dissenting.
I dissent to dismissing the State’s petition for discretionary review as improvidently granted. The issue presented before this Court is whether former Article 32.01 of the Code of Criminal Procedure, prior to its 1997 amendment, is unconstitutional.
A majority of this Court apparently believes this issue is no longer worth reviewing in light of the 1997 legislative amendments to Article 32.01 and Article 28.061 of the Texas Code of Criminal Procedure.1 I disagree. If former Article 32.01 violates the separation of powers provision of Article II, Section 1 of the Texas Constitution, then current Article 32.01 suffers the same constitutional defect. It makes no difference whether the indictment is dismissed “with prejudice” under one provision or “without prejudice” under the other provision. And, I have some serious reservations about whether former and current Article 32.01 passes constitutional muster pursuant to this Court’s decision in Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987). I would address the merits of the issue presented in this case.
I dissent.
. Under current law, dismissal of an indictment under Article 32.01 is no longer "with prejudice.” That is because in 1997 the Legislature amended former Article 28.061 so as to make it inapplicable to Article 32.01.