concurring.
Appellant was arrested on January 9,1994. Nine days later, he was released on bond. Because the months of April and October mark the terms of the 23rd District Court of Brazoria County,1 the State was required to obtain an indictment before the first Monday in October, ie., October 3,1994.2 The grand jury returned an indictment on October 6, 1994. Appellant sought dismissal of the charge and a bar to further prosecution. The trial court denied appellant’s request.
A trial court does not ordinarily possess the authority to dismiss a criminal case without the prosecutor’s consent.3 A statutory exception to this rule exists where the State fails to secure an indictment in a timely manner. Tex.Code Crim.Proc.Ann. art. 32.01 (Vernon 1989). The State contends the statute unconstitutionally infringes upon its prosecutorial discretion.4 Under the separation of powers doctrine, the Legislature may not abridge the exclusive prosecutorial functions of a district attorney unless expressly authorized by a constitutional provision. Meshell v. State, 739 S.W.2d 246, 254-55 (Tex.Crim.App.1987).
If there is constitutional support for Article 32.01, the State claims it must be found in a defendant’s constitutional right to a speedy trial guaranteed by Tex. Const. art. I, § 10. Four factors must be considered when deciding whether a defendant’s right to a speedy trial has been infringed: 1) the length of the delay before trial, 2) the reason for the delay, 3) the defendant’s assertion of his right to a speedy trial, and 4) any prejudice to a defendant resulting from that delay in trial. Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App.1985). Because a dismissal under Article 32.01 may be obtained without regard to the last two factors, the State contends the stat*30ute suffers from the same unconstitutional infirmity found in the Texas Speedy Trial Act. In Meshell, the court of criminal appeals concluded that Article 32A.02 was unconstitutional because it infringed upon the prosecutor’s discretion in preparing for trial without actually securing a speedy trial for the defendant. Meshell, 739 S.W.2d at 257.
Like the Speedy Trial Act, Article 32.01 does not guarantee the defendant a speedy trial, only a speedy indictment. Yet, it compels dismissal of the prosecution without regard to whether the defendant has been prejudiced by the delay or has even made a request for a speedy trial. In this regard, I believe Article 32.01 is indistinguishable from Article 32A.02. Under the rationale of Me-shell, the validity of Article 32.01 as a statutory mechanism for the enforcement of a defendant’s right to a speedy trial is suspect.
I concur in the result reached by the majority only because I believe there is another constitutional provision authorizing the legislative enactment. The Texas constitution provides that “no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury.” Tex. Const. art. I, § 10. Here appellant was “held” for ten months to answer for a criminal offense without the indictment of a grand jury.5
I would hold that the purpose of Article 32.01 is not to guarantee a speedy trial, but to enforce a defendant’s constitutional right to indictment by a grand jury. The statute interferes to some extent with the prosecutor’s discretion, but its mandate to secure an indictment before the expiration of the next term after a defendant’s arrest is not unreasonable. Moreover, the statute provides that if unusual circumstances frustrate the State’s attempts to secure an indictment within the statutory time limits, an extension may be obtained upon a showing of good cause supported by affidavit. For these reasons, I believe Article 32.01 does not improperly infringe upon the prosecutor’s discretion.
Because the State failed to comply with the terms of Article 32.01, appellant contends the prosecution should be dismissed with prejudice as required by Article 28.061. Appellant makes no claim that he was harmed by the State’s delay in obtaining the indictment. Rather, appellant seeks to escape criminal prosecution solely because the State was four days late in obtaining an indictment. While the wisdom of a statute which provides immunity from prosecution for technical violations of procedural statutes may be debated, it is well established that it is within the purview of the legislature to enact foolish statutes. Williams v. State, 707 S.W.2d 40, 44 (Tex.Crim.App.1986); Ex parte Francis, 72 Tex.Crim. 304, 165 S.W. 147, 154 (1914). With these observations, I reluctantly concur.
. Tex.Gov't Code Ann. § 24.124(b) (Vernon 1988).
. Tex.Code Crim.Proc.Ann. art. 32.01 (Vernon 1989).
. State v. Johnson, 821 S.W.2d 609, 613 (Tex.Crim.App.1991).
. The separation of powers clause is found in Tex Const. art. II, § 1:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
. A person who is subject to the conditions of a bond is constructively "restrained” in his liberty. Ex parte Robinson, 641 S.W.2d 552, 553 (Tex.Crim.App.1982).