dissenting.
The following is an opinion that constituted the position of a majority of the members of this Court when it was comprised of five judges. That majority, in light of the increased size of the Court, now comprises a minority. The current majority opinion blindly sanctions improper state action and reveals a distressing insensitivity to due process notions. Judges should not forget what they know as men, but clearly this is what the majority have done. I dissent:
“This is an appeal from a conviction under our former Penal Code for the sale of a narcotic drug.1 The trial judge assessed the appellant’s punishment at twelve years’ confinement in the Texas Department of Corrections.2
The appellant’s contentions are numerous. Due to our disposition of this case, however, we need only consider appellant’s contention that he was denied his right to compulsory process of witnesses by the State. We reverse.
The testimony adduced at trial reveals that on June 15, 1972, Officer Chevera of the San Antonio Police Department met with an informant, Jimmy Levine a/k/a Jimmy Martinez. They drove to the corner of Somerset and Stonewall in San Antonio where they parked their car. Chevera and Levine encountered the appellant - on the corner and initiated a conversation with him. During the conversation, the appellant asked Chevera if he wanted to “score” some heroin. Chevera responded that he did.
Pursuant to the appellant’s instructions, Chevera, Levine and the appellant then drove to the corner of Guadalupe and Cíbo-lo. While en route, Chevera gave the appellant $30 for the heroin. When they arrived at the corner, the appellant sighted a person identified as “El Chueco.” The appellant motioned or called for “El Chueco” to come to the car, which he did.
The appellant and “El Chueco” then had a discussion. After their discussion, “El *194Chueco” entered the car and the four men, under the direction of “El Chueco,” proceeded to the 200 block of Elvira.
When the four men arrived at the 200 block of Elvira, “El Chueco” left the car. Chevera, Levine and the appellant remained in the car. “El Chueco” subsequently returned to the car, handed an object to the appellant, and then left. The appellant then handed a balloon to Chevera. The balloon contained a substance later identified as heroin.
The appellant testified at trial that Chev-era and Levine had initiated the offense, that he was not predisposed to deliver heroin to Chevera, but that he was induced to deliver heroin to Chevera by Chevera and Levine.
Prior to trial, the appellant filed a motion for a continuance. Articles 29.03, 29.06, Vernon’s Ann.C.C.P. As grounds for the motion, the appellant alleged the absence of two material witnesses, Jimmy Levine a/k/a Jimmy Martinez, and Officer Slocum of the San Antonio Police Department. The motion stated that despite the efforts of a court-appointed private investigator, the appellant had been unable to locate either of the two witnesses; that the witnesses had been subpoenaed at their last known addresses; that the testimony of Levine would substantiate and corroborate the appellant’s anticipated defense of entrapment; that Slocum’s testimony would establish that Levine had left the jurisdiction of the court and Texas after receiving consideration from the San Antonio Police Department; and that Levine and Slocum’s testimony would demonstrate that the State had attempted to deprive the appellant of his right to compulsory process of witnesses.3 The motion was denied and neither witness was present at the trial.4 The State denied any knowledge of Levine’s whereabouts.
At a hearing on appellant’s motion for a new trial, Slocum was called by the appellant. He testified that Levine had been a paid informer for the San Antonio police for a period of approximately 90 days. During that period of time, Levine had been paid approximately $4,000.5
Prior to September 1972, Officer Slocum informed Levine of a narcotics roundup. Levine responded that he was going to leave town, but that he did not have any money. Slocum replied that he thought it was a good idea to leave town, and that he would get Levine $75 to help him. Subsequently, Slocum gave Officer Doyal of the San Antonio police $75 to deliver to Levine for eating money. The payment to Levine was authorized by Slocum’s superior, Captain Dupree.
The appellant contends that the State’s action in paying Levine $75 to assist him in leaving town denied the appellant his right to compulsory process of witnesses. In Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976), and White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974), we addressed similar contentions and held adversely to the appellant’s position. However, “[a] past mistake on the part of the Court is not a justification for committing the same mistake again.” Perez v. State, 537 S.W.2d 455, 458 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Douglas).
In Sigard, the dissenting opinion stated:
“The majority’s apparent reliance, in reaching its decision, on the amount of the money given the missing witness by the State surprises me. Instead of asking whether the State’s action was improper, the majority asks how much money was *195paid. Is the Court today holding that State action that successfully contributes to the disappearance of a material defense witness presents reversible error only if the State paid the entire bill? How much money paid to the witness would have changed the disposition of this case?
“The case should not turn on how much money was paid but, instead, on whether the action was successful and, if so, whether the State participated at all. The appropriate analysis for disposition of the issue is that set out in White v. State, supra, in the majority opinion on original submission. When a defendant asserts denial of compulsory process on the basis of State action rendering the witness unavailable, the relevant inquiries are (1) materiality of the witness, (2) timely pursuit by the defense, (3) knowledge of the materiality of the witness at the time of the State’s action, and (4) improper action attributable to the State contributing to the witness’ unavailability.”
We are convinced that this fourfold test constitutes the proper inquiry. Of course, none of these factors by itself is either a necessary or sufficient condition to a finding that a defendant has been deprived of his right to compulsory process of witnesses. Rather, they are related factors which, in our opinion, must be considered together in a balancing process.
First, it does appear that Levine was a material witness. In the present case,6 Levine could have either sustained or refuted the appellant’s allegations of entrapment. In fact, Levine was a material fact witness. James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).
Second, the appellant timely pursued the identity and location of the paid informer Levine. In July 1975, the appellant requested a court-appointed private detective to assist in the preparation of the defense. The trial judge granted this motion on July 18, 1975. The appellant’s trial counsel instructed the private investigator to attempt to ascertain the identity of the informer. During August, 1975, the private investigator tentatively identified the informer as Jimmy Levine a/k/a Jimmy Martinez. On September 2, 1975, the State revealed the names and last known addresses of Jimmy Levine and Officer Slocum. Subpoenas were issued for Levine and Slocum on September 2, 1975. On September 3, 1975, the appellant’s motion for continuance was filed. After a hearing was held on the motion, it was denied by the trial judge. The trial on the merits began on September 3,1975. Although it can be argued that the appellant should have issued citation for Levine at an earlier date, the record reflects that he did so as soon as the State revealed Levine and Slocum’s names and last known addresses. The appellant timely pursued Levine’s presence at trial.
Third, the State was well aware of Levine’s materiality in September 1972. Slocum testified that he was aware that Levine was a participant in at least a hundred cases.7 More importantly, Slocum testified that Levine and Officer Chevera were explained the law of entrapment. It is inconceivable that when Slocum told Levine that the narcotic roundup would occur he was not aware that Levine might be a material witness to some of the cases. Indeed, Slocum acknowledged that Levine, or any informant for that matter, might be able to testify and refute false allegations by an undercover policeman. Therefore, the record reflects that Slocum knew that Levine was a material witness when he told Levine he would give him the money.
Finally, the State did engage in improper action contributing to the witness’ unavailability. The record does not reveal that any agent of the State instructed Levine to leave town for the purpose of concealing *196evidence and depriving the appellant of the right to compulsory process. The record, however, does reflect that Slocum knew Levine was an active participant in making cases with Chevera, and that despite this knowledge, he actively participated in facilitating and encouraging Levine’s departure. This participation included informing Levine of the. narcotic roundup, Slocum’s approval of Levine’s plan to leave San Antonio, Slocum’s promise of money to assist in Levine’s departure, and the delivery of the money by Officer Doyal to Levine.8 Moreover, the State’s failure to obtain the intended future address of Levine, or even inquire into his intentions as to future residences, constitutes improper action by omission attributable to the State.
Considering all four factors above, it is clear that the appellant was denied his right to compulsory process under Article I, Section 10 of the Texas Constitution and the Sixth Amendment of the Constitution of the United States.9 Accordingly, we overrule our previous holdings in White v. State, supra, and Sigard v. State, supra.”
The judgment should be reversed and the cause remanded.
ODOM and PHILLIPS, JJ., join in this dissent.. Article 725b, Section 2(a), Vernon’s Ann.P.C.
. Trial was before a jury, but the appellant declined to exercise his option to have the jury assess punishment. Article 37.07(2)(b), Vernon’s Ann.C.C.P.
. The motion for continuance satisfied the requirements of Articles 29.03, 29.06, and 29.08, Vernon’s Ann.C.C.P.
. The appellant’s motion for continuance and the testimony at a hearing on the motion reveal that citation was not issued for Levine and Slocum until September 2, 1975, the day the State revealed their involvement in the case. On September 3, 1975, the day that the trial on the merits began, the appellant filed his sworn motion for continuance.
The testimony further reflects that the appellant, through the effort of his court-appointed private investigator, learned of Levine’s identity sometime in August, 1975.
.Slocum testified that Levine was paid less than $50 per case.
. See White v. State, supra, and Sigard v. State, supra, for similar instances of Levine’s materiality as a witness.
. According to Officer Doyal’s testimony, Levine was paid only $25 per case. Thus, if Slocum’s testimony that Levine was paid over $4,000 was correct, then Levine was involved in over 160 cases.
. We would add that if the State wanted an informant out of town solely for reasons of the informant’s safety, it is not an onerous burden to require the State to obtain the informant’s intended future address. Moreover, in our original opinion in White v. State, supra at 548, we stated:
‘Whether Slocum’s sole intent was for Levine’s safety (which is not contended) is irrelevant. Just as the State’s interest in confidentiality of an informer must yield in a proper case, despite its interest in encouraging and protecting him, so too must the informer be made available in a proper case. Other means are available for the protection of a material witness than sending him out of town and rendering him totally unavailable to either party.’
. What we said in our original opinion in White v. State, supra at 548, is equally applicable here:
“What was here the case . . . was participation by the State in action which rendered a known material witness unavailable to appellant for the exercise of his constitutional right ‘to present his own witnesses to establish a defense,’ Washington v. Texas [388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019], supra. It is not the action of the witness acting alone, but the State’s participation which constitutes the harm and requires reversal.”