Ex parte Johnston , 166 Tex. Crim. 108 ( 1958 )

BELCHER, Judge.

Relator, an inmate of the Texas Penitentiary, seeks his release by writ of habeas corpus. His application for such writ was presented to the Honorable Maxwell Welch, Judge of the Fifth Judicial District, Bowie County, Texas, and after a hearing, the writ was granted and made returnable before this court in accordance with Art. 119, Vernon’s A.C.C.P., and relator was remanded to the custody of the sheriff pending final disposition thereof.

The record in the case shows:

Relator was convicted on December 9, 1949, upon his plea of guilty, in the Criminal District Court of Bexar County of two offenses of robbery and his punishment was assessed in each case at ten years in the penitentiary.

Relator began serving the two sentences for robbery on December 9, 1949. Thereafter and on February 6, 1952, the Governor of Texas granted relator a conditional pardon. While he was at liberty under such clemency he was charged, tried and convicted in a Federal court of an offense committed after his release from the Texas Penitentiary. His federal sentence was for a term of five years which he began serving April 2, 1954, and completed and was released September 6, 1957. The Governor of Texas revoked relator’s conditional pardon on June 24, 1954, a detainer was placed on him with the proper federal authorities by the State of Texas, and he has been in state custody since September 6, 1957.

Relator contends that his term of imprisonment on the two robbery sentences have been fully satisfied because his time continued to run from and after the date of his release on the conditional pardon. He further contends that if the sentences are not fully satisfied then he should receive credit on them since the date of the revocation of clemency, June 24, 1954, to the date of his transfer from federal to state custody, September 6, 1957.

In cases of this character our duty is to determine only whether relator’s restraint and imprisonment is illegal. In Ex parte Neisler, 154 Texas Cr. Rep. 634, 69 S.W. 2d 422, this court said: “It is to be borne in mind that the sole ground upon which this court would have jurisdiction of the application for writ of habeas corpus was that it might determine whether or not relator was entitled to discharge at the present time. Having reached the conclusion that he was not illegally restrained of his liberty, this court would be out of its sphere in endeavoring to determine at what time and under what circumstances the relator would be entitled to discharge.” See also, Ex parte King, 156 Texas Cr. Rep. 231, 240 S.W. 2d 777; Ex parte Herring, 160 Texas Cr. Rep. 357, 271 S.W. 2d 657: Ex parte Puckett, 161 Texas Cr. Rep. 51, 274 S.W. 2d 696. If we sustained both of appellant’s contentions he would not be entitled to discharge under the two ten year sentences for robbery and his confinement would still be legal.

The application for writ of habeas corpus is denied.

Opinion approved by the Court.