*536 OPINION
Before us are two applications for writ of habeas corpus, 1 еach of which substantially petitions the trial court to set reasonable bail pending the disposition of petitioner’s direct аppeal to this Court.
The record reflects that petitioner was convicted of the offense of voluntary manslaughter by a jury, on April 6, 1979 in the 33rd Judicial District Court of Burnet County. April 11, 1979, the trial court convened a hearing before the court on the issue of punishment, and petitioner’s sentence was imposed at not less than two (2) nor more than fifteen (15) years confinement. Thereafter, on Mаy 11, 1979, the trial court overruled petitioner’s motion for new trial and pronounced sentence, ordering that petitioner be “rеmanded to custody of [the] Sheriff for execution of this sentence.” 2 On May 29, 1979, the trial court entered orders appointing counsеl for appeal and authorizing preparation of the record for that purpose.
The record nowhere reflects, nor does petitioner allege in his applications for appeal bond, the date on which petitioner was transferred to the Texas Department of Corrections. It is apparent, however, that appellant was confined in the Dеpartment of Corrections at the time the District Clerk filed his petition for writ of habeas corpus on January 22, 1980.
The record further rеflects that petitioner’s applications for appeal bond were delivered by the Burnet County District Clerk to the trial cоurt on January 22, 1980. The next document revealed by the record is entitled “Clerk’s Certificate of Non-Action” which treats the applications as post conviction applications for writ of habeas corpus, citing Article 11.07, supra, and recites that:
. it appears that the trial court’s failure to act within the time limits prescribed by [Article 11.07, § 2(c)] constitutes a finding that there are no previоusly unresolved facts material to the legality of applicant’s confinement, and therefore, it would appear that the application for writ of habeas corpus has been overruled by operation of law.
This “certificate” is dated Fеbruary 29, 1980; on the same day the District Clerk transmitted to this Court the transcript of proceedings regarding these writs of habeas corpus.
It is apparent from the face of the record before us that the trial court has neither conducted a hearing, nor madе a ruling, upon the merits of these requests for setting appeal bond.
In view of the circumstances we confront here and, indeеd, with escalating recurrence — i. e., in which an appealing convict is confined in the State penitentiary on a sentence more than ten years, by order of the trial court pursuant to Article 42.09, § 4, V.A.C.C.P., 3 but who, on the authority of Article 44.04(c), V.A.C.C.P., 4 is entitled to *537 reasonable bail (absent a finding of good cause tо deny such bail) by virtue of his sentence being not greater than 15 years, without the effectuation of his due process right to a hearing on his motiоn for appeal bond — this Court has constitutional authority to issue the writ of habeas corpus pursuant to our original jurisdiction. 5
In
Ex parte Briones,
These are distinct matters, and the provision addressing the manner of delivery of a convicted defendаnt for confinement pending disposition of his appeal does not necessarily foreclose the question of whether to confine him during the appeal. * * * Construing Art. 42.09 to address only the manner of delivery of appellant for confinement, and construing Art. 44.04(c) to control the determination of whether to confine appellant, we hold the apparent conflict is thereby resolved, and both statutes may be givеn effect. * * * We therefore set aside the order of the trial court denying bail under Art. 42.09, supra. The provisions of Art. 44.04(e), supra, should havе been applied by the trial court to determine whether to grant or deny bail. [Emphasis original]
Petitioner in the instant case has bеen delivered to the Texas Department of Corrections for confinement, without having the trial court consider or determine whether to confine him under the criteria established by Article 44.04(c) ; thus, petitioner has been denied one of the most rudimentary constituents of due process and due course of law. Accоrdingly, the writ of habeas corpus will issue returnable, however, to Burnet County.
The “certificate” of “no action” entered February 29,1980, is sеt aside and the Clerk of this Court is directed to issue a writ of habeas corpus to the Director of the Texas Department of Cоrrections, Honorable W. J. Estelle, commanding him to produce before the 33rd Judicial District Court of Bur-net County in the said County of Burnet instanter the person of Charles Paul Jackson for hearing on his application for bail pending appeal pursuant to Articlе 44.04(c), V.A.C.C.P. As well we direct that a copy of the opinion be forwarded to the Texas Department of Corrections and the triаl court.
A motion for rehearing will not be entertained.
It is so ordered.
Notes
. The first petition was filed by appointed counsel for petitioner, pursuant to Article 44.-04(a), V.A.C.C.P., on January 2, 1980. The second application, however, was filed by petitioner pro se on January 22, 1980, and cites Articles 11.07 and 11.08, V.A.C.C.P., as authority for the trial court’s consideration of its content.
. At that time appellant gave notice of appeal and thereafter moved for aрpointment of counsel and an appellate record at county expense.
. Article 42.09, § 4, supra, provides:
If a defendant is convicted of a felony and sentenced to death, life, or a term of more than ten years in the Department of Corrections and he gives notice of appeal, he shall be transfеrred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals.
(All emphаsis is supplied throughout by the writer of this opinion unless otherwise indicated.)
.Article 44.04(c), supra, provides:
Pending the appeal from any felony conviction where the punishment does not exceed 15 years confinement, the triаl court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. * * *
. Tex.Const. Article V, § 5 provides in pertinent part:
******
Subject to such regulations as may be prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue . the writs of habeas corpus, mandamus, pro-cedendo, prohibition, certiorari. See Thomas v. Stevenson,561 S.W.2d 845 (Tex.Cr.App.1978) (Onion, P.J., concurring).
. In Briones, supra, the trial court had denied the petitiоner’s request for bail under Article 44.04(c), supra, reasoning that Article 42.09, § 4, supra, authorized him to refuse to set a reasonable bond. From the opinion we are unable to ascertain whether Briones had been sent to the Department of Corrections, as has our petitioner herein.