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42 SW L.J. 581 (1988-1989)
Criminal Procedure: Pretrial

handle is hein.journals/smulr42 and id is 591 raw text is: CRIMINAL PROCEDURE: PRETRIAL by Robert Udashen* T HIS Article details the major state and federal developments in the area of criminal pretrial procedure during the Survey period. I. SPEEDY TRIAL The most notable development in pretrial criminal procedure this Survey period was the demise of the Texas Speedy Trial Act.' A sharply divided court of criminal appeals2 held the Speedy Trial Act unconstitutional be- cause it violates the separation of powers doctrine in the Texas Constitution.3 The Texas Constitution divides the powers of government into three de- partments.4 A power that has been granted in the constitution to one branch of the government may not be exercised by another branch.5 Article V of the Texas Constitution6 creates the office of prosecuting attorney. The same article also establishes the judicial branch of government.7 Thus, the court of criminal appeals reasoned, prosecuting attorneys are members of the judi- cial branch of government and entitled to the separation of powers protec- tion as expressed in article II, section 1 of the Texas Constitution.8 County and district attorneys function primarily to represent the state in criminal cases.9 In carrying out this function, a prosecutor must be free to exercise discretion in preparing cases for trial. '0 The separation of powers doctrine prevents the legislature from abridging this discretion unless au- thorized by an express constitutional provision. I The legislature, however, may provide procedural guidelines regulating the method of asserting a defendant's substantive rights.12 By enacting the Speedy Trial Act, the legislature attempted to regulate enforcement of a de- *B.A., J.D., The University of Texas. Attorney at Law, Dallas, Texas. 1. TEX. CODE CRIM. PROC. ANN. art. 32A.02 (Vernon Pam. Supp. 1988). 2. Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987). 3. TEX. CONST. art. II, § 1. 4. Id 5. 739 S.W.2d at 252. 6. TEX. CONST. art. V, § 21. 7. Id. art. V, § 1 (1891, amended 1980). 8. 739 S.W.2d at 253. 9. Id. at 254. 10. Id. 11. Id. at 254-55. 12. Id. at 255.