concurring.
I concur in the result.
At the habeas corpus hearing, the State contended that the dismissal of the prior complaint and information was improper because the court did not follow correct procedure. The State did not assert that the Speedy Trial Act was unconstitutional.
*886In the original opinion on this appeal, Chief Justice Cadena, writing for the majority, observed:
Were it not for the holdings in Chacon [v. State, 745 S.W.2d 377 (Tex.Crim.App. 1988) ] and Robinson [v. State, 739 S.W. 2d 795 (Tex.Crim.App.1987)], we would consider appellant’s claim in the light of such aspects of public policy as the nature of the statute and its previous application and questions of rights thought to have been vested. See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1939). In Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1955), the Texas Supreme Court recognized that equitable rights may be acquired under a statute which is thereafter declared unconstitutional. Apparently our Court of Criminal Appeals is not inclined to give much weight to considerations of public policy and equitable factors deemed relevant in Chicot County and Wichita County.
Lapasnick v. State, 751 S.W.2d 880, 881 (Tex.App.—San Antonio 1988).
We now have the benefit of two cases from the Court of Criminal Appeals that were decided after the original Lapasnick opinion.
In Reyes v. State, 753 S.W.2d 382, (Tex.Crim.App.1988), the Court of Criminal Appeals held that the Court of Appeals erred in upholding Reyes’ allegation that the trial court erred in denying his motion to dismiss for want of a speedy trial. In an opinion authored by Presiding Judge Onion and joined by three other judges with Judge Miller concurring in the result, the Court again stated, “An unconstitutional statute is void from its inception and cannot provide a basis for any right or relief.” Reyes v. State, 753 S.W.2d at 383. The Court cited numerous cases and authorities to the same effect.
On the same day this Court of Appeals delivered the opinion on appellant’s motion for rehearing en banc in this appeal, the Court of Criminal Appeals decided Stevenson v. State, 751 S.W.2d 508 (Tex.Crim. App.1988). In Stevenson, the Court of Criminal Appeals held, as in Reyes, that the Court of Appeals improperly sustained Stevenson’s claim that the trial court erroneously denied his speedy trial motion to dismiss.
In a concurring opinion, Judge Miller disagreed with the statement that the Speedy Trial Act cannot provide a basis for any right or relief since it has been declared unconstitutional. Stevenson v. State, 751 S.W.2d at 509 (Miller, J., concurring). Judge Miller continued:
[Retroactive application of the unconstitutionality of the Speedy Trial Act ... could, in certain applications, deprive a defendant of a substantial right under the Act and in effect amount to a violation of the ex post facto principles embodied in due process. Specifically I refer to a defendant who has been successful in asserting a speedy trial act claim and who has secured a final judgment towards that end.
Remembering that neither the Constitution of the United States nor of Texas prohibits or requires retroactive application of a judicial decision, see Linkletter v. Walker, 381 U.S. 618 [85 S.Ct. 1731,14 L.Ed.2d 601] (1965), in the interest of justice and to avoid the prohibition against ex post facto laws (see Art. I, § 16 of the Texas Constitution), we should apply the holding in Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987), only prospectively as to defendants whose speedy trial motions were granted by the trial court and who have secured final judgments evidencing same.
Stevenson v. State, 751 S.W.2d at 509 (Miller, J., concurring).
In a dissenting opinion, Judge Duncan, joined by Judges Teague and Campbell, agreed in general with Judge Miller that the acquisition of a substantial right is an exception to the general rule that an unconstitutional statute is void from its inception. Stevenson v. State, 751 S.W.2d at 509 (Duncan, J., dissenting).
Judge Clinton also dissented in Stevenson. In his opinion there are exceptions to *887the general rule that an unconstitutional statute cannot provide a basis for any right or relief.
One is that equitable rights may be acquired before declaration of unconstitutionality is made such that they are not lost thereafter. For example, a judgment rendered under an unconstitutional statute nevertheless retains its binding effect. [12 Tex.Jur.3d 548-549, Constitutional Law § 41]; 48 Tex.Jur.3d 399, Judgments § 351, citing King v. King, 291 S.W. 645 (Tex.Civ.App. — San Antonio 1927, writ dismissed w.o.j.)_
Stevenson v. State, 751 S.W.2d at 511 (Clinton, J., dissenting).
Thus it appears that a majority of the Court of Criminal Appeals recognizes that the general rule that an unconstitutional statute provides no basis for any right or relief is not absolute.
I would adopt Judge Miller’s and Judge Clinton’s rationales and hold that to protect equitable rights in the interest of justice and to avoid the prohibition against ex post facto laws the holding of Meshell v. State does not retroactively apply to the appellant in the instant cause.1
Accordingly, I concur with the majority opinion on appellant’s motion for rehearing en banc. The case at hand is indeed distinguishable from Robinson v. State and Chacon v. State, as the majority correctly points out.
Here, the dismissal vested appellant with equitable rights in the way of a final judgment dismissing the case against appellant with prejudice. Additionally, appellant acquired the substantial right prohibiting further prosecution of appellant for the same offense.
I agree that the habeas corpus relief sought by appellant should have been granted.
CHAPA, J., joins.
. The first case against appellant was dismissed before the decision in Meshell v. State.