Thе appellant, after conviction of a felony, was placed in custody of John F. Wоmack by proclamation of the Governor, reciting that for certain reasons filed with thе Secretary of State, he granted Oscar Sparks a parole “conditioned on his good behavior and observance of the law and rules under which said application for paroie was made,” and further stating that the Board of Prison Commissioners had investigated the fаcts surrounding the case and had recommended that the application of relatоr to be permitted to go outside of the prison inclosures and remain w'ithin the bounds of the State of Texas, subject to the rules of parole as provided by the Board of Prison Commissioners, be granted. Subsequently, Governor Neff, by proclamation reciting that Oscar Sparks had brokеn the terms of the parole and that he had satisfactory reasons for so doing, revokеd the parole theretofore granted and directed that Sparks be taken into custоdy and confined in the penitentiary pending the expiration of his term of sentence. Sparks later sought his release by application for writ of habeas corpus presented to the Honorable P. O. Beard, Judge of the District Court of Harrison County, in which application he averred that his restrаint was illegal in that he had breached no permit, rule or regulation upon which he had enjoyed his liberty and further than that he was a subject of physical defects which rendered his confinеment dangerous to his life.
The cause was heard and the relator remanded to custody by order of the District Judge. Notice of appeal was given, but so far as we are aware, the record on appeal has not reached this court. The matter is here upоn an original application for habeas corpus revealing the facts herein recited and challenging the legality of his. detention. The application was filed here during vacation and relator sought release on bail pending the hearing of said appeal. The Judges of the Court of Criminal Appeals heard argument concerning the matter during vacation and declined the request for bail. In so doing, we acted in consonance with our understanding of the construction of the statutes and constitutional provisions relating to habeas corpus proceedings heretofоre announced by this court. (See Ex parte Erwin, 7 Texas Crim. App. 288; Rose’s Notes on Tex. Rep. 2nd Ed. vоl. 5, p. 52.
On the present hearing we are constrained to deny the release upon the grоunds: first, that the order of the District Judge remanding relator, in the absence of its reversal on aрpeal, is conclusive of the legality of the restraint; second, for the reason that on the merits of the case, we regard the revocation of the parole by the Govеrnor as within the scope of the power of the executive. This subject we have given attention in the case of Ex parte Redwine, No. 6473, recently decided, the point therein mаde being that the Governor was without power to summarily revoke the parole and that the right to challenge the existence of the facts upon which the revocation was bаsed in the courts obtained. The parole proclamation in Redwine’s case and in
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this one adopts as a part thereof the statutes of the state known as the Parole Raw. (See Chap. 4, Title 12, Vernon’s Texas Crim. Proc. and the rules of the Prison Board made by virtue thereof.) Granting the parole proclamation under which the relator claims his liberty to be properly classified as in the nature of a conditional pardon (Ex parte Nelson,
“If the terms of the grant, expressly or by necessary implication, make any other authority than the courts the arbiters of the quеstion as to when the conditions of the grant have been violated, then the prisoner’s quarrеl lies not with the courts for refusing to assume jurisdiction but with .the Governor when he made the terms of the grant, and the prisoner himself when he accepted them.”
The application is dismissed.
Dismissed.