dissenting.
I respectfully dissent from the majority’s holding that the application of amended article 44.04(b) in this case does not violate the Texas Constitution’s prohibition against retroactive laws.1
In Grimes v. State, the court of criminal appeals recognized that an unconstitutional retroactive law is one that “disturb[s] vested, substantive rights.”2 In so holding, the court relied on the Texas Supreme Court’s decision in Ex parte Abell, wherein that court stated:
It is well settled in this state that laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new duties, or adopt new disabilities in respect to transactions or considerations past. On the other hand, no litigant has a vested right in a statute or rule which affects remedy or is procedural in nature and which affects no vested substantive right. Changes in such statutes or rules are considered remedial in nature and have been held not to violate the provisions of Article I, sec. 16 of the Constitution.3
As I see it, the issue before us is whether the right to request bail (as opposed to the right to be released on bail) is a vested, substantive right. Because Appellant was entitled to request bail at the time of his conviction and punishment, and because he has previously requested bail, posted bond, and been released, I would hold that such right is vested and substantive.4
The court of criminal appeals held in Ex parte Abahosh that an amendment to article 44.02, providing that a defendant could not appeal a plea-bargained conviction without permission of the trial court unless he had raised appealable issues in a pretrial motion, was unconstitutionally retroactive as applied to a defendant, who at the time of his trial and conviction, had an absolute right to appeal.5 Quoting from the Interpretive Commentary to article I, section 16 of the Texas Constitution, the court stated: “Although ordinarily laws changing procedure are not within the inhibition [ex post facto], still if a procedural change is retroactive and results in depriving the accused of substantial protection, it is unconstitutional.”6 The Abahosh court went on to state that “[i]n addition, there is a general rule that statutes are not to be applied retroactively_ Proper proce*718dure is governed by the laws in force at the commencement of the trial.”7
In Grimes, the court tangentially revisited Abcthosh in discussing ex post facto prohibitions, but not in discussing retroactive application of laws. The court held that amended article 44.29(b), which altered existing law by providing that reversible error made during the punishment stage of the trial warranted a new punishment hearing only, rather than an entirely new trial, did not violate the prohibition against retroactive legislation when applied to an appeal that was pending at the time the statute was amended.8 The court based its holding on the following observation:
Assuming without deciding that Article 1, Section 16’s proscription against retroactive legislation is applicable to criminal cases, that provision has never been made applicable to statutes merely affecting matters of procedure which do not disturb vested, substantive rights.9
In a footnote, the court further observed:
In using the concept of “substantial” or “vested” rights the Court of Appeals apparently drew on the test for evaluating retrospective laws only appropriate in a civil context and inappropriate in an ex post facto analysis of criminal laws conducted under the [F]ederal Constitution. This test may be proper, however, in analyzing whether legislation may be applied retroactively under the State Constitution.10
The court of criminal appeals has held that a vested, substantive right is not disturbed by: (1) changing warrant rules; (2) changing the harmless error rule; or (3) restricting subsequent habeas writs.11 The court has, however, held that retroactive application of the holding that the Speedy Trial Act is unconstitutional to a case that was dismissed for a violation of that act does disturb a vested, substantive right.12
In considering the ex post facto application of parole laws, Judge Keller wrote:
[W]hile the improper ex post facto application of parole statutes falls within the purview of this Court, the decision to release or not release an inmate, even though he is eligible for parole, remains within the sound discretion of the Board of Pardons and Paroles.13
Although Judge Keller was discussing ex post facto laws, the parole situation seems close to what we are dealing with in this case. Both concern the right to request release, not the right to a decision to release. In the case now before us, Appellant’s substantive right to request release on bond pending appeal vested when he was sentenced ”to ten years’ confinement. I do not think article I, section 16 of the Texas Constitution permits the trial court to deprive Appellant of that vested right.
I would hold that the trial court is obligated to hold a hearing on Appellant’s *719request for bond pending appeal. Accordingly, I would reverse the trial court’s denial of habeas relief and remand this case to the trial court to conduct a hearing. Although the trial judge may well be justified in denying Appellant’s request for release, such justification does not appear in the record as it now stands.
. Tex. Const, art. I, § 16; TexCode Crim.Proc. Ann. art. 44.04(b) (Vernon Supp.2001).
. Grimes v. State, 807 S.W.2d 582, 587 (Tex.Crim.App.1991).
. Ex parte Abell, 613 S.W.2d 255, 260 (Tex.1981) (citations omitted).
. See Act of May 30, 1983, 68th Leg., R.S., ch. 425, § 26, 1983 Tex.Gen.Laws 2361, 2416, amended by Act of May 19, 1999, 76th Leg., R.S., ch. 546, § 1, 1999 Tex.Gen.Laws, 3042, 3042-43 (current version at Tex.Code Crim. Proc.Ann. art. 44.04(b) (Vernon Supp.2001)).
. Ex parte Abahosh, 561 S.W.2d 202, 203-04 (Tex.Crim.App. [Panel Op.] 1978).
. Id. at 203.
. Id. at 204 (citations omitted).
. Grimes, 807 S.W.2d at 587-88.
. Id. at 587 (footnote omitted) (citing Holder v. Wood, 714 S.W.2d 318, 319 (Tex.1986); Abell, 613 S.W.2d at 260-62; Merchants Fast Motor Lines, Inc. v. R.R. Comm’n of Texas, 573 S.W.2d 502, 504-05 (Tex.1978)).
. Id. at 587 n.7 (citations omitted).
. Ibarra v. State, 11 S.W.3d 189, 192-93 (Tex.Crim.App.1999); Fowler v. State, 991 S.W.2d 258, 261 (Tex.Crim.App.1999); Ex parte Davis, 947 S.W.2d 216, 219-20 (Tex.Crim.App.1996).
. Lapasnick v. State, 784 S.W.2d 366, 369 (Tex.Crim.App.1990).
. Ex parte Geiken, 28 S.W.3d 553, 556 (Tex.Crim.App.2000).