DISSENTING OPINION ON STATE’S MOTION FOB REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge,dissenting.
On November 30,1994, we delivered a well reasoned opinion in this case in response to the State’s petition for discretionary review. At that time, four members of this Court dissented. On January 1, 1995, two judges left the Court and were replaced, by two newly elected judges. On March 29, 1995, the Court, with the newly elected judges participating, granted the State’s motion for rehearing. Today, the majority adopts the dissenting opinion and reverses our opinion on original submission.
I.
The State fails to offer any intervening authorities in its motion for rehearing nor does the State advance a new or different argument. Instead, the motion for rehearing contends nothing more than that we “erred” and relies on the same argument and authorities we rejected on original submission.1 Today’s majority, in what must be our shortest opinion ever, fails to offer any additional or intervening authority, nor does it offer any reasoning as to why our opinion on original *950submission was erroneous. The majority opinion is literally nothing more than an express adoption of the dissenting opinion without any reason or explanation for doing so.
In truth, there is no principled reason for the majority’s action. The only difference today from November 30,1994, is the composition of the Court. Many years ago, Alfred North Whitehead asked and answered the following rhetorical question:
What is morality in any given time or place? It is what the majority then and there happen to • like, and immorality is what they dislike.
Dialogues of Alfred North Whitehead (1953) prologue. This reasoning applies to the majority opinion in this case. The majority has taken the position that might-makes-right and that any result can be reached without any thought or reason simply because the majority has the power to command it. This position is dangerous in a society governed by the rule of law. In light of the majority’s action today, the law is subject to change without notice, without reason, without conscience and without forethought so long as it is the will of the majority.2
II.
What is also perplexing about this case is the State’s willingness to relinquish a right to appeal. A recitation of the procedural facts will explain. In the instant case the trial judge determined, prior to trial, that appellant’s allegedly false statements were not material and quashed that portion of the indictment. Because the trial judge’s adverse ruling was made pursuant to a motion to quash, the State had the right to appeal. Tex.Code Crim.Proc.Ann. art. 44.01.3 The State utilized that remedy and obtained a thorough and complete review of the trial judge’s ruling. State v. Rosenbaum, 858 S.W.2d 22 (Tex.App.—Houston [14th Dist.] 1993).
Everyone agrees that the question of whether a statement is material is a question of law. And questions of law must initially be resolved by the trial judge. However, in light of the majority’s actions today, trial judges will no longer have the authority to answer such questions prior to trial; such questions must now be answered during trial at a time when jeopardy has attached and the State has no right to appeal. Consequently, the majority, at the State’s request, *951rescinds an appellate remedy previously available to the State. In short, the State voluntarily relinquishes its right to appeal adverse rulings on the issue of materiality.4 Such is a foolish bargain to obtain only a very temporary victory.5
For these reasons, I dissent to the majority’s reversal of our well reasoned opinion on original submission for no reason other than its power to do so.
. In a supplemental brief, the State directs us to United States v. Gaudin, — U.S.-, 115 S.Ct. 2310, 132 L.Ed.2d 444, but Gaudin has very little to do with the issue at hand, namely whether the issue of materiality may be contested prior to trial. Instead, Gaudin dealt with whether materiality was an element of a federal offense and, therefore, required to be submitted to the jury upon completion of the trial.
The Gaudin Court held materiality was a mixed question of fact and law and an element which was required to be submitted to the jury under the Fifth and Sixth Amendments of the U.S. Constitution. Nevertheless, the Supreme Court noted that when a defendant "demurrers to the indictment" challenging the issue of materiality, the challenge raises a question of law to be resolved by the trial judge. That is precisely what occurred in the instant case. The trial judge determined as a matter of law, and the Court of Appeals agreed, the statements were not material. Therefore, the State could not proceed with its prosecution for aggravated perjury under Tex.Penal Code Ann. § 37.02 but was free to pursue the offense of perjury under Tex.Penal Code Ann. § 37.01. With this said, I join Judge Maloney's Dissenting Opinion.
. In her concurrence, Judge Keller notes that I participated in the rehearing of three cases shortly after I came to the Court. However, her recount of those cases is less than complete. For example, in County v. State, 812 S.W.2d 303 (Tex.Cr.App.1989), rehearing was granted in 1989, when I was not a member of this Court. While Judge Keller is correct that on rehearing the Court changed the result of the opinion on original submission and reversed the conviction, that is not the whole story. Before the Court granted rehearing, the Court abated the appeal and remanded the case to the trial court to correct inaccuracies in the statement of facts. Id. at 315. Following the abatement, we recognized the record on original submission was flawed with numerous inaccuracies. As Judge McCormick noted in his concurring opinion: "How such inaccuracies in the record which directly related to the main issue presented could have been so glaring and go unnoticed for so long is, indeed, appalling. Today, we reverse appellant’s conviction two years after it should have been done.” Id., 812 S.W.2d at 317. (Emphasis added.) I cannot agree with Judge Keller that we should not change our position when we learn the record on which we based that position is inaccurate.
Moreover, Judge Keller misses the point of my dissent. In each of the three cases cited by her, the complaining party advanced reasons and arguments for rehearing and the Court, on rehearing, labored to offer the bench and bar thorough and complete opinions addressing those reasons and arguments. As noted above, today’s majority opinion is nothing more than an adoption of the dissent when neither the State Prosecuting Attorney nor the new majority provides any reason, argument or authority for doing so. If Judge Keller believes we erred on original submission, she should bless the bench and bar with an opinion analyzing how we erred rather than espousing on "judicial conservatism."
. Tex.Code Crim.Proc.Ann. art. 44.01 provides the State "is entitled to appeal an order of a court ... if the order (1) dismisses an indictment, information, or complaint or any portion of an indictment, information or complaint....”
. The motion for rehearing was filed by the Honorable Robert Huttash, State Prosecuting Attorney. Jim James, the special prosecutor appointed to replace the disqualified district attorney of Washington County, did not file a motion for rehearing.