstitutional in Meshell.
In both Robinson and Chacon the relief requested on appeal was a pending matter, i.e. still in existence or extant. See, Chacon v. State, supra at 378. But in those cases it was impossible for the appellate court or the trial court to grant effectual relief. This is because, if error were found, the trial court could not hear the plea in bar and grant relief since its authority to do so had been removed. The statute was “without force and effect.” It had expired.
The important difference in the instant case is that the same cause (same offense) had already been dismissed and that judgment was final. Under the law in effect at that time, the discharge constituted a bar to further prosecution for the offense discharged. See, art. 28.061, supra. The instant action is not an appeal of a pending cause, i.e. a non-final conviction. In other words, it is not a matter upon which the trial court could grant relief on reversal and remand. 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, 527-28 (Tex.Crim.App.1980).
In this case the trial court dismissed the information against appellant. Once the judgment became final, the jurisdiction of the same court over the same cause (the same offense) was exhausted. The charge filed thereafter purporting to prosecute that same cause was void and of no effect. Art. 28.061, supra. The subsequent declaration of unconstitutionality of the Speedy Trial Act had no effect on the finality of the judgment.
The plea in bar is valid. Habeas corpus relief should have been granted. The judgment is reversed and the cause is ordered dismissed.
ESQUIVEL and CHAPA, JJ., concur in result.. Article 28.061, in effect at the time of the dismissal, provided:
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 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.