Opinion
No. 31265.
October 14, 1959.
Appeal from the District Court, Potter County.
D. Bart Mauzy, Donald G. McCormick, Houston, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
By writ of habeas corpus, the relator, an inmate of the penitentiary, seeks his release, alleging that an order cumulating sentences against him was invalid, and that he has served the sentences.
The record shows that the relator was convicted May 27, 1955, for a felony offense in cause No. 9,421 in the 47th District Court of Potter County, and his punishment was assessed at five years. Sentence was pronounced upon him on the same day, and he was placed on probation. Thereafter, on December 20, 1956, relator was convicted for the offense of rape in cause No. 302 in the District Court of Sherman County, and he was sentenced to five years. Subsequently, on December 31, 1959, the order granting the relator probation in cause No. 9,421 in the 47th District Court of Potter County was by said Court revoked, and said sentence was attempted to be made cumulative of the sentance in cause No. 302 in the District Court of Sherman County.
The term of court at which the relator was convicted, sentenced and granted probation in the Potter County cause, had expired at the time said court revoked its order of probation therein and sought to cumulate said sentence with the Sherman County sentence.
In Ex parte Minor, Tex.Cr.App., 319 S.W.2d 114, we said: 'When the term of court adjourned at which the 1954 sentence was imposed, the trial court lost all power to alter, change or amend the same, and the only order he could enter was to revoke it. He could not add further conditions to such sentence which were not, and under the facts could not have been, a part of such sentence at the time it was imposed.' See also Ex parte Tucker, Tex.Cr.App., 325 S.W.2d 703.
Minor is here applicable and controlling.
The certificate of the prison system shows that relator has credit for time in excess of the maximum term of either of the sentences.
The writ is granted, and the relator is ordered discharged.
Opinion approved by the Court.