Opinion
No. 43369.
August 3, 1970.
Appeal from the Criminal District Court No. 2 of Dallas County, Charles T. Davis, J.
Bill Roberts, Garland, for appellant.
Henry Wade, Dist. Atty., and Hugh Lucas, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
Petitioner was convicted of the felony offense of unlawfully breaking and entering a motor vehicle with intent to commit the crime of theft (Art. 1404b, Vernon's Ann.P.C.) and on April 28, 1970, was sentenced to a term of not less than 1 day nor more than 90 days in the Texas Department of Corrections, "back time" being allowed with credit on said sentence from March 10, 1970. Right of appeal was waived.
Having been confined in the Dallas County Jail for more than 90 days after sentence without having been delivered to the Texas Department of Corrections, petitioner sought release by habeas corpus.
On June 18, 1970, the Honorable Charlie T. Davis, Judge of the convicting court, after a hearing, found that no legal cause had been shown for the imprisonment or restraint of the petitioner, granted the writ and made it returnable before the Court of Criminal Appeals.
The undisputed facts showing that petitioner has served his sentence of 90 days, he is entitled to release from further confinement.
We express the view that under such circumstances the legality of the felony conviction not being attacked and there being no issue as to the sentence being fully satisfied, the Judge of the District Court in which the sentence was pronounced has authority to grant such relief. The sheriff of Dallas County is directed to release the petitioner. No motion for rehearing will be entertained.
MORRISON and DOUGLAS, JJ., not participating.