concurring.
I concur with the majority only because appellant’s speedy trial motion was denied by the trial court in this cause. I disagree, however, with the majority’s holding that the Speedy Trial Act cannot provide a basis for any right or relief since it has been declared unconstitutional. I believe the majority’s retroactive application of the unconstitutionality of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P., (hereinafter referred to as the 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.Cr.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.
Not surprisingly, I do not agree with the majority’s holding that a defendant never acquires any rights under the Act because it was declared unconstitutional subsé-quent to the commission of his offense. The purpose of the Act was to prevent prosecutorial delay and to ensure the wheels of justice kept turning. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979), and Valadez v. State, 639 S.W.2d 941 (Tex.Cr.App.1982). The Act established a means by which a defendant may obtain dismissal of charges on which the State seeks to try him, if the State is not ready for trial within a prescribed period of time. McLean v. State, 638 S.W.2d 124 (Tex.App.—Fort Worth 1982) review refused. This dismissal of the charges is done “with prejudice”, which prevents further prosecution of the accused for that alleged crime. Thus, the accused could successfully invoke a substantial right to prohibit prosecution under the Act.
As to the purported ex post facto deprivation of this right, there are two elements that must be present for a criminal law to be ex post facto: the law must be applied retroactively and be more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The traditional definition of an ex post facto law is any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for the crime, after its commission, or which deprives a person charged with a crime of any defense available according to law at the time the act was committed. Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).
The ex post facto clause does not of its own force apply to the Judicial branch of the government. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). The Supreme Court, however, held in Bouie v. City of Columbia, 378 U.S. *510347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), that:
An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids ... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.
In Love v. Fitzharris, 311 F.Supp. 702 (U.S.Dist.Ct., N.D.Calif.), affirmed 460 F.2d 382 (9th Cir.1972), dismissed as moot 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682, the District Court interpreted that holding in Bouie, supra, to mean that the ex post facto principle in all its ramifications applied to any change in the law, whether by legislative amendment, judicial construction, or administrative reinterpretation. Although the case at bar does not involve enlargement of a criminal statute as in Bouie, supra, in situations where a substantial right such as we are dealing with here has been secured by a final judgment, I likewise would apply the ex post facto principle to a “judicial” holding.
The Supreme Court, following the definition in Beazell, supra, has held that no ex post facto violation occurs if the change affected is merely procedural and does “not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.” Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). The Supreme Court has also held, however, that the alteration of a substantial right is not merely procedural, even if the statute takes a seemingly procedural form. Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), (emphasis added). See also Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882).
The Supreme Court in Beazell, supra, recognized that there is no definitive standard to determine whether a procedural change amounts to alteration of a substantial right so as to be an ex post facto violation. The Court stated at 269 U.S. at 171, 46 S.Ct. at 69:
Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507 [508], 59 L.Ed. 905, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance, [citations omitted].
The Meshell case lead to the alteration of a substantial right of the accused and not merely of a procedure which could operate to the benefit of the accused if affirmatively invoked. I believe that this alteration is of such degree as to be an ex post facto violation when applied to defendants whose cases were dismissed, for violation of the Act, in a judgment that became final prior to this Court’s announcement that the Act is unconstitutional.
There can be no question that both of the Weaver v. Graham criteria are met in such a situation. Today the majority blanketly applies our holding in Meshell, supra, that the Speedy Trial Act is unconstitutional, retroactively. The majority follows the general rule that an unconstitutional statute is void ab initio and that therefore the Act cannot provide any basis for relief for appellant in this cause or for any other defendant who unsuccessfully asserted his rights under the Act prior to our declaration of its unconstitutionality. As previously stated, the effect of the holding in Meshell, supra, is to deny a defendant relief under the Act, which relief is dismissal of the charge against him and a bar to reprosecution, and to allow the State to proceed upon the charge originally filed against him. This change in the law accomplished in Meshell, supra, does not merely change the manner in which a trial is conducted but operates in a substantial manner to the disadvantage of the defendant. See Beazell, supra. Thus, the retroactive application of our holding in Meshell, supra, has a more onerous effect on a defendant who has secured a final dismissal under the Act.
The general rule that an unconstitutional statute is void and therefore retroactive, however, is not without exception. See e.g. Sessums v. Botts, 34 Tex. 335 (1870); King v. King, 291 S.W. 645 (Tex.Civ.App.—San Antonio 1927, writ dismissed w.o.j.); Lone Star Motor Import, Inc. v. Citroen Cars Corporation, 288 F.2d 69 (5th Cir.1961). As mentioned earlier, I would find an ex*511ception to this general rule where a defendant would be denied a substantial right secured by a final judgment. The Speedy Trial Act accorded a defendant the substantial right to end his prosecution, and if he affirmatively and successfully invoked that right it should not subsequently be denied because of our holding in Meshell, supra, that the Act is unconstitutional. The majority’s retroactivity holding would in that scenario deprive a defendant of any successfully asserted rights under the Speedy Trial Act.
Because appellant’s speedy trial motion in this cause was denied by the trial court, appellant never acquired the substantial right to have the charge against him dismissed with prejudice. Thus, there is no ex post facto violation when the holding in Meshell, supra, is applied retroactively to appellant. For this reason, I concur with the majority.