concurs.
BLOODWORTH, J., concurs specially. COLEMAN, J., concurs in opinion of BLOODWORTH, J. BLOODWORTH, Justice (concurring specially) :I agree with that part of the opinion of Mr. Justice Simpson which states that the petitioner’s sentences at the time of the habeas corpus hearing (November 15, 1968) had not expired even though petitioner is granted credit for the time spent in Jefferson County in jail. As I calculate it, if credit is given for the time spent in Jefferson County jail, petitioner’s sentences had three more months to run. Therefore, I must reluctantly agree the case must be reversed since the trial court was in error in discharging the petitioner at that time. His petition was premature. However, I do not agree with the opinion of Simpson, J., wherein he states that the Parole Board’s action in not returning the petitioner'until April 11, 1968 was “reasonable” and “practicable” within the meaning of these terms in Title 42, § 12, Code of Alabama, 1940, as last amended. This section reads as follows:
“§ 12. Delinquent prisoners; parole courts. — Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the board at its next meeting shall declare such prisoner to be delinquent and time owed shall date from such delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his parole. Thereupon, such board shall, as soon as practicable, hold a parole court at such prison or at such other place as it may determine, and consider the case of such parole violator, who shall be given an opportunity to appear personally or by counsel before such board and produce witnesses and explain the charges made against him. The board shall within a reasonable time act upon such charges, and may, if it sees fit, require such prisoner to serve out in *660prison the balance of the term for which he was originally sentenced calculated from the date of delinquency or such part thereof as it may determine.”
Under this section, the State Board of Pardons and Paroles is charged with the duty to hold parole court to consider delinquency charges against a prisoner on parole “as soon as practicable” after the Board is notified of the return of the paroled prisoner to prison. The warden is charged with the duty to promptly notify the Board of such return.
Although it is not clearly spelled out, I would interpret this section as requiring the prompt return of a prisoner to prison so that the Board (which has already declared the prisoner to be delinquent, an action which tolls the running of his sentence) may hold its hearing. The statute states the previous “time owed” to the State “shall date from” the declaration by the Board of a prisoner’s delinquency.
Surely, the prisoner has a right under “due process” to have a prompt hearing at which time his, and the State’s witnesses, may be heard, and to appear himself personally or by counsel, to “explain the charges made against him.” Title 42, § 12, supra.
It seems to me in this case there was an unreasonable delay in returning this prisoner to the prison and that this unreasonable delay foreclosed action on the part of the Parole Board to hold its parole court “as soon as practicable” and to determine what action it should take respecting the alleged violations of the prisoner’s parole. What is, or may be, a “reasonable” delay in returning a prisoner to the prison will depend, in my judgment, on the facts and circumstances of each individual case, such as if, and in whose custody, the prisoner is incarcerated, whether Federal or State, the charge on which he is being held, and other factors. Obviously, when the prisoner is on escape and his whereabouts are unknown, he could not then be returned.
In this case, the petitioner was declared delinquent by the State Board of Pardons and Paroles July 13, 1967. A warrant was then issued which was in the hands of the Jefferson County sheriff on October 27, 1967. Petitioner was incarcerated in the Jefferson County jail from October 19, 1967 to April 11, 1968 unable to make bond. The case was nolle prossed April 4, 1968. His parole was not revoked until May IS, 1968. It seems to me he should be given credit for the time in which he was incarcerated in the Jefferson County jail, in custody of an arm of the State of Alabama, and when he could have been returned to face parole court before the State Board of Pardons and Paroles.
COLEMAN, J., concurs in the opinion of BLOODWORTH, J.