Ex parte Spears

• Decision Date: 11 October 1950
• Docket Number: No. 25075,25075
• Citation: 235 S.W.2d 917,236 S.W.2d 968,154 Tex.Crim. 112,18 A.L.R.2d 507
• Parties: , 18 A.L.R.2d 507 Ex parte SPEARS.
• Court: Texas Court of Criminal Appeals

Page 917

235 S.W.2d 917

154 Tex.Crim. 112, 18 A.L.R.2d 507

Ex parte SPEARS.

No. 25075.

Court of Criminal Appeals of Texas.

Oct. 11, 1950.

Rehearing Denied Jan. 31, 1951.

Further Rehearing Denied March 14, 1951.

See 236 S.W.2d 968.

Rufus N. McKnight, Dallas, for relator.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Commissioner.

Relator seeks his discharge from the penitentiary upon the authority of Ex parte Baird, Tex.Cr.App., 225 S.W.2d 845, and Id., Tex.Cr.App., 228 S.W.2d 511.

The record before us does not affirmatively reflect that, giving relator credit upon his state sentence for the time actually served in the federal penitentiary, he has served the state sentence, as contended by him.

It is apparent, therefore, the relator is not shown to be entitled to his discharge from the penitentiary.

The application for the writ of habeas corpus is refused, without prejudice, however, to the right of relator to again seek his discharge from the penitentiary when, by crediting him with the time actually served in the federal penitentiary, he has fully served the state sentence and the penitentiary authorities refuse his discharge.

Opinion approved by the court.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Within the proper time after the rendition of the foregoing opinion, relator filed a motion for rehearing. In this he agreed with the holding that he should receive credit for the time served in the Federal Penitentiary, but makes the contention that applying the doctrine in Ex parte Baird, Tex.Cr.App., 225 S.W.2d 845, and giving him credit for good time earned, he is now entitled to discharge.

The holding of this Court in Ex parte Baird has given us much concern and we have, after careful consideration, reached the conclusion that we were in error in our holding that Baird was entitled to have his Texas sentence run concurrently with the sentence in the Federal Penitentiary. In so holding we were misled by our understanding of the facts behind Ex parte Lawson, 98 Tex.Cr.R. 544, 266 S.W. 1101. The reasoning in the Lawson case was sound and is still adhered to. The distinction between the two cases is made clear by a statement of the facts. Lawson had his Federal conviction and sentence against him at the time he was tried in the State Court. It was the duty of the State Court, at that time, to take cognizance of the Federal conviction and he is presumed to have done so. When he failed to cumulate the state sentence with the Federal sentence and then returned him to the Federal authorities, it will naturally follow that the judge intended that the state sentence should run concurrently with the Federal sentence. That is the holding of this Court in the Lawson case. If the judge had entered a proper order, at that time, cumulating the sentence imposed against Lawson with that already existing in the Federal Court he would then have been required to serve the full sentence in the State Court after his discharge from the Federal Penitentiary.

The Baird case is different and we should have so construed it. Baird had a ten-year sentence which he began serving on the 20th day of May, 1942. He was taken from the penitentiary on a bench warrant to George West, Texas, from which he escaped. He was arrested and placed in the Bexar County Jail. He became, by processes not revealed in his record, a Federal prisoner and was convicted on July 30, 1943, to serve ten years in the Federal Prison. On September 12, 1949, he was released conditionally from the Federal Prison and delivered to...