concurring.
I join the opinion authored by Presiding Judge McCormick and write only to address one point not fully discussed.
It is well established that before this Court will issue a writ of mandamus, the applicant must demonstrate two things: 1) The act sought to be compelled is purely ministerial in nature, and, 2) there is no other adequate remedy. Collins v. Kegans, at 704. In this cause, we denied relief because Relator failed to meet the second prong of the aforementioned test.
If Respondent pursues contempt proceedings as a means of effecting her order, Relator’s remedy lies in a petition for writ of habeas corpus. Although this may be an extreme measure, it, was not the only alternative previously available to the State. In such a situation, Tex.Code Crim. Proc.Ann. art. 44.01(b) entitled the State to appeal the sentence on the ground that the sentence was illegal. Therefore, the State had a less extreme remedy available to challenge Respondent’s declaration that Tex.Code Crim.Proc.Ann. art. 42.12, § 8(a)(2) was unconstitutional. As noted by Presiding Judge McCormick, writing for the majority, “[t]he Harris County District Attorney’s Office represented the State at the time of sentencing. The Assistant District Attorney did not object to the trial court’s determination that Article 42.12 was unconstitutional and did not appeal the ruling although he or she was clearly entitled to pursue that legal remedy. See Article 44.01(b), V.A.C.C.P.” Collins, at 704, n. 5.
Tex.Code Crim.Proc.Ann. art. 44.01 became effective on November 3,1987. Prior to that date this Court held that the State’s inability to appeal in a criminal case was sufficient to meet the second prong of the mandamus test. State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 481 (Tex.Cr.App.1985), and State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83 (Tex.Cr.App.1987). Sincé the State now has the ability to appeal in some instances, it appears that mandamus will not lie, if, in those instances, the State abandons its right to appeal. The abandonment of an appeal by the prosecuting attorney is an abandonment by the State. State v. Sanchez, 764 S.W.2d 920, 921 (Tex.App. —Austin 1989).
I recognize that habeas corpus may be an extreme measure, however, such an action is the only remaining remedy because the State abandoned the better remedy. I am not suggesting or encouraging Relator to disobey Respondent’s order. I am merely stating that since there is an adequate remedy now available through “habeas corpus, mandamus will not lie. Accordingly, I concur with the majority opinion. Additionally, I feel the most prudent remedy would have been for the State to have challenged Respondent’s order by an appeal pursuant to Tex.Code Crim.Proc.Ann. art. 44.01(b).
With these comments, I join the majority opinion.