dissenting.
It is difficult to dignify the events of today with a written reply. The temptation is great not to so “honor” the five who have finally found a vehicle by which to negate what has come to be the law most abhorred by the prosecutors of this State. But a watershed such as this merits note, if for no other reason than that it presents a graphic public demonstration of the “philosophy over law” concept of decision-making indulged in by the five who today wreak such havoc on the integrity of the judicial appellate system. This display is even more graphic given that they have sought such a vehicle for several years now, and this is the best they could do. Be that as it may, ...
Article II, § 1 of the Texas Constitution provides:
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.
Article V, § 1 of the Texas Constitution provides in part:
The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.
Article V, § 21 of the Texas Constitution provides in part:
The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; ....
The majority initially errs by finding that the office of the county attorney, and by implication any other State prosecutor, is vested with judicial power subject to protection under the separation of powers clause. It is clear from Art. V, § 1, that the judicial power of this State is vested in only those courts named in the constitutional provision, which does not include the county attorney. The majority’s conclusion that Art. V, § 21, supra, confers judicial power on the county attorney defies the specific wording of the constitutional provision.
Moreover, such an implication would support other equally unacceptable conclusions. For instance, the sentence preceding the above quoted portion of Art. V, § 21, supra, states: “In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next election.” Under the majority’s reasoning, this sentence would confer “judicial” power on the Commissioners Court subject to separation of powers protection. It is doubtful that the framers intended such a result.
Also, the cases that deal with Art. V, § 21, supra, concern encroachment by the attorney general or some other representative, upon the exclusive authority of the county attorney to represent the State. See generally Tex.Const. Art. V, § 21 (Vernon 1955), at casenotes 7 and 8. These cases do not address the issues by reference to Art. II, § 1 separation of powers, but rather resolve any disputes by referring to some specific power enumerated in the Constitution.
For instance, in State v. Moore, 57 Tex. 307, 314 (1882) (cited by the majority, at 254), the Attorney General brought an action against the Travis County Attorney (Moore) to compel him to pay into the state treasury money he collected from a defaulting tax collector and his sureties. *271Moore contended that under the State Constitution he was entitled to prosecute and control such cases as representative of the State, and that the county was entitled to retain the money collected. The Court found that the Attorney General was empowered to initiate and prosecute suits for money due to the State, in any county of the State where there was no county or district attorney. The Court also found that the law did not delegate to the county attorney the authority to represent the State in all cases, since Article IV, § 22 of the Texas Constitution permitted the Attorney General to “perform such other duties as may be required by law.” The Court stated:
“It must be presumed that the constitution, in selecting the depositaries of a given power, unless it is otherwise expressed, intended that the depositary should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the power.”
Thus, the trial court could not divest the county attorney of his authority to represent the State because the Constitution specifically delegated that power to him, not because of some perceived separation of powers problem. In other words, the judiciary was as powerless to substitute the Attorney General for the county attorney as the Attorney General was, though the judiciary be part of the same “branch” (according to the majority) of government as the county attorney. By express wording the judicial power of the State is vested in specifically enumerated courts, not in the county attorneys. Thus, county attorneys are not entitled to separation of powers protection. Be that as it may _
Having determined that the county attorney is entitled to separation of powers protection, and in order to find a separation of powers issue, the majority next finds a power held by the county attorney subject to abrogation by some other branch. This is accomplished by initially considering the above quoted portion of Art. V, § 21, of the Constitution. The majority finds that the stated “duty to represent” is actually a “power” protected from infringement by other departments because of the separation of powers clause contained in Art. II, § 1 of the Texas Constitution.
In order to support this proposition, two Texas cases are cited, the first of which, Moore, supra, held that when the Constitution confers a power upon a specific depositary, that depositary is assumed to have the exclusive authority to exercise that power, unless of course, an express statement to the contrary is shown. The second case, Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052 (1905), was similar to the Moore holding.
In Brady, supra, the Court held that although Art. 5, § 21, supra, gave the county attorney the authority to represent the State, the county attorney was not empowered to do so in all cases. Since Art. IV, § 22 of the Texas Constitution expressly stated that the legislature could authorize the Attorney General to “perform such other duties as may be required by law,” such an express provision enabled the legislature to allow the Attorney General to represent the State in some cases.
From these cases, the majority finds that the power of the county attorney to represent the State may not be infringed upon absent an express constitutional provision to that effect. Thus, this power of the county attorney is entitled to protection under the separation of powers clause.
The majority refers to several other cases which confirm or support this proposition: Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261 (1944) (the Legislature may not withdraw certain duties specifically imposed upon one department, nor abridge them, nor interfere with that department’s right to exercise them unless the Constitution so provides); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375 (1918) (the Constitution lodges with the county attorneys the duty of representing the State in all cases); Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922) (the Legislature may not restrict the power of the district and county attorneys to represent the State); and Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 167 S.W.2d 580 (Tex.Civ. *272App.Austin 1942), aff’d, 141 Tex. 379, 172 S.W.2d 972 (1943) (the authority to bring and maintain actions in the courts to enforce the rights of the State is vested by the Constitution exclusively in the Attorney General and the district and county attorneys, and the legislature is without the authority to divest that power or delegate it to others).
The majority then notes that the duties of county attorneys relative to representing the State are not enumerated in the Constitution. The county attorneys’ primary function, however, is to prosecute the pleas of the State in criminal matters. The majority then states that:
“[a]n obvious corollary to a district or county attorney’s duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district attorney’s exclusive prosecutorial function, unless authorized by an express constitutional provision.”
Maj. op. at 254.
For several reasons the majority’s position that the power to represent, and its attendant protection from infringement by the legislature, may be equated with the discretion to prepare cases is unacceptable. First, the Constitution is clear and explicit in its statement of what power is to be conferred upon the county attorney: the power to represent. There is no statement concerning preparation of cases, or discretion in the preparation of those cases. Thus, the majority’s characterization is not supported by the specific language of the Constitution.
Second, the cases cited by the majority do not support its contention. Those cases all concerned the authority of the Attorney General or district or county attorney to be the attorney (to the exclusion of all others) representing the State in various kinds of cases. There is no discussion of other powers, only of that to represent or prosecute cases on behalf of the State. Thus, those cases do not support the concept that the protected power to represent includes the equally protected discretion to prepare cases.
Last, simply because a power is specified in the Constitution, and is therefore subject to protection (either as an enumerated power as in Moore, supra, or under the separation of powers clause) does not imply that any incident to that power is also accorded the same protection. The discretion to prepare cases is not essential to the county attorney’s authority to plead a case on behalf of the State in a court of law. Thus, it should not be deemed subject to the same scrutiny from interference accorded to the ability of the county attorney to appear in court to represent the State’s interests.
No case has ever expanded the power of the county attorney under Art. V, § 21, supra, to include function other than that he have the authority to represent the State. For all of the above reasons, the majority opinion fails to formulate a power subject to protection from interference by the legislature. Absent an articulable power, the enumerated powers doctrine of Moore, supra, and the separation of powers clause of Art. II, § 1, supra, are irrelevant. Be that as it may ...
After finding that the county attorney’s discretion to prepare for trial is a power to be accorded protection under the separation of powers clause, the majority next finds that the Speedy Trial Act effects an impermissible encroachment on that discretion to prepare for trial. First, reference is made to Article V, § 25, of the Texas Constitution, which allows the Legislature to regulate the means, manner and mode of a defendant’s assertion of rights in court. Next, the majority states that before the preceding section of the Constitution is applicable, there must be a defendant’s right for which the Legislature may provide procedural guidelines. Third, the majority determines that although the Speedy Trial Act is an attempt by the Legislature to enact procedural regulations regarding a defendant’s right to a speedy trial, the Act fails to actually accomplish this objective since it merely directs the time in which a county attorney may prepare for trial, and fails to account for the four-factor test for *273whether a defendant’s federal right to a speedy trial has been broached (as set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Based upon these findings, the majority concludes that the Act perpetrates an impermissible encroachment upon the power of the county attorney.
For a change, at least the majority’s first two observations are correct: the legislature is permitted to regulate with procedural enactments the means, manner and mode of a defendant’s assertion of rights in court, and necessary to that authorization is the existence of some right to assert. I cannot, however, accept the majority’s remaining contentions and conclusion.
The Speedy Trial Act does more than merely speed the prosecutor’s preparation and ultimate readiness for trial: it actually serves to provide the defendant with a means by which to obtain a speedy trial. Article 32A.01, V.A.C.C.P., titled Trial Priorities, mandates that the trial judge give priority to criminal trials over civil trials. This Article thereby addresses one of the two barriers to the obtainment of a speedy trial — that of the order or priority in the trial court’s docket. Article 32A.02, V.A.C. C.P., titled Time Limitations, requires that the prosecutor be ready for trial within a certain time limit, and thereby removes the other barrier to the obtainment of a speedy trial — that of the readiness of the prosecutor to go to trial. This observation is clearly supported by the legislative committee hearings referred to in footnote 17 of the majority opinion. Thus, a defendant is accorded an opportunity to obtain a speedy trial through the procedural mechanism of giving precedence to criminal cases and requiring the State to be ready for trial within set time limits as established by the Speedy Trial Act.
The majority’s position that since the Act fails to include the four-prong test in Barker, supra, it fails to effectuate a procedural enactment of the means, manner or mode of the defendant’s assertion of a right is also untenable. There is nothing in the Barker opinion which indicates that its factors are to be used to gauge the adequacy of a state’s law regarding a speedy trial. Rather, the opinion is clearly intended to be used in a flexible manner in situations where such a statute does not exist. The United States Supreme Court states:
“Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example impossible to determine with precision when the right has been denied.”
Id., 92 S.Ct. at 2187. Later in the opinion, the Court continues:
“Perhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience in protecting the right. The first suggestion is that we hold that the constitution requires a criminal defendant to be offered a trial within a specified time period. The result of such a ruling would have the virtue of clarifying when the right is infringed and of simplifying courts’ application of it. Recognizing this, some legislatures have enacted laws, and some courts have adopted procedural rules which more narrowly define the right. ...
But such a result would require this Court to engage in legislative rulemak-ing activity, rather than in the adjudicative process to which we should confine our efforts. ... The States, of course,' are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.”
Id., 92 S.Ct. at 2188. [Emphasis added.]
When considering the issues in Barker, supra, the United States Supreme Court was not faced with the validity of some procedural rule enacting the federal right to a speedy trial, but was rather in a position to construe that right without the benefit of specific legislation. Clearly, the Barker opinion gives no support for the contention that any procedural enactment of the speedy trial right must incorporate the four-factor test set out to guide the Supreme Court when it considered the right without legislative guidance. Actual*274ly, the opinion militates against such a holding. Thus, whether the Speedy Trial Act adequately addresses the four factors set out in the Barker opinion is wholly irrelevant to the determination of the viability of the Act vis-a-vis the separation of powers clause. The Barker discussion simply has no place in this analysis. Be that as it may....
The final link in the majority’s chain, which finds that the prosecutor’s discretion to prepare for trial is unduly restricted by the Speedy Trial Act is also unacceptable. The Speedy Trial Act does not run unless the prosecutor either causes or allows it to run, and then it runs only as long as the prosecutor causes or allows it to run.
A criminal action commences, for purposes of the Speedy Trial Act, when:
1. an indictment, information, or complaint against the defendant is filed in court, unless
2. prior to the filing the defendant is detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which case the criminal action commences when the defendant is arrested.
Article 32A.02, supra.
. With regard to the first event stated above, the prosecutor is in control: he or she chooses when to present a case to the grand jury to seek an indictment, or when to file the information or complaint. With regard to the second event stated above, the prosecutor rarely decides when a person is to be arrested. After arrest, and prior to the filing of an indictment or information, however, the prosecutor, as the representative of the State, has considerable control over whether a defendant will be released from jail without restriction as opposed to “detained in custody or released on bond”. This control is subject only to approval of the local judiciary, a fellow member of the judicial branch of government under the majority’s theory. Of course if he is released from jail without having to post bond then the Act ceases to run as surely as if there were no indictment filed in court.
Since the prosecutor maintains discretion in determining, to a large part, when the actual time limits are to toll, the prosecutor is not deprived of discretion under the provisions of the Act. The prosecutor can either cause the Act to run and be ready within the time limits of the Act, or cause it to cease running by releasing the restraint (by indictment, incarceration, etc.) on the defendant. If the prosecutor is deprived of this “power” of discretion in preparing for trial, it is only when a judge will not release a defendant from jail without bond at the prosecutor’s request, as set forth above. Be that as it may_
Contrary to the majority’s findings, the Speedy Trial Act is a proper exercise of the Legislature’s power to regulate the means, manner and mode of assertion of a defendant’s right to a speedy trial. Initially, the executive and judiciary have only those powers granted to them by the Constitution or inherent to such powers; the legislature’s powers, however, are plenary, limited only by restrictions stated in or necessarily stemming from the Constitution. See Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560 (Tex. 1963) and In re House Bill No. 537 of the Thirty-eighth Legislature, 113 Tex. 367, 256 S.W. 573 (1923). Thus, the starting point in any discussion of separation of those powers must be that the legislature is presumed to have the power to enact a statute absent an express or necessarily implied prohibition.
Moreover, the legislature is free to exercise its powers in any manner it sees fit; this Court does not sit in judgment of the wisdom of its actions. As was stated in Ferrantello v. State, 158 Tex.Cr.R. 471, 256 S.W.2d 587 (1952):
“It is wise for the courts to remember, when passing upon any question concerning the power of the Legislature, that they might, to cite a fanciful illustration, meet tomorrow and abolish the offense of murder and that such act would be constitutional. The question before the *275courts is the power of the Legislature and not the wisdom of its acts.”
Id. at 591. Thus, as long as the Speedy-Trial Act was effectuated through a valid power of the Legislature, whether it accords a defendant a speedy trial in the most efficient way is irrelevant. If the Legislature has the power to enact the Act, then we may not overturn it simply because there may be a better or more thorough way to guarantee a speedy trial.
Given that the legislature’s power to enact laws is plenary; given that we may not focus upon the wisdom of any particular act; given that the legislature has the power to regulate the means, manner and mode of a defendant’s assertion of rights in a court under Art. V, § 25 of the Texas Constitution; answering the State’s ground of error that the Act usurps the power of the prosecutor-qua-member of the judiciary is simple.
Initially: What specific power (either under an enumeration of power or separation of power theory) would the legislature be accused of usurping anyway? The Constitution speaks in terms of the county attorney “representing the State.” In no way does the Act interfere with the prosecutor’s power to plea on behalf of the State regarding criminal matters. Thus, there is no direct assault upon the prosecutor’s power incurred by the Speedy Trial Act. Moreover, since the Act does not deprive a prosecutor of his or her discretion to bring a case, and merely states when the time limits will begin to run against the State, there is no encroachment upon an incidental power of the prosecutor protected by the Constitution.
Assuming that there is some power attached to the office of county attorney, the complained-of usurpation is permissible. Certainly the defendant has a right to a speedy trial under the Texas Constitution. Also, as stated before, the Speedy Trial Act does provide the defendant with a speedy trial. There is, therefore, a clear nexus between the right sought to be enacted and enactment of that right.1 Since there is a right guaranteed by the Constitution, and since the Act effectuates that right to some extent, the Legislature has not acted beyond the scope of its power.
Last and perhaps most important, if we declare the Speedy Trial Act unconstitutional under separation of powers in the manner presented in the majority opinion, what act of the legislature regulating the prosecution is ever safe from our attack? Do we not ourselves trespass into the legislative sphere by so holding, and effect a violation of the legislature’s power to pass or repeal laws? Do we not ourselves trespass into the executive sphere by so holding, and effect a violation of the executive’s power to veto or approve legislation?
But alas, who is there to tell this Court when we have so transgressed, or to correct our most egregious non-federal mistakes? Under our structure of government, no one. It is this aspect which ultimately pronounces today’s action by the majority so totally reprehensible.
“The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
James Madison, “Federalist No. 47,” The Federalist, supra at p. 336.
*276The Speedy Trial Act simply does not encroach upon any “power” of the prosecutor to an impermissible extent. There is certainly no justification or cause to find that the Act is unconstitutional as a violation of the separations of powers clause.2
*279To the majority’s failure to follow our own Constitution and easelaw and give due deference and consideration to the powers of our other branches of government, and to the setting of such frightful precedent, I *280dissent with an overwhelming sense of foreboding.
TEAGUE and DUNCAN JJ., join.. The majority seems to apply the federal “rational relationship” test to judge the sufficiency of the Speedy Trial Act. That test applies when a state seeks to regulate a right conferred by the United States Constitution not considered fundamental in nature. In such an instance, the statute enacted need only bear a rational relationship to a legitimate state purpose. Compare the different test applicable when a state seeks to regulate a constitutionally protected right considered to be fundamental, then the statute must be the least intrusive means by which the right may be regulated, and the State must have a compelling State interest in enacting the legislation, i.e., the statute must he able to withstand strict scrutiny by the courts. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986); Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 75 L.Ed. 2d 879 (1983); and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)
Since the statute involved in the case before the Court is a State law enacting a State right, neither of the preceding tests apply.
. In another argument advanced by the State, the Speedy Trial Act is alleged to violate the separation of powers clause between the judiciary and the legislature. This contention is also an unacceptable basis for finding the Act unconstitutional.
The origin of the doctrine of separation of powers may be traced to the writings of Montesquieu. See Montesquieu’s Spirit of Laws (Collier’s Ed., p. 151). The United States Constitution also establishes a federal government organized into three branches, but lacks a specific expression of the doctrine of separation of powers. See The Constitution of the State of Texas: An Annotated and Comparative Analysis, Vol. I, ed. George Braden (Austin: Texas Legislative Council, 1977), p. 94. The 1836 Constitution of the Republic of Texas worded its expression simply: “The powers of this government shall be divided into three departments, viz: legislative, executive, and judicial, which shall remain forever separate and distinct.” (Art. I, Sec. 1). This provision was included in the 1845 Texas Constitution, but was moved and altered to its present wording, and express exceptions were added.
The prohibition against one department encroaching upon the powers of another is not, however, applied absolutely. "The theory of absolute separation of powers of government is no longer an accepted canon among political scientists and is inconsistent with the most recent formulations of the doctrine of separation of powers.” 16 CJ.S. Constitutional Law § 112 (1955). Moreover, ”[i]t should be noted that the powers of government actually are not divided so neatly as the theory of separation of powers would imply. ... In short, the doctrine of separation of powers should be taken seriously but not enforced too rigidly." "Citizen’s Guide to the Texas Constitution”, Prepared for the Texas Advisory Commission on Intergovernmental Relations by the Institute for Urban Studies, University of Houston, 1972, p. 28.
A review of Texas cases dealing with separation of powers between the judiciary and the legislature reveals a two-step analysis. First, the specific power of each department is determined; second, the manner in which that power is exercised is examined. There is no bright line rule which may be used to determine whether one department's exercise of power im-permissibly encroaches upon another department's power so that the former is “exercising [a] power” of the latter under Art. II, § 1, of the Texas Constitution, supra. We may, however, be guided by a sense of propriety gleaned from cases discussing the subject.
Initially, "judicial power” is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933) at 644, citing Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed.2d 246 (1911). This Court has defined "judicial power” to embrace the power to hear facts, the power to decide the issues of fact raised by the pleadings, the power to decide the questions of law involved, the power to enter a judgment on the facts found based upon the law, and the power to execute the judgment or sentence. Kelley v. State, 676 S.W.2d 104 (Tex.Cr.App.1984) at 107, and cases cited therein.
Included in the powers of the judiciary is the power to consider the acts of the legislative branch, and if found to be contrary to the Constitution, declare those acts invalid. This power was anticipated at least as far back as Alexander Hamilton when he asserted that:
“Limitations ... [on the legislature’s authority] can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges [in the Constitution] would amount to nothing.”
Alexander Hamilton, "Federalist No. 78, The Judges as Guardians of the Constitution,” The Federalist, ed. Benjamin Fletcher Wright (Cambridge: Harvard University Press, Belknap Press, 1961), p. 491. As always in a democracy, along with power comes commensurate responsibility. In Lastro v. State, 3 Tex.Cr.R. 363 (1878), at 372-373, the Court stated:
“There is no question of the power of the courts to pronounce unconstitutional acts invalid, for this power results from the duty of the courts to give effect to the laws, of which the Constitution is the highest, which could not be administered at all if nullified at the will or by the acts of the Legislature. But it is equally well-settled that this power is not to be exercised in doubtful cases, but a just deference for the legislative department enjoins upon the courts the duty to respect its will, unless the act is clearly inconsistent with the fundamental law, which all members of the several departments are sworn to obey." (emphasis supplied).
The power of the legislature includes the power to make, alter and repeal laws, when such power is not expressly or impliedly forbidden by other provisions of the State Constitution. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946). This Court has held that the legislature may define crimes and prescribe punishments. State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973). We have further held that the legislature has the power to regulate the assertion of individual rights in the courts. In Johnson v. State, 42 Tex.Cr.R. 87, 58 S.W. 60, at 61 (1900), the Court stated:
"It has never been successfully controverted, and never really seriously denied, until late, *277that the legislature of the state has not ample and complete authority to pass any law regulating the means, manner, and mode of assertion of any of appellant's rights in the court; and so long as this means, manner, and mode be adequate for the assertion of either statutory or constitutional rights, just so long are the statutes and remedies provided by law constitutional.”
The legislature also has ”[t]he power to reform the court system to speed the process of trial and adjudication_” “The Impact of the Texas Constitution on the Legislature,” Institute of Urban Studies, University of Houston (1973), p. 7.
After the specific powers involved are identified, we must determine whether the exercise of those powers by one department creates an impermissible encroachment on the powers of another department. Applying this analysis to several Texas cases discussing separation of powers provides substantial guidance for deciding whether the Speedy Trial Act effects an impermissible encroachment by the Legislature upon the judiciary.
In Ex parte Youngblood, 94 Tex.Cr.R. 330, 251 S.W. 509 (1923), the defendant was adjudged guilty of contempt by an investigatory committee of the House of Representatives. At that time, Art. 5517, V.A.C.S., Acts 1907, provided that a legislative investigation committee could fine or have imprisoned any witness for his failure or refusal to obey the directions of the committee and answer all pertinent questions propounded. The defendant contended that this statute violated Art. II, Sec. 1 of the Texas Constitution since the legislature was exercising judicial powers.
This Court noted that the Legislature had an express grant of authority to punish persons held in contempt under in Art. III., § 15 of the Texas Constitution, which states “Each House may punish, by imprisonment, during its sessions, any person not a member, for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not, at any one time, exceed forty-eight hours." Such authority is judicial in nature. The exercise of that authority, however, was subject to Art. II, Sec. 1. This Court stated: "The right to punish ... [the person] would be limited by the Constitution in the extent and in the manner of its exercise and could not be exerted by a committee.” Ex parte Youngblood, supra, 251 S.W. at 512. Since the Constitution did not specifically permit the Legislature to delegate its contempt punishment authority, the statute authorizing a judgment of contempt made by the committee was held to be unconstitutional and the defendant was ordered discharged.
Applying the preceding two-step analysis to this case explains the result reached by the Court. The judicial power involved was the power to render a judgment of contempt; the legislative power was an “expressly provided” for exception in Art. Ill, § 15 of the Texas Constitution which permitted the legislature to exercise the judicial power and render such a judgment. Since the Constitution did not specifically permit the legislature to delegate its contempt judgment authority, the legislative committee had encroached excessively upon the powers of the judiciary by rendering a judgment of contempt.
In 1952, this Court had occasion to again examine the Texas doctrine of separation of powers. In Ferrantello v. State, 158 Tex.Cr.R. 471, 256 S.W.2d 587 (1952), a defendant was convicted under Art. 5429a, § 3, V.A.C.S., for failing to respond to questions propounded to him by a legislative investigative committee. The facts of the case were as follow.
A legislative committee was investigating gambling violations in Texas and subpoenaed the defendant to testify at a time when an indictment alleging gambling violations had been filed against him in Dallas County. Pursuant to the authority of Art. 5429a, supra, the committee had guaranteed the defendant transactional immunity covering any gambling information he may relate. Despite the grant of immunity, the defendant refused to testify. As directed by the statute, his refusal to testify was certified to the District Attorney, and the defendant was convicted in a Travis County District court. On appeal, the defendant contended that once the Dallas district court acquired jurisdiction over him through the indictment, any effort on the part of the Legislature to grant him immunity would constitute a violation of the separation of powers set forth in the Texas Constitution.
This Court conceded that the defendant’s proposition appealed to the “natural desire of a judge to guard the prerogatives of his branch of government," but added "we can assert no greater power than the Constitution grants us.” Fer-rantello, supra, 256 S.W. at 591. The Court overruled the defendant’s ground of error since Art. 5429a, supra, did not affect the constitutional jurisdiction of the district court, but would merely have provided the defendant a defense at any subsequent trial. The statute was found constitutional and the defendant’s conviction was affirmed.
Let me pause to point out that in exactly the same manner, the Speedy Trial Act does nothing more than provide the defendant with a defense to prosecution. The scope of the prohibition against prosecution is exactly the same as the scope of the transactional immunity grant. In fact, in enacting the Speedy Trial Act scheme, the Legislature could not have followed the Fer-rantello case more closely. In both cases, the judge must, by legislative decree, dismiss the indictment upon finding that the defense exists, and in both cases further prosecution is barred for the case in question and any other arising out of the transaction.
Returning to Ferrantello, supra, application of the two-step analysis anticipates the result. In this case, the judicial power involved was the authority to exercise and retain criminal jurisdiction over a defendant. The legislative power involved was the authority to investigate crimi*278nal matters and grant transactional immunity to witnesses, thus precluding prosecution for the matters brought forth. Encroachment was not found: the Legislature was not itself dismissing the prosecution; rather, the court retained jurisdiction over the defendant, who had a defense to further prosecution.
We may postulate that had the portion of Art. 5429a, Sec. 3 regarding transactional immunity allowed the Legislature itself to dismiss the defendant’s indictment, an encroachment may very well have been found. This is because while it is most often proper for the legislature to set up the conditions which, if found by the judiciary to have occurred, will mandate a particular judgment with a particular result, separation of powers is offended when the legislature itself seeks to enter that judgment. The same offending action takes place when a legislature seeks to modify, impair, vacate or reverse an existing judgment. 16 CJ.S. Constitutional Law § 128, et seq.
The Texas Supreme Court has also had occasion to examine the doctrine of separation of powers. In Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025 (1934), Miller had obtained a judgment against Langever, but when the property was sold, the proceeds of the sale were insufficient to satisfy the entire debt. Under the law at the time the judgment was entered, Miller had a valid and unsatisfied deficiency judgment for the rest of the debt. After the judgment was entered, the Legislature passed a law which effectively canceled all deficiency judgments by depriving the courts of jurisdiction to enforce them. The new law was to apply to all deficiency judgments, including judgments previously rendered. Among other challenges, Miller contended on appeal that the new law violated Art. II of the Texas Constitution.
The Supreme Court examined the doctrine of separation of powers and held that the Legislature was without authority to pass a statute which would render a previously valid court decree unenforceable. The Court stated, ‘‘We have not found in the books a plainer violation of this constitutional provision than that shown in the act before us,” id. 76 S.W. at 1035, then declared the new law unconstitutional.
In Langever, supra, the judicial power attendant to rendering and enforcing valid judgments was considered along with the Legislature’s power to create laws. The clearest case of legislative encroachment on judicial power was found: the Legislature had exceeded its authority by passing a law which deprived the courts of jurisdiction to enforce prior valid judgments. Although the Legislature was authorized to declare what the law would be henceforth, it had no authority to nullify previous acts of the judiciary. Thus, such a law infringed upon the powers of the judiciary granted by the Texas Constitution.
In Government Services Ins. Underwriters v. Jones, 368 S.W.2d 560 (Tex.1963), Senator Franklin Spears sought a legislative continuance in a case pending in district court in Travis County. The trial court overruled the motion for continuance and held that the mandatory nature of Art. 2168a, V.A.C.S., which provided for legislative continuances, rendered the statute unconstitutional under Art. II, § 1, of the Texas Constitution. The defendants went to the Supreme Court seeking an order of mandamus directing the judge to grant the continuance.
The two-step analysis in this case involved the judiciary’s power to exercise discretion in disposing of motions before it and the Legislature’s power to have its members in attendance to pass laws. The Supreme Court noted that it is often difficult to determine whether a particular function is judicial or legislative in nature, stating:
"In determining whether or not the exercise of a power by one branch of government is an unauthorized invasion of the realm or jurisdiction of another branch, we must consider the relationship of the various governmental departments as set forth and defined in the Texas Constitution, for that which is permitted by the Constitution cannot be unconstitutional. The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution." (emphasis supplied).
Id. at 563. The Court further noted that this statute did in fact encroach upon the judiciary:
“A mandatory continuance by legislative enactment will undoubtedly interfere somewhat with the operations of the judicial department of government.”
Id. at 564-5. Based largely on previous cases which held the statute constitutional, however, the Supreme Court held that the mandatory continuance was not, on balance, an undue burden on the judiciary and did not violate the separation of powers provision of the Texas Constitution.
It is important to emphasize here that in Government Services, supra, the Legislature required the judiciary to rule a certain way on a motion upon finding certain conditions precedent. Following the majority’s reasoning (such as it is) in the case at bar, one would expect this to be held a classic violation of separation of powers. Not all encroachments by one branch of government into the affairs of another, however, amounts to a violation of separation of powers. The truth is that it is and always has been quite normal for the legislature to mandate a particular ruling once a judge finds certain conditions are met.
With these cases in mind, the Speedy Trial Act may now be addressed with regard to separation of powers vis-a-vis the judiciary. First, we must determine which powers are involved. The judicial power means the "power of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision." Morrow, supra.
Next, we determine what power of the legislature is involved. Article V, § 25 of the Texas Constitution gives the Supreme Court the power *279to make rules of procedure not inconsistent with the laws of the State. Thus, although the statute relinquishes full rule-making power to the Court, the ultimate power still lies with the legislature. Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex.1971); Government Services, supra at 563. This power extends to criminal courts as well. Thus the legislature is empowered by the Constitution to make laws regarding the procedures to be used in Texas courts. See 12 TexJur.3d, Constitutional Law § 65, p. 581. Nor will anyone seriously dispute the power of the legislature to make statutes defining, describing, expressing or effectuating the rights guaranteed citizens by the Constitution (including Art. I, § 10 of the Texas Constitution: "the accused shall have a speedy public trial”). Johnson, supra. For instance, Art. 38.-22, V.A.C.C.P., is equal in scope to the provisions against self-incrimination present in the Texas Constitution.
Additionally, what is not stated in the Constitution is sometimes as important as what is stated. There is nothing in the Texas Constitution which prohibits the legislature from passing laws regarding criminal procedures or a defendant’s right to a speedy trial. Furthermore, there is nothing in the Constitution which mandates that once the courts have jurisdiction over a defendant, the legislature may not pass any laws which direct the course of the courts’ actions in any way. Thus, the Constitution does not indirectly or by implication prohibit passage of procedural or substantive rights statutes. This is important because, as again stated by the Texas Supreme Court:
“The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution itself.”
Government Services, supra, at 563.
Once the relevant powers are identified, we may now determine whether the specific exercise of the legislature’s power to pass statutes by its enactment of the Speedy Trial Act encroaches upon the power of the judiciary to decide and pronounce judgments and to carry them into effect.
As previously stated, that the statute may be outcome determinative does not necessarily imply an impermissible encroachment. The statute involved in Ferrantello, supra, allowing the Legislature itself to grant transactional immunity to a defendant even if he were presently being tried for the transaction, was certainly outcome determinative since the judge would have had to dismiss the case if the defendant raised his grant of transactional immunity; however, no encroachment was found.
Additionally, the legislature has, in passing statutes affecting defendants’ rights, dictated judicial rulings through outcome determinative statutes at least as far back as the Code of Criminal Procedure of 1856. Article 602 of that Code provided:
"Whenever it appears in the record in any criminal action, taken to the Supreme Court upon appeal by the defendant, that the instructions given to the jury were verbal, (except when so given by consent in a case of a misdemeanor) or that the District Judge has departed from any of the requirements of the eight preceding Articles, the judgment shall be reversed, provided it appears from the record that the defendant excepted to the order or action of the Court at the time of trial.” (emphasis supplied)
Such statutes, which forbade the courts from reversing cases for charge error unless an objection was raised in the trial court but required courts to reverse if an objection was so raised, mandated a judicial ruling and were unquestionably outcome determinative. But they were always upheld by the courts against whatever challenge that they “transgress the high powers of the Court of Criminal Appeals.” Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69 (Tex.Cr.App. 1900). As stated by Judge Henderson in Johnson, supra at 70, when commenting on the history of the code provision:
“This was an affirmative statute, and was construed by the courts as mandatory, requiring the reversal if the error was excepted to at the time, whether material or not. It was further held, and very properly, that this was not a limitation on the power of the court; _”
If the legislative action in Johnson, identical as it is to the action the majority complains of today, violated the separation of powers doctrine, the courts surely would have halted the practice long ago.
Moreover, with reference to other previously discussed cases, the Speedy Trial Act does not affect the jurisdiction of the courts as set forth by the Texas Constitution. Cf. Langever, supra. The Legislature is not itself discharging the defendant, which just might effect a usurpation of the courts’ power to determine cases. Cf. Ex parte Youngblood, supra. Nor is it unconstitutional because it requires the courts to act in a particular way under certain circumstances. See Government Services, Ferrantello and Johnson, supra.
The sense of propriety gleaned for the analysis of the Texas cases discussing separation of powers compels the conclusion that the Texas Speedy Trial Act cannot be considered unconstitutional as an impermissible encroachment by the Leglisature upon the powers of the judiciary. The courts have the power to decide cases and pronounce judgments, but this power is subject to the Legislature's power to pass statutes affecting procedures and defendants’ rights, and dictating outcomes once judicial decisions are made.