Opinion
No. 61629.
October 3, 1979.
Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION
This action is brought seeking a writ of mandamus directing the Honorable John L. Placke, Judge of the 21st District Court of Bastrop County, to vacate his order of March 19, 1979, in which he refused to dismiss the indictment for possession of more than four ounces of marihuana pending against the petitioner.
Petitioner contends that he was not afforded a trial "within 120 days from the commencement of (the) criminal action (against)" him, as he is guaranteed under the provisions of the Speedy Trial Act, Article 32A, V.A.C.C.P. Our recent decision in Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App. 1979), however, renders petitioner's contention meritless. Since an appeal is available to petitioner in the event of his conviction to test any possible denial to his right to a speedy trial, either on a statutory or constitutional basis, mandamus is not available to him to compel the discretionary action which is vested in the trial court pursuant to the provisions of the Speedy Trial Act, Article 32A, supra. Ordunez v. Bean, supra.
To this extent, petitioner's contention is overruled and the application for writ of mandamus is denied.