dissenting.
It is not necessary to quarrel with the majority’s conclusion that the December 30, 1986, dismissal of cause no. 362,520, in which appellant was first charged with driving while intoxicated on March 8, 1986, was a final valid order. There can be no doubt that, according to Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App.1980), following such dismissal, there was “no case, pending against [appellant] and, accordingly, no jurisdiction remaining in the dismissing court.” This holding furnished the basis for the dispositive holding in Gar-da that after such dismissal “the jurisdiction of the [dismissing] court was exhausted and the order entered thereafter purporting to reinstate that cause was void ...” Id.
Garda is inapplicable here. It merely stands for the rule that a criminal case, once having been dismissed, may not be reinstated.
The majority’s conclusion that the dismissal of a criminal case precludes the filing of a new accusatory pleading charging the same offense is incorrect and finds no support in Garda. That case does not even *884intimate that the dismissal barred the filing of a new case.
The majority’s conclusion that the dismissal of case no. 362,520 barred the subsequent filing of a new case, no. 383,906, charging appellant with the same offense as that charged in no. 362,502 is reached by equating “same cause” with “same offense.” The majority opinion asserts: “In this case when the trial court dismissed the information against appellant ... the jurisdiction of the same court over the same cause (the same offense) was exhausted. The charge filed thereafter purporting to prosecute that same charge was void....” The statement that the dismissal of cause no. 362,520 terminated the jurisdiction of the dismissing court over that cause finds support in Garcia. But the assertion that such dismissal exhausted the jurisdiction of that court over the “same offense” is not only puzzling but entirely gratuitous. It finds no support in Garcia, which speaks only of the dismissal of accusatory pleadings. When an indictment or information is dismissed, the result is the termination of the case which is based on such indictment or information. This is made clear by the statement in Garcia that after the indictment or information is dismissed “there is ... no case pending against the accused....” 596 S.W.2d at 528. Indictments, informations and cases are frequently dismissed. I know of no case in which a court purported to dismiss an offense.
The unqualified assertion that the dismissal of an indictment or information bars a subsequent prosecution for the same offense based on a new accusatory pleading cannot be defended. Subject to some exceptions not applicable in this case, the dismissal of an indictment or information prior to the time that jeopardy has attached is no bar to a subsequent prosecution for the same offense under a new charging instrument. Saucier v. State, 156 Tex. Crim. 301, 235 S.W.2d 903, 913 (1950), cert. denied, 341 U.S. 949, 71 S.Ct. 1016, 95 L.Ed. 1372 (1951); Friemel v. State, 148 Tex.Crim. 454, 188 S.W.2d 175, 176 (1945); Martinez v. State, 646 S.W.2d 483, 485 (Tex.App.—Houston [1st Dist.] 1982, no pet.).
There is another reason why the dismissal of cause no. 362,520 does not standing alone, bar a subsequent prosecution for the same offense under a new accusatory pleading. In this case the dismissal was ordered in response to appellant’s motion to dismiss because of a failure to comply with the requirement of the Speedy Trial Act. It is well settled that where the dismissal or other early termination of the proceedings is based on defendant’s motion, the granting of such motion does not prevent a subsequent prosecution for the same offense. In such cases, subsequent prosecution for the same offense does not present “a picture of an all-powerful State relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt” determined in that proceeding. In such cases we have a defendant “who chooses to avoid a conviction” in that proceeding not because the prosecution cannot make out a case against him, but because of his claim that the case against him must fail even though the prosecution “might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 2196-97, 57 L.Ed.2d 65 (1978).
The rule recognized in Scott is applied in Texas even in cases where the premature termination of the prosecution at defendant’s request takes place after jeopardy has attached. In Bowles v. State, 606 S.W.2d 875, 876 (Tex.Crim.App.1980), defendant claimed that the trial court had erroneously overruled his plea of former jeopardy. His contention was based on the fact that at a prior trial the jury was discharged because it was unable to reach a verdict. This claim was rejected because the record showed that the jury was discharged at the request of defendant. The Court, relying on Rios v. State, 557 S.W.2d 87 (Tex.Crim.App.1977), held that since the premature termination of the proceeding was at defendant’s request the guarantee against double jeopardy was not violated.
*885Under the reasoning found in Scott, Bowles, and Rios, the dismissal of cause no. 362,502 at appellant’s request did not bar a subsequent prosecution. Any attempted distinction based on the fact that in this case we haye a dismissal rather than a declaration of a mistrial must fail. In Durrough v. State, 620 S.W.2d 134, 137 (Tex.Crim.App.1981) (en banc), the Court held that the dismissal of a case because of a defective indictment in response to defendant’s motion did not bar a subsequent prosecution for the same offense under a new indictment.
It must be concluded that the sole basis for holding that the dismissal of cause no. 362,520 at appellant’s request in this case must be found in TEX.CODE CRIM.PROC. ANN. art. 28.061 (Vernon Supp.1988), which provided that if an accusation is set aside for failure to comply with the Speedy Trial Act, the defendant shall be discharged and such discharge shall bar “any further prosecution for the offense charged....” The decisive question in this case is whether the holding in Meshell v. State, 739 S.W.2d 246, 255-58 (Tex.Crim. App.1987) (en banc), which struck down this provision along with the Speedy Trial Act precludes reliance on the statutory bar to prosecution which was found in art. 28.-061.
In Robinson v. State, 739 S.W.2d 795 (Tex.Crim.App.1987) (en banc), the Court unequivocally adopted the rule that an unconstitutional statute is void from its inception and cannot be the basis for any claim of right or relief. Since an unconstitutional statute is void from its inception, it cannot sustain either a conviction or a plea of jeopardy. See Lowry v. State, 671 S.W.2d 601 (Tex.App. — Dallas 1984), aff'd in part & rev’d in part, 692 S.W.2d 86 (Tex.Crim. App.1985) (en banc).
Chacon v. State, 745 S.W.2d 377 (Tex.Crim.App.1988) (en banc), is determinative of the question before us. Chacon involved a prosecution for DWI. A justice court had, on motion of the prosecution, dismissed a complaint for speeding against defendant. The speeding charge arose out of the same transaction as the DWI charge. The court in which the DWI case was pending overruled defendant’s pretrial motion based on the theory that, because of the prior dismissal of the speeding charge, prosecution of the DWI case was barred by art. 28.061. The Court of Criminal Appeals held that since the statute authorizing the trial court to grant relief is unconstitutional, it is without force and effect and no relief can be granted on the basis of the unconstitutional statute. Id. at 378.
The majority attempts to distinguish Chacon by arguing that the relief requested there was “a pending matter, i.e., still in existence or extant.” There is no basis for the attempted distinction. In Chacon, the defendant relied on the prior dismissal of an accusation because of a failure to comply with the Speedy Trial Act. Here appellant relies on the prior dismissal of an accusation because of the failure to comply with the Speedy Trial Act. The trial court rejected the plea in bar, which was based on art. 28.061. The trial court’s ruling occurred before that statute was declared unconstitutional. Here appellant’s plea based on art. 28.061 was overruled by the trial court prior to the declaration in Me-shell that the statute was unconstitutional. In Chacon, the declaration of unconstitutionally occurred after the case reached the Court of Criminal Appeals. Here, the declaration of unconstitutinality occurred after the case reached this Court. Whatever the majority means by saying that in Chacon “the relief requested on appeal was a pending matter — i.e., still in existence or extant,” the same must be said here. The cases cannot be distinguished.
The judgment of the trial court should be affirmed.
DIAL, J., concurs in dissent.