Ex Parte Nelson

Citation209 S.W. 148
Decision Date12 February 1919
Docket Number(No. 5304.)
PartiesEx parte NELSON.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Application for habeas corpus by Robert Nelson. Application dismissed.

John T. Duncan, of La Grange, for appellant.

C. M. Cureton, Atty. Gen., and E. A. Berry., Asst. Atty. Gen., for the State.

MORROW, J.

Relator was convicted of murder, and sentenced to confinement in the penitentiary for a period of 25 years. The Governor of the state has issued the following proclamation granting him parole:

"Whereas, at the December term, A. D. 1917, of the district court of Fayette county, state of Texas, Robert Nelson was convicted on a charge of murder, and his punishment assessed at 5 to 25 years' confinement in the state penitentiary; and

"Whereas, it appeared that appellant, Robert Nelson, has now served nearly a year of his sentence with a clear prison record and eight days' overtime to his credit:

"Now Hon. J. L. Hunter, of Austin, Tex., is asking for his parole.

"And whereas, Hon. J. L. Hunter, of Austin, Tex., agrees to pay the said Robert Nelson $15 per month for his services as general laborer, and he also agrees to furnish him with his board and lodging, take a friendly interest in him, and to report to the prison commissioners each month in regard to his conduct and health;

"Whereas, the board of prison commissioners, who investigated the facts surrounding this case, recommended that the applicant be permitted to go out of the confines of the prison inclosures, and yet remain in the boundaries of the state of Texas, subject to the rules of parole as provided by the board of prison commissioners:

"Now, therefore, I, W. P. Hobby, Governor of Texas, do by virtue of the authority vested in me by the Constitution and laws of this state, hereby, for the reason specified, now on file in the office of the secretary of state, grant the said Robert Nelson a parole, conditioned on his good behavior and observance of the law and rules under which application for a parole was made."

He was at the time of his arrest, hereinafter referred to, enjoying the privileges extended to him by the executive in the proclamation mentioned. He is under indictment for murder in another and different case which is pending on the docket of the district court of Fayette county. The clerk of that court issued a warrant for his arrest under that indictment, and he is held in the county jail of Fayette county awaiting the meeting of the district court for trial.

His application for habeas corpus is based upon the proposition that the authority of the district court to cause his detention by reason of the indictment of murder pending would be limited to the power of that court to issue a bench warrant bringing him before the court while in session in order that he might undergo trial.

We find in Vernon's Annotated Code of Criminal Procedure, arts. 1057a and 1057b, the following:

"Art. 1057a. Meritorious prisoners who are now or may hereafter be in prison under a sentence to penal servitude may be allowed to go upon parole, outside of the building and jurisdiction of the penitentiary authorities subject to the provisions of this act, and to such regulations and conditions as may be made by the board of prison commissioners, with the approval of the Governor of this state, and such parole shall be made only by the governor, or with his approval.

"Art. 1057b. Paroled Prisoners to Remain under Control of Board of Prison Commissioners; Retaking; Warrants. — While on such parole such prisoners shall remain under the control of the board of prison commissioners and subject at any time to be taken back within the physical possession and control of the said board of prison commissioners as under the original sentence, but such retaking shall be at the direction of the Governor, and all orders and warrants issued by said board of prison commissioners under such authority for the retaking of such prisoners shall be sufficient warrants for all officers named therein to return to actual custody and parole convicts, and it is hereby made the duty of all officers to execute such orders as ordinary criminal processes."

These provisions are also found in Acts 1911, p. 64.

Section 11 of article 4 of the Constitution is as follows:

"In all criminal cases, except treason and impeachment, he shall have power, after conviction, to grant reprieves, commutations of punishment, and pardons; and, under such rules as the Legislature may prescribe, he shall have power to remit fines and...

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6 cases
  • Rose v. State
    • United States
    • Texas Court of Criminal Appeals
    • 12 Noviembre 1987
    ...the constitutional provision with reference to the remission of fines and forfeitures and with reference to treason." Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148 (1919) 1 and Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96 (1922) (any part of parole law wherein clemency power of the chie......
  • Ex Parte Heartsill
    • United States
    • Texas Court of Criminal Appeals
    • 6 Mayo 1931
    ...because the proceeding under which he is held was irregular or void. To the same effect is article 158, C. C. P. See Ex parte Nelson, 84 Tex. Cr. R. 570, 209 S. W. 148; Ex parte Garner, 93 Tex. Cr. R. 179, 246 S. W. 371; Ex parte Lowe, 94 Tex. Cr. R. 307, 251 S. W. 506; Ex parte Acker, 85 T......
  • Ex Parte Redwine
    • United States
    • Texas Court of Criminal Appeals
    • 19 Octubre 1921
    ...he accepted them. Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395; Ex parte Rice, 72 Tex. Cr. R. 587, 162 S. W. 891; Ex parte Nelson, 84 Tex. Cr. R. 570, 209 S. W. 148; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395; State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A......
  • Ex parte Lefors, 29016
    • United States
    • Texas Court of Criminal Appeals
    • 1 Mayo 1957
    ...to a commutation. A parole is classified as a conditional pardon. Ex parte Sparks, 90 Tex.Cr.R. 190, 234 S.W. 393; Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148. Yet a parole does not possess the finality attached to a pardon, but is a release from imprisonment on specified conditions to ......
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