*1 112 Spears. T.
Ex Parte Robert 11, No. 25075. October 1950. January Rehearing Denied 1951. Rehearing Motion for Denied March 1951. Second Dallas, McKnight, N. relator. for Rufus Attorney, Austin, George Blackburn, for the state. W. State’s OF HABEAS ON APPLICATION FOR WRIT CORPUS. DAVIDSON, Judge. discharge upon
Relator seeks his authority Baird, volume), 228 (Page Ex Parte 2d S. W. 511. that, affirmatively The record reflect before us does not actually upon time relator credit his state sentence penitentiary, state sen- served the federal he has served
tence, as contended him. apparent, therefore, It is to be relator shown discharge entitled to his from the refused, application corpus the writ of habeas again right prejudice, however, without of relator when, crediting discharge from the seek penitentiary, actually federal has served in the with time *2 penitentiary fully and the authorities state served the sentence discharge. his refuse
Opinion approved the court. rehearing. motion for
on relator’s BEAUCHAMP, Judge. proper foregoing the
Within the time after rendition of the rehearing. opinion, agreed In relator filed a motion for this he holding with the that he should receive credit for the time penitentiary, served in Federal the but makes the contention applying Baird, (Page the that doctrine in Ex Parte 109 of this good volume), earned, and him credit time 225 W. 2d S. discharge. he is now entitled to holding given
The of court in Ex Parte Baird has us have, consideration, much concern and we after careful reached the holding conclusion that we were in error in that Baird our concurrently was entitled to have his Texas sentence run with the sentence in the Federal In so we were understanding misled our of Ex Parte the facts behind Lawson, reasoning S. W. 1101. in the case Lawson sound and is still adhered to. The distinction the two between by a cases is made clear statement of facts. Lawson had the against his Federal conviction and sentence him at the time he court, duty was tried in the state court. It was the of the state time, cognizance at that to take federal convic- presumed tion and he is to done have so. he failed to When cumulate the state sentence with the Federal sentence and then authorities, naturally returned him to the Federal will it follow judge that the that intended the state should run con- currently with the Federal sentence. is the of this That judge court proper the Lawson case. If the had entered a order, time, cumulating against imposed at that the sentence already existing Lawson with that court Federal he would then required been to have after his serve the full sentence in court the state discharge Penitentiary. from Federal The Baird case is different and we should construed have so year began serving it. Baird had a ten sentence which he on day May, the 20th 1942. He was taken from the George West, Texas, on a bench warrant to from which he escaped. placed County He was arrested and Bexar Jail. record, became, by processes
He not revealed in his a Federal years prisoner July 30, to ten and was convicted on serve prison. September released in the he was Federal On prison conditionally to Federal and delivered authorities, give any credit to Texas who declined during years, days which he had been the 7 2 months and 26 escapee in Fed- as and was listed an the Texas prison. eral judge,
It is in this the Federal noted court’s passing sentence, reference to his conviction. made no state sentence, cumulating could an He have made order served delivered him the Texas until had to authorities state, Federal then him the sentence in this committed that, prison. not do sent him direct He did *3 made, could penitentiary. or order the Federal court No which existing made, any on sentence have would have an effect if Furthermore, may even we that a Texas court. observe court, charge that in a state Baird tried on another had been existing sen- make which would affect the court could no order serving. judge passing in sen- The tence which he was trial proper may, by already in another court on under sentence one order, imposes exist- with the the sentence which he cumulate concurrently, one, noth- ing may let sentence run or he by an- existing imposed ing may can the sentence do affect dispute. This, seems, without it should be other court. de- have court or should or not the state could
Whether Baird, con- prisoner after he was possession manded of the prison, before the not victed and confined in ordered get possession The did not us and need concern us. state not showing Baird whether not of him and is no record or there any time, attempt, made to at to have himself returned that penitentiary. say judgment the state It is sufficient to the on which Federal court entered had no effect whatsoever the existing judgment imposing and an state sentence on Baird holding. appropriate, we were in in in error so It becomes us, disposing question say of the now before to that our hold- ing in every the Baird case is overruled and are so each and case in which this court has followed the Baird case. original opinion in this modified far as case is in so approves
it the the of the Baird relief to case as Spears. part relator T. denies Robert That which the application is sustained. rehearing is overruled and relator Relator’s motion for authorities of the state now remanded to the to gives imposed upon which to serve rise any procedure, and will do so without credit for time which penitentiary. he has served SECOND FOR REHEARING. ON RELATOR’S MOTION MORRISON, Judge. opinions The two heretofore rendered in this failed cause guidance fully.
to set forth the This we now facts do of the bench, especially bar authorities and since the effect of this is to overrule one or more decisions of this court. Spears 4, 1943,
Relator was on June Cause No. 1091 in Texas, Gray County, the District Court of convicted of of- felony fence of a theft and sentenced term from two to years ten appeal perfected, the state No began serving and relator July this sentence. On relator System was released from the Texas Prison aon six-months reprieve Gray County by virtue of Executive Proclamation No. 37-9660. When relator did return to the Prison Texas System expiration at period, of this six-months he became fugitive. a Apparently during reprieve the term of said was ar- relator rested the Federal authorities in the State Oklahoma *4 January 25, just because on 1946, twenty-one days after reprieve expired, he was convicted District Court for Western District that state a Federal for of- give years System. fense and sentenced to in the Federal Penal existing Gray County No mention was made of the pronouncing appeal was Court sentence. No perfected sentence, began from this and relator there- service under. having On relator, June served his Federal sen-
tence, was released to the authorities to the Texas Prison System brings where he now incarcerated. He writ of claiming corpus habeas Gray County credit on the sentence for spent System. the time in the Federal Prison Relator contends that motion this Court on rehearing only the Baird overruled case. parte Baird, (page 845, Ex volume), 109 of this 2d S. W. opinion, expressly said also done which Newton, Rep. 284 S. W. parte 105 Tex. Cr. in Ex of this court supporting the doctrine opinion can be construed as If that 953. case, it is also overruled.
in the Baird rehearing overruled. motion for second Relator’s Baker v. Cecil State. 24593. 1950. January No. Levelland, appellant. Allison, R. Earl R. Alvin Allison and Levelland, Boedeker, County Attorney, George E. W. Attorney, Austin, Blackburn, for the state. P. State’s *5 Judge. WOODLEY, Hockley
Appellant county court was convicted in the transporting whiskey county, County of the offense of said dry area, jury punishment a a and the assessed his at fine $300.