dissenting.
I respectfully dissent. The majority is correct that the general rule is that where there is a valid penal statute under which a prosecution is brought, habeas corpus is not available to test the sufficiency of the charging instrument prior to trial. However, I do not agree that this should be the rule in cases such as this one.
It defies logic, in my opinion, that where there are fundamental defects in the charging instrument, i.e., the indictment or information, that such cannot be challenged at any stage in the criminal proceedings. The office of the motion to quash and its review by the appellate courts only after conviction seems to be totally inadequate to prevent the irreparable damage that a full blown trial will inflict upon an accused, especially a public official, when it is clearly possible that the conviction will be reversed on appeal. The savings of time and money to the State and to the accused, if for no other reason, is a strong argument to support a pre-trial attack.
I do not agree that these types of pre-trial habeas corpus attacks on charging instruments will open the flood gates to such writs in all criminal cases. A narrow exception would be made only where the indictment fails to allege the essential elements of the offense, and thus constitute a fundamental defect depriving the trial court of jurisdiction.
The statute under which the accused has been indicted in this cause was enacted essentially to deal with kickbacks. See Practice Commentary by Seth S. Searcy, III, and James R. Patterson of the Austin Bar, following Sec. 32.43(c) of the Penal Code. It is my view that the State has chosen the wrong statute, and that Sec. 32.43(c) was never intended by the Legislature to embrace a fact situation as herein alleged against the Attorney General.
Further, I am in disagreement with the majority that the appellant’s Motion For Leave to File a Supplemental Brief should have been summarily overruled. It has been held that in order to effectuate the cause of justice, an appellate court has the authority to permit an appellant to file an amended brief and to include therein additional grounds or points of error. This is permissible either prior to or after sub*100mission, upon such reasonable terms as it may prescribe. Stuart v. Coldwell Banker & Co., 552 S.W.2d 904 (Tex.Civ.App. 1977, writ ref’d n.r.e.). Appellant’s Motion For Leave to file a Supplemental Brief alleges that such was made necessary “to clarify issues raised by oral argument regarding jurisdiction and whether the writ of habeas corpus is an appropriate remedy in this matter.” It was further stated that the request was made to aid the Court in the administration of justice, and not for purposes of delay.
I perceive no harm, prejudice or delay which would have resulted from the filing of the amended or supplemental brief, and leave to file should have been granted.