DISSENTING OPINION TO DENIAL OF APPELLANT’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING
TEAGUE, Judge,dissenting.
I concur in what Judge Clinton said in his dissenting opinion in the panel decision in this cause. The appellate record not only fails to support the State’s argument that the period of time prior to the August 15, 1979, service of the indictment should be excluded from Speedy Trial Act calculations under Art. 32A.02, § 4, V.A.C.C.P., but instead the record affirmatively shows that none of the exclusionary provisions of that section of the Act are applicable to the circumstances and facts of this cause.
The Act first requires the State to indicate its readiness for trial within 120 days of the commencement of a felony criminal action. Art. 32A.02, § 1(1); Pate v. State, 592 S.W.2d 620 (1980).
When the State has done so, the burden shifts to the defendant to refute the State’s claim of readiness. Pate, supra; Fraire v. State, 588 S.W.2d 789 (1979). The panel decision in this cause correctly held that appellant successfully refuted the State’s claims of “ready” on January 15, 1979, and April 16, 1979, since the State had neither subpoenaed its witnesses nor served a copy of the indictment on the incarcerated appellant.
The burden was then on the State “to show why it was not ready within the 120 days so as to bring it within any of the exceptions to the Speedy Trial Act.” Pate, supra, at 621.
*417The State simply did not sustain its burden of proof as to the exclusionary provisions of the Act in this cause. In fact, it called no witnesses and presented no evidence during the brief hearing on appellant’s motion, apparently assuming that its claims of “ready” had been, and would be, upheld as sufficient compliance with the Act. To date, its position has been wrongfully sustained. The facts and circumstances used to support the majority panel decision are gleaned from appellant’s testimony, the jail record introduced by appellant, and the testimony of the prosecutor representing the State at the hearing, which was adduced by appellant in his successful effort to refute the State’s prior announcements of “ready.” However, though those facts and circumstances are at least equally supportive of appellant’s contentions on appeal, they do not demonstrate, by even a preponderance of the evidence, the applicability of any of the Sec. 4 exclusionary provisions of the Speedy Trial Act.
Taking those provisions one by one, it appears to me that the majority panel decision had good reason to avoid determining the applicability of subsection 4(4)(B), upon which the State particularly relies, since there was no evidence adduced indicating the State’s “diligence” in attempting to locate the supposedly “absent” appellant, as required by that exception. In fact no evidence was offered to show the slightest effort to locate appellant prior to the August 15, 1979, service of the indictment.
Turning then to subsection 4(4)(A), I note that it requires the State to prove three elements in order for it to be excused from the time constraints of the Act: (1) that a period of delay resulted from the “absence” of the defendant (2) because his location was unknown, and (3) he was attempting to avoid apprehension or prosecution. The prosecutor who testified at the hearing on appellant’s motion, Hon. Gerald Fry, never testified that appellant was “absent” or that his location was unknown, as required by the statute. Those facts were apparently inferred from the following testimony of the prosecutor, which was adduced by appellant in his questioning concerning the State’s claim of “readiness”:
“Q. [Defense Attorney] Does your file reflect whether or not the State had subpoenaed any witnesses for either of those two dates [January 15, 1979, and April 16, 1979]?
“A. My understanding is that the defendant was not arrested on those dates and we showed the case as a nonarrest case, but we announced that we would be ready, subject to serving witnesses if the defendant was arrested.”
“Q. All right, sir. But what I’m saying, you didn’t schedule within the time limit from the date of the indictment, you didn’t schedule a trial date during that time, did you?
“A. The defendant was not in custody. We could not schedule a trial date.
“Q. Do you have any dispute with the defendant’s testimony that he was in jail from December 2nd until the current day — last October 2nd? Do you have any dispute with that testimony that he’s just given?
“A. I have no personal knowledge of whether he was in jail or not.
“Q. You know, of course, that he was brought in from the jail this morning?
“A. I have no personal knowledge of that either.
“Q. Do you have any evidence to show that he was out in the free world during that time?
“A. No, I don’t.
“Q. You do know that he has an alias of Bob Moore or some such name; is that not true?
“A. I have no knowledge of that other than his testimony today.” (Emphasis supplied.)
The emphasized portions of the above-quoted testimony serve only to prove that Fry had no personal knowledge whatsoever of whether the defendant was “absent” of *418whether his “location [was] unknown” to the State, as required by Art. 32A.02, § 4(4), V.A.C.C.P. This testimony did not satisfy the burden of proof imposed on the State by that statute. Contrast it with the testimony of appellant:
“Q. All right. What name were you logged in into the jail?
“A. Under Robert Moore.
“Q. Is Robert Moore an alias that you have used previously?
“A. No, sir.
“Q. All right. Did they know that you were also Charles Walton Hamilton. “A. Yes, sir.”
“Q. All right. So you were transferred to the city courts to face a charge of walking off from the city compound under the name Charles Walton Hamilton?
“A. Yes, sir.
“Q. And the Sheriff of Harris County brought you in the city court; is that correct?
“A. Yes, sir.
“Q. And then they received you back into the Harris County jail?
“Q. Yes.
“THE COURT: Put some date on that. “Q. Could you give us the approximate date of this event?
“A. January 9, 1979.” (Emphasis supplied.)
Appellant’s testimony that the law enforcement authorities of Harris County knew at the time he was “booked” into jail that he was in fact Charles Walton Hamilton was corroborated by the jail record which first lists his name as “Robert Moore,” but in the place for “AKA” (also known as) appellations, also lists “HAMILTON CHARLES WALTER REAL NAME.” The State, though it had the burden of proof of showing that appellant was “absent,” and his location was unknown, offered no evidence which would support its suggestion on appeal that appellant’s real name was typed onto the jail record at some time subsequent to the service of the indictment on appellant on August 15,1979, and I see no reason to presume this fact to appellant’s detriment.
Appellant’s testimony was also corroborated by a document entitled “Information Concerning Setting of Bail,” which was filed in the trial court on February 16,1979, and which was included in the appellate record.
The formal complaint, which initiated the instant criminal prosecution, was filed in Harris County Justice Court, Precinct No. 1, on December 12, 1978, by Assistant District Attorney James Jordan, under justice court Cause No. 351921. Jordan also signed an instrument entitled “Information Concerning Setting of Bail,” see supra, which displays the same cause number. The instrument notes appellant’s past and pending criminal cases, recommends that bail be set at $40,000, and most significantly, lists the defendant’s name as “Charles Walton Hamilton AKA Robert Moore,” with both names apparently written by the same hand at the same time — presumably prosecutor Jordan’s.1
On January 9, 1979, appellant was indicted by a Harris County grand jury. Though reference was made to the justice court cause number mentioned above, appellant’s “Robert Moore” alias was dropped in the indictment. The record indicates that the *419papers in the justice court were transmitted to the grand jury and were subsequently filed in the district court file of the cause for which appellant was indicted, i. e., the instant case on appeal. See fn. 1, supra.
It is therefore apparent to me that the State did not “discover” on August 15,1979, that appellant had been in jail since the date of the indictment; rather, we are presented with a situation where the right hand did not know what the left hand was doing. While Fry testified at the hearing on appellant’s motion to dismiss the indictment that he had no personal knowledge of appellant’s whereabouts prior to August 15, 1979, he did not, and apparently could not, testify that no one in the district attorney’s office was aware that appellant had been booked into the jail as “Robert Moore,” an alias he had not used before.
I would therefore hold that the State failed to prove the applicability of the exclusionary provisions of subsection 4(4). It is difficult to understand how one can ever be “absent,” within the meaning of the statute, while residing in the jail of the situs where a complaint is filed and an indictment returned. In the alternative, if we construe the statutory term “absent” to encompass this situation, the State never proved by even a preponderance of the evidence that appellant’s location was unknown, as required by subsection 4(4); all it proved was that the particular prosecutor in attendance at the hearing on appellant’s motion had no personal knowledge of appellant’s whereabouts prior to August 15,1979.
Although this should have ended our inquiry into the applicability of the Speedy Trial Act exclusionary provisions, the majority panel decision tenaciously continued its analysis, and held that appellant, by giving a new alias when he was booked into jail on December 2, 1978, was “attempting to avoid apprehension or prosecution” in the instant case, within the meaning of Art. 32A.02, § 4(4)(A), V.A.C.C.P.
Appellant could not have been avoiding “apprehension” when he was being booked into the jail on December 2,1978, as he had already been apprehended, albeit for a different offense. And I cannot reasonably infer from this record that appellant was attempting to avoid prosecution in this cause, when the complaint was not even filed until December 12, 1978. One may search the record in vain for the slightest showing that appellant was expecting or anticipating prosecution for this offense. There are many reasons one might use an alias, e. g., to avoid service in unrelated civil matters, because of delinquent bills or child support payments, or to avoid losing a job because of having been arrested. It is only pure speculation and inference to hold that appellant used an alias on December 2, 1978, in an effort to avoid a prosecution that had not even commenced. The State had the burden of proof on this issue, and again, failed to prove by even a preponderance of the evidence the applicability of Art. 32A.02, § 4(4)(A), V.A.C.C.P.
Finally, it follows from the foregoing discussion that we are not presented with a “reasonable period of delay that is justified by exceptional circumstances.” Art. 32A.02, § 4(10), V.A.C.C.P. Use of this “catch-all” provision should be limited to situations which the Legislature could not reasonably have foreseen and included among the specific exceptions in Sec. 4. Ordunez v. Bean, 579 S.W.2d 911, 918 (1979) (Clinton, J., concurring), citing United States v. Favaloro, 493 F.2d 623 (2nd Cir. 1974). The delay in bringing this case to trial, on the other hand, constitutes a nearly textbook example of bureaucratic inefficiency, which is clearly not a source of delay with which the drafters of the Speedy Trial Act were unfamiliar. In fact, one might surmise that such administrative foul-ups were one of the intended targets of the Act. Nevertheless, bureaucratic inefficiency is not a listed exception in the Act.
The holding of the majority panel decision effectively says to a prosecutor that any honest mistake which results in delay of trial will be excused. The result is to transform the Act into a set of advisory guidelines concerning time constraints on prosecutorial action, and to render the provision requiring dismissal of indictments a *420nearly dead letter. The Speedy Trial Act is, in short, being emasculated and rendered meaningless by the majority panel decision and by this Court’s decision on Appellant’s Motion for Leave to File Motion for Rehearing.
Because the State failed to meet its burden of proof of showing an exception under Sec. 4 of Art. 32A.02, V.A.C.C.P., the judgment should be reversed, the indictment dismissed, and appellant discharged under the terms of Art. 28.061, V.A.C.C.P. To the overruling of appellant’s motion for leave to file motion for rehearing, I respectfully dissent.
ROBERTS and CLINTON, JJ., join.. We observe that the record on appeal contains certain documents, although apparently not “noticed” by any of the parties below, that were presumably in the trial court’s file when the hearing on appellant’s motion to dismiss the indictment was held. Although the record on appeal reflects that the complaint was filed in the Justice of the Peace Court on December 12, 1978, this instrument was then apparently sent to the Harris County District Clerk’s office on the same day for filing, for it bears a District Clerk file mark date of December 12, 1978. However, it was then sent “DIRECT TO GRAND JURY” on February 14, 1979. Eventually it was again filed with the District Clerk on February 16, 1979. The document entitled “Information Concerning Setting of Bail,” signed by Jordan, reflects a file mark of the District Clerk showing it was also filed on February 16, 1979. All of these documents reflect the district court and the cause number of the indictment under which the cause was finally tried.