concurring in part and dissenting in part on appellants petition for discretionary review.
The majority finds from an examination of the record that appellant was arrested on April 16, 1981, and on that date the “criminal action” commenced for purposes of Article 32A.02, § 2(a), the Speedy Trial Act. It further found that the State filed a written announcement of ready on August 14, 1981, after the indictment was returned on August 11, 1981. The majority concluded that the written announcement of ready was within the 120 days for the State to be ready for the trial of a felony under Article 32A.02, § 1(1), V.A.C.C.P. In fact, August 14 was the 120th day from April 16, 1981. The majority further observed that at the hearing on the motion to dismiss the indictment the State declared its readiness then and at all times since the filing of the indictment on August 11,1981. This declaration was supported by testimony at the hearing by the prosecutor. The majority concluded this oral testimony showed that the State had been ready prior to the written announcement and that the 117 days between April 16 and August 11,1986 were within the 120 limit of the Speedy Trial Act.
This is at odds with the conclusion reached by the Court of Appeals that the arrest occurred on April 15, 1981 and that written announcement of ready was not made until August 14, 1981, 121 days after the “criminal action” had commenced. The Court of Appeals determined that the delay in the return of the indictment for at least one week was attributable to the appellant and caused by his conduct in trying to resolve the matters informally. Finding that this was an exceptional circumstance under Article 32A.02, § 4(10), supra, the court found the State’s announcement of ready was timely excluding the time of “at least one week”.
The majority, in concluding, stated:
“Because the State’s announcement of readiness on August 11, fell within the Act’s limit, the State did not have the burden to exclude any time. The Court of Appeals erred in deciding that the State had to exclude time and did so by showing time spent in a related civil lawsuit matter. The exclusion issue was not raised or necessary to their determination. Rather, appellant had the burden to rebut the State’s showing of readiness. Ex parte Hilliard, supra [687 S.W.2d 316 (Tex.Cr.App.1985) ].” (Emphasis supplied.)
I agree that under the circumstances the State did not have the burden to exclude any time and that the exclusive issue was not raised. Therefore, I dissent to the totally unnecessary discussion of and conclusion that the appellant’s conduct in attempting to resolve the matter informally, *659etc., was not an “exceptional circumstance.” If the exclusion issue was not raised and unnecessary to the determination of the Court of Appeals, why, just why does this Court reach that issue? It may well be that, having accepted the erroneous computation of time by the Court of Appeals, we granted the petition for discretionary review to determine whether the “exceptional circumstance” was a valid one. That, however, is absolutely no reason for an unnecessary discussion of an issue which we now say was never raised even in the Court of Appeals. I dissent to that portion of the opinion.
McCORMICK and WHITE, JJ., join this opinion.