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Click here for the full text of this decision FACTS:The trial court convicted Edward Michael Young of murder and sentenced him to 60 years in prison on July 21, 1995. Because Young was arrested for the crime and released on bond on Sept. 20, 1991, and not indicted until Feb. 16, 1993, he was entitled to have his murder prosecution dismissed with prejudice under the version of Texas Code of Criminal Appeals Art. 28.061 applicable to this case. Young’s trial counsel did not raise this Art. 28.061 claim during Young’s state murder prosecution. Young claimed several years later, in a state habeas corpus application, that trial counsel was constitutionally ineffective for not raising the Art. 28.061 claim. Texas courts decided that trial counsel performed deficiently by not raising the Article 28.061 claim and that this deficient performance was outcome-determinative, because it deprived appellant of a dismissal with prejudice of his state murder prosecution. But Texas courts courts nevertheless denied habeas corpus relief upon determining that this error was not legitimate prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because, when Young filed his state habeas corpus application, state legislators had amended Art. 28.061 so that dismissal of a prosecution with prejudice under Young’s circumstances was no longer required. Appellant subsequently raised the identical ineffective assistance of counsel claim in a federal habeas corpus application, which also asserted that our state courts had unreasonably applied federal constitutional law in rejecting this claim during the state habeas corpus proceedings. Several years after this, the 5th U.S. Court of Appeals agreed and granted applicant federal habeas corpus relief from his state murder conviction. After appellant obtained federal habeas corpus relief, the state obtained another indictment charging appellant with the same murder as the one charged in the earlier indictment. Appellant filed a pretrial state writ of habeas corpus asserting that the state murder prosecution should be dismissed with prejudice under the version of Art. 28.061 applicable to this case. The trial court, however, denied relief based on a finding that the enforcement provision in this version of Art. 28.061 violates the separation of powers provision of the Texas Constitution. The El Paso Court of Appeals decided that this version of Art. 28.061 is constitutional and ordered the lower court to dismiss the indictment. HOLDING:Reversed and remanded. The Court of Criminal Appeals (CCA) adopted Presiding Judge Sharon Keller’s analysis of this issue in her opinion dissenting to the dismissal of the discretionary review petition in another case. The CCA found that the enforcement provision in the version of Art. 28.061 applicable to this case violated the separation of powers provision of the Texas Constitution, because it seriously disrupts a prosecutor’s ability to perform his duties, does not effectuate a superior constitutional interest and was not contractually submitted to by the prosecution. The 5th Circuit, the CCA explained, may have properly granted relief for ineffective assistance of counsel at the time that it acted. But the CCA, it stated, had not resolved the question of whether the enforcement provision in the version of Art. 28.061 applicable to this case violated the separation of powers doctrine. Because of this sequence, the court stated that its decision did not conflict with the 5th Circuit decision. OPINION:Hervey, J., delivered the opinion of the court in which Keller, P.J., Meyers, Keasler and Cochran, J.J., joined. CONCURRENCE:Price, Johnson and Holcomb, J.J., concurred without an opinion. DISSENT:Womack, J., dissented without an opinion.

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