dissenting.
Relator1 was indicted for the instant offense on March 10, 1989, and has not yet received a trial. Respondent’s only excuse is docket congestion. However, in Chapman v. Evans, 744 S.W.2d 133, 137 (Tex.Cr.App.1988), we held: “... overcrowded trial dockets alone cannot justify the diminution of the criminal defendant’s right to speedy trial.” Therefore, the only issue in this case is the appropriate remedy to redress this constitutional violation. Relator contends he is entitled to either mandamus or habeas relief. The majority and concurring opinions hold a direct appeal is the appropriate remedy. For the following reasons, I believe the majority’s position is unsound and that, depending on the type of relief requested, the appropriate remedy is either mandamus or habeas corpus.
I. Appeal
Both the majority and concurrence deny relief under the mistaken assumption that relator has an adequate remedy at law, namely, appeal following the denial of a motion to dismiss for want of a speedy trial and conviction. Ante, majority op. at 593 and; concurring op. at 595. However, both opinions fail to take into account that relator may never receive a trial. Neither opinion suggests that relator will ever be tried. And, after being held for nine years awaiting trial, there is no reason to assume he ever will be. So long as there is no trial, relator has no remedy. Under the majority and concurring opinion, relator could be held forever without a trial. Therefore, the reasoning of the majority demonstrates again its partisan agenda of reaching results which benefit the State. The reasoning of the concurrence is evidence of too little thought.
II. Mandamus
I can see two instances that involve the right to a speedy trial. The first instance is where the defendant contends he is about to lose his right to present a defense if trial does not commence within a specified time. In such an instance, I would hold mandamus is the appropriate vehicle to obtain a speedy trial. For support of this position, one need look no further than Chapman v. Evans, 744 S.W.2d 133 (Tex.Cr.App.1988), where we ordered the trial judge to set the ease for trial or a writ of mandamus would have issued. Id., 744 S.W.2d at 138.
The majority makes only passing reference to Chapman. Ante at 593, n. 7. There the majority boldly states that Chapman is distinguishable but the majority never makes a distinction. On the other hand, Judge Meyers concurrence recognizes Chapman is not distinguishable so he labels Chapman as “simply bad law.” Ante at 593. Judge Meyers believes there is a conflict between Chapman and Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Cr.App.1987), where we held a trial judge has a ministerial duty to rule on a motion but cannot be compelled to rule correctly on the motion. But there is no conflict. Once a trial court is vested with juris*596diction over a case, the trial judge has a ministerial duty to try that case. Therefore, when we order that a case be set for trial, we are not affecting a discretionary act. To follow Judge Meyers’ logic to its natural conclusion, we eould never order a trial judge to do anything that would affect the trial court’s docket. In short, we could not order the trial judge to hold a belated Batson hearing, nor conduct an evidentiary hearing on a writ application, or anything else. We would be powerless.
Therefore, I would hold that if a defendant establishes he is about to lose his right to present a defense if the trial does not commence within a specified time, mandamus is the appropriate vehicle to obtain a speedy trial.
III. Habeas Corpus
The second instance to involve the right to speedy trial is presented when one claims his right to a speedy trial has been violated. This is the situation presented by relator.
In this instance, mandamus is not appropriate because in order to determine whether there has been a violation, the four factors of Barker v. Wingo, 407 U.S. 514, 580, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), must be balanced. Because a balancing act is accomplished by the exercise of judgment, it is discretionary and not ministerial. Nevertheless, there must be an adequate remedy to redress this constitutional violation. I would hold the appropriate remedy is pretrial habe-as corpus.
The majority considers, and summarily dismisses, the remedy of habeas corpus because they have already concluded relator has an adequate remedy at law. Ante at 593. For his part, Judge Meyers does not discuss the appropriateness of habeas corpus. I believe this remedy deserves a bit more attention.
Pretrial habeas is provided for at Tex.Code Crim. Proc. Ann., arts. 11.08 and 11.07, § 2. It has been used to assert violations of fundamental constitutional or jurisdictional matters. In this context, we have held one may use pretrial habeas corpus to assert claims of constitutional violations with respect to double jeopardy and bail. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Cr.App.1982) (double jeopardy); Ex parte Keller, 595 S.W.2d 531, 532-533 (Tex.Cr.App.1980) (bail). The rationale for this is simple, if pretrial habeas were not available, those constitutional protections would be effectively undermined. This rationale necessarily applies to the right of speedy trial.2
Therefore, I would hold that the vehicle to claim a violation of the constitutional right to speedy trial is by pretrial habeas corpus. Since relator has established his constitutional right to a speedy trial has been violated, I would grant habeas corpus relief and order the instant prosecution dismissed. Because the majority opinion fails to do so, I dissent.
. The party seeking relief in this case refers to himself as "relator-applicant” because he is requesting either mandamus relief or habeas corpus relief. For convenience, we refer to him as "relator.”
. I am aware in Ex parte Delbert, 582 S.W.2d 145, 146 (Tex.Cr.App.1979), this Court held a defendant may not use pretrial habeas corpus to assert a constitutional right to a speedy trial, or due process, because an adequate remedy at law is accorded by appeal. However, Delbert was overruled sub silentio when this Court held pretrial habeas is an appropriate mechanism to assert constitutional violations in regard to both double jeopardy and bail.