I respectfully dissent. If this were a case coming to us as one of first impression, I would agree with my fellow justices
*Page 898 that the trial court did not abuse its discretion in denying appellant's application for a writ of habeas corpus seeking release on a personal bond. However, the Court of Criminal Appeals in my view has pre-empted us from this option by its opinion in Jones v. State, 803 S.W.2d 712 (Tex.Crim.App. 1991). In Jones, the court held that a defendant charged with murder and capital murder was entitled to be released under article 17.151, either on personal bond or by reducing the amount of the bail required because the State had not announced or shown that it was ready within the 90-day period specified in the article. Jones at 719.
Two things are clear in this case: (1) the state incarcerated defendant past the 90 days without an indictment, and without announcing or showing that it was ready; and (2) he was declared indigent by the trial court which granted him a free transcript and statement of facts on appeal. Under these circumstances, the court of criminal appeals has mandated that he is entitled to be released on personal bond or on minimal bail that he can afford. Id. Ex parte Kernahan, 657 S.W.2d 433, 434 (Tex.Crim.App. 1983); see also Ex parteMcNeil, 772 S.W.2d 488 (Tex.App. — Houston [1st Dist.] 1989, no pet.). The prosecutor's rather general explanation that she delayed seeking an indictment past 90 days because the defendant wanted to testify before the grand jury does not, without more, excuse her failure to seek an indictment within 90 days.
The majority opinion omits any discussion of Jones or Kernahan, notwithstanding the fact that by these opinions the Court of Criminal Appeals has mandated that absent certain exceptions, which are not applicable here, a person accused of a felony must be released either on personal bond or by reducing the amount of bail required if the state is not ready within 90 days from the day he is jailed. Here, the accused was not indicted within 90 days, and the state did not announce ready, nor show that it was ready for trial. In accordance with these cases, I would remand to the habeas court for further proceedings regarding appellant's release on personal bond or minimal bail he can afford.