No.

THE STATE OF TEXAS                                                 	IN THE DISTRICT COURT

VS.                                                                                   	 ________JUDICIAL DISTRICT

								____________COUNTY, TEXAS

                 MOTION TO DISMISS PROSECUTION WITH PREJUDICE

Comes now the Defendant in the above entitled and numbered cause and files this 

Motion to Dismiss Prosecution pursuant to Article 32.01, Texas Code of Criminal 

Procedure,   and Article 28.061, and in support thereof would show as follows:

          Defendant was arrested on [                    ] and charged with the felony offense of

[                              ]   .Defendant posted bond on [               ] and was thereafter released 

from jail. (Or) Defendant has been unable to make bail and is currently held by the 

Sheriff of [              ] county in connection with this offense.

	Pursuant to Article 32.01, Texas Code of Criminal Procedure,  

“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 before the 180th day 

	after the date of commitment or admission to bail, whichever date is later.” 

	(Emphasis added).   

          The offense allegedly occurred, and defendant arrested and held to bond in the 

[                 ] term of court. The subsequent term began on [                 ] and ended on

[                        ]. No indictment was returned during that time. (Or)

	More than 180 days have elapsed since the accused was committed or held to bail 

and no indictment has been returned.

	For want of timely prosecution the case should be dismissed.

	The accused further moves that the dismissal be done with prejudice and that 

no further prosecution be allowed. Article 28.061, Texas Code of Criminal Procedure,

provides that: 

	“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 any 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.”

 	Defendant further relies on  Nix v. State, 882 S.W. 2d 474 ( Tex. App. Houston 

[1st Dist.] 1994) rehearing denied.

 	WHEREFORE, premises considered, Defendant asks the court to dismiss this 

cause with prejudice. 

							

							Respectfully submitted,

							_________________________
							Name
							Attorney for Defendant
							Address

					[certificate of service]

				         No.

THE STATE OF TEXAS					IN THE DISTRICT COURT

VS.									JUDICIAL DISTRICT

										COUNTY, TEXAS

				                  O R D E R

	CAME this day to be heard the Defendant’s Motion to Dismiss Prosecution in 

this cause and the court, having heard the evidence and argument of counsel, is of the 

opinion that the Motion is well taken, and should be, and is, in all things, GRANTED.

	This cause is dismissed with prejudice..

	Signed this __________day of ________________, 20___.

							_____________________________
							JUDGE PRESIDING

					A F F I D A V I T

STATE OF TEXAS 
COUNTY OF NUECES

    Before me, the undersigned authority, on this day appeared [           ], who, being duly sworn, upon her oath did depose:

    “ My name is [             ]. I am the attorney of record for the accused in this cause. The facts contained in the foregoing motion are true and correct to the best of my knowledge.”

    Subscribed and sworn to this ________ day of ____________________, 19_____.

							_______________________
							Affiant

  Notary Public:_______________________