1

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
ORDER
CAME this day to be heard the Defendants 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

AF F I D AV I T

STATE OF TEXAS
COUNTY OF NUECES
Before me, the undersigned authority, on this day appeared [
upon her oath did depose:

], who, being duly sworn,

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:_______________________