May Court Dismiss a Criminal Case Without Requests ?

In State v. Johnson, this Court stated, "a court may take a particular action only if that action is authorized by constitutional provision, statute or common law, or the power rises from an inherent or implied power." 821 S.W.2d at 612. Generally, a trial court does not have the power to dismiss a case unless the prosecutor so requests. See id. at 613. A trial court does, however, have the power to dismiss a case without the State's consent under Texas Code of Criminal Procedure Article 32.01. See id. at 612 n.2. Article 32.01 provides: When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever is later. Tex. Code Crim. Proc. art. 32.01. Effective May 6, 1997, Article 28.061, which bars further prosecution for a discharged offense, was amended, and that article no longer applies to a discharge under Article 32.01. Therefore, even if a defendant is entitled to discharge from custody under Article 32.01, that defendant is not free from subsequent prosecution. See 41 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE 23.81 (Supp. 2000). Article 28.061 states: If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. a discharge under this article is a bar to further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute. Tex. Code Crim. Proc. Art. 28.061.