dissenting.
Relator was at liberty upon a conditional pardon issued by the Governor of this state when he was tried and convicted of a Federal offense in a Federal court and sentenced to a term in a Federal penitentiary for a term of five years.
Upon being advised of that fact, the governor of this state revoked the conditional pardon on June 24, 1954, and provided in the order of revocation the following:
“It is hereby ordered that Subject be returned to and confined in the Penitentiary to serve the sentence originally imposed upon him and hereinabove referred to or so much thereof as had not been served by him at the time of his release under the Proclamation hereinabove referred to, or any previous acts of clemency, and the prison authorities are hereby directed to keep him in charge to serve such sentence originally imposed upon him or so much thereof as had not been served by him at the time of his release under the terms of the Proclamation above referred to or any previous clemency, and the time during which Subject has been at large under said Proclamation or any previous clemencies shall not be considered or credited to Subject as time served on such sentence.”
Relator was discharged as having fully satisfied his Federal sentence on September 6, 1957, and is now in custody to serve *112the remainder of the sentence originally imposed by the Texas conviction.
The question is whether relator is entitled to credit upon his Texas sentence for the time served in the Federal penitentiary after the revocation of his conditional pardon.
I am of the opinion that he is so entitled, and that the following authorities support that conclusion: Art. 774, C.C.P.; Ex parte Lawson, 98 Texas Cr. Rep. 544, 266 S.W. 1101; Ex parte Whiteside, 141 Texas Cr. Rep. 642, 150 S.W. 2d 1022; Ex parte Herrod, 146 Texas Cr. Rep. 360, 175 S.W. 2d 87. In my opinion, the case of Ex parte Lawson is directly in point.
In the latter case, Lawson, a federal convict at the time serving his term in the federal prison, was brought before a Texas court and there tried and sentenced to the Texas penitentiary for a term of years for a violation of a Texas law. In passing sentence the Texas court made no reference to the Federal sentence but ordered Lawson to be confined in the state penitentiary.
Lawson was returned to the Federal penitentiary, where he completed serving the Federal sentence.
It was held that since the state sentence had not been made to run cumulative with the Federal sentence, Lawson was entitled upon his Texas sentence to the time served in the Federal penitentiary after the Texas sentence was pronounced against him.
Lawson was returned to the Federal penitentiary, where he completedserving the Federal sentence.
It was held that since the state sentence had not been made to run cumulative with the Federal sentence, Lawson was entitled upon his Texas sentence to the time served in the Federal penitentiary after the Texas sentence was pronounced against him.
The Lawson case has been differentiated in subsequent cases, but the holding there has not been disturbed and was approved by this court as late as Ex parte Spears, 154 Texas Cr. Rep. 112, 235 S.W. 2d 917.
The wording of the proclamation of the Governor of this *113state in revoking the conditional pardon removes any question as to the applicability, here, of the rule announced in the Lawson case. There, the governor not only revoked the conditional pardon but, with full knowledge of the fact that relator was then a Federal convict serving a term in the Federal penitentiary, ordered him returned to and confined in the Texas penitentiary to serve the remainder of the Texas sentence.
Here, the order of the Governor put the Texas sentence into effect. So then, from and after that date the relator was serving two sentences, neither of which was made to run cumulative. Therefore, by the express provisions of Art. 774, C.C.P., they ran concurrently.
It is apparent, therefore, that from and after the revocation of the conditional pardon relator’s Texas sentence was served at the same time he served the Federal sentence.
It will be remembered that the Governor of this state was not required to revoke the conditional pardon at the time he did, nor was he required to direct that the relator be required to begin serving the remainder of the Texas sentence.
The relator is entitled to credit on his Texas sentence for the time served in the Federal penitentiary after the conditional pardon had been revoked and the Texas sentence put into effect.
In the majority opinion my brethren refuse to pass upon appellant’s contention. Their reason for so refusing is, they say, that the record does not reflect that he is entitled to his discharge and that to pass upon his contention in the absence of such a showing would be to write a declaratory judgment in his case.
Well I am not so sure about that! Relator accumulated a credit of four years for approximately two years and two months’ actual time served in the Texas penitentiary, and he served the Federal sentence of five years in three years and five months ■ — all of which reflects that relator received good conduct credits upon his Federal sentence, to which he would also be entitled upon his Texas sentence.
It is in all things reasonable to say that under this record relator is entitled to be discharged. At least he is entitled, under the circumstances, to have this court determine if he is en*114titled upon his Texas sentence for time served and earned while serving the Federal sentence.
I insist that under the circumstances presented we ought to accord to relator a determination of his contentions. We did so in the case of Ex parte Whiteside, 141 Texas Cr. Rep. 642, 150 S.W. 2d 1022. I fail to see any good reason why we should not accord this relator the same treatment.
Avoidance of useless litigation and a multiplicity of law suits is always to be desired.
Whether relator is or is not entitled to credit for the time served in the Federal penitentiary is now a matter of law and is fixed and determined and will not change by reason of any subsequent event or happening.
To my mind it is absolutely useless and nonsense to require relator to bring, within a few months, another lawsuit to have this court determine that which is presently and" properly before this court and which will not be altered or changed in the meantime.
The useless litigation which my bretheren here require cannot be laid at the door of anyone save and except a majority of this court. I want no part of it.
We are dealing, here, with human liberty. Every day the relator is unlawfully and without authority kept in the penitentiary is a travesty not nly upon human rights but upon our claim of justice under law. If relator is entitled to be discharged from the penitentiary, as he contends, he is entitled to his liberty the very day the discharge is due. He ought not to be required to wait and remain and serve as a convict in the penitentiary while the courts, including this court, determine his legal rights — which question is now before this court for determination.
When this court finally determines that relator is entitled to credit for the time spent in the Federal penitentiary, as he contends, I wonder by whom or how or by what means relator is to be compensated and paid for the injury and damage done to him by his unlawful imprisonment while the courts determine that which they ought to now determine. I know of no way he can be so compensated.
*115This injury and unlawful imprisonment can be obviated if my brethren will now do that which they ought to do.
I respectfully dissent.