Ex parte Spears , 236 S.W.2d 968 ( 1951 )

MORRISON, judge.'

The two opinions heretofore rendered in this cause failed to set forth the facts fully. This we now 'do for guidance of the bench, the bar and penitentiary authorities and especially since the effect of this holding is to overrule one or more decisions of this Court.

Relator Spears was on June 4, 1943, in Cause. No.' 1093 in the District,'Court of' Gray County, Texas, convicted of the offense of felony theft and sentenced to a term of from two to ten years in the State Penitentiary. No appeal was perfected, and relator began serving this sentence. On July 4, 1945, relator .was released from the Texas Prison System on a six-months reprieve to Gray County by virtue of Executive Proclamation No. 37-9660. When relator did not return to the Texas Prison System at the expiration of this six-months period, he became a fugitive.

Apparently during the term of said reprieve relator was arrested by the Federal authorities in the State of Oklahoma because on January 25, 1946, just twenty-one days after the reprieve expired, he was convicted in the Federal District Court for the Western District of that state for a Federal offense and sentenced to five years in the Federal Penal System. No mention was made of the existing Gray County sentence by the Federal Court in pronouncing sentence. No appeal was perfected from this sentence, and relator began service thereunder.

On June 14,1949, relator, having served his Federal sentence, was released to the authorities of. the Texas Prison System where he is now incarcerated. He brings this writ of habeas corpus claiming credit on the Gray 'County, sentence for the time spent in the Federal Prison System.

Relator contends that the opinion of this Court on motion for rehearing not only overruled the holding in the Baird case, Ex parte Baird, Tex.Cr.App., 225 S.W.2d 845, which was expressly done by said opinion, but also the holdings of this Court in Ex parte Newton, 105 Tex.Cr.R. 53, 284 S.W. 953. If that opinion can be construed’ as supporting the doctrine in the Baird case,.it is also’overruled.

Relator’s second motion for rehearing is overruled.