#### 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, that 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 Federál sentence. That is the holding of this Court *918in .the Lawson case. If the judge had entered a proper order, at that time, cumulat-ing 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 the Texas authorities, who declined to give him any credit for the *7*years, 2 months and 26 days during which he had been listed as an escapee of the Texas Penitentiary and was in Federal Prison.

It is noted in this Court’s opinion that the Federal Judge, in passing sentence, made no reference to his state conviction. He could have made an order cumulating the Federal sentence, delivered him to the Texas authorities until he had served his sentence in .this state, and then committed him to the Federal Prison. He did not do that, hut sent him direct to the Federal Penitentiary. No order which the Federal Court made, or could have made, would have any effect on an existing sentence from a Texas court. Furthermore, we may observe that even if Baird had been tried on another charge in a State court, that court could make no order which would affect the existing sentence which he was serving. The trial judge in passing sentence on one already under sentence in another court may, by proper order, cumu-late the sentence which he imposes with the existing one, or he may let his sentence run concurrently, but nothing he may do can affect the existing sentence imposed by another court. ; This, it seems, should be without dispute.

Whether or not the State 'Court could or should have demanded possession of .the prisoner Baird, after he was convicted and ordered confined in the Federal Prison, is not before us and need not concern us. The State did not get possession of him and there is no record showing whether or not Baird made any attempt, at .that time, to have himself returned to the State Penitentiary. It is sufficient to say .that the judgment which the Federal Court entered had no affect whatsoever on an existing State judgment imposing sentence on Baird and we were in error in so holding. It becomes appropriate, in disposing of the question now before us, to say that our holding in the Baird case is overruled and so are each and every case in which this Court has followed the Baird case.

The original opinion in this -case is modified in so far as it approves the holding of the Baird case as giving relief to the relator Robert T. Spears. That part of the opinion which denies the application is sustained.

Relator's motion for rehearing is overruled and relator is now remanded to the authorities of the State Penitentiary to serve .the sentence imposed upon him which gives rise to this procedure, and will do so without any credit for the time which he has served in the Federal Penitentiary.