Ex Parte Minjares

DOUGLAS, Judge,

dissenting.

The opinion on original submission was correct.

The majority opinion leaves the impression that there is no difference between a judgment and a sentence and treats them as the same. In Ex parte Hayden, 152 *110Tex.Cr.R. 517, 215 S.W.2d 620 (1948), the Court wrote, “ ‘Judgment’ and ‘sentence’ are not the same thing; the two are distinct and independent. . . . ” In that case the convictions were for misdemeanor offenses. The trial court granted probation and ordered the relators discharged. The sheriff refused to discharge them and the habeas corpus proceeding followed.

Under consideration was a Texas constitutional provision, Section 11-A of Article 4, which provides:

“The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.” (Emphasis supplied).

House Bill No. 120, Chapter 452, Acts of the 50th Legislature, Regular Session, page 1049, Vernon’s Annotated Code of Criminal Procedure, Article 781b, authorized probation in misdemeanor cases. At that time there were no sentences imposed in any misdemeanor cases. This Court held that since the constitutional provision allowing probation referred only to sentences it did not apply to misdemeanor cases because in those only judgments were entered. See Ex parte Waggoner, 276 S.W.2d 106 (Tex. Cr.App.1954).

In Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954), the Court noted that Ex parte Hayden, supra, held that the adult probation law had no application except in those cases where a sentence had been made mandatory by the Legislature and followed that case. Neither case has ■been overruled.

As construed by this Court thirty years ago and until this case, there is a great difference between a judgment and a sentence.

Following the Hayden and other cases, relator was not entitled to have the judgments treated as one sentence. This Court held the statute that treated the judgment as a sentence was unconstitutional.

The majority apparently thinks it bad that the original opinion discussed something not raised in appellant’s brief. The writer knows of no rule that this Court is bound by any brief in discussing the law applicable to a case. If discussing a matter not raised in the brief is wrong, why does the majority discuss the question of indi-gency which was not raised in appellant’s brief?

The writer of the majority opinion has often discussed matters not raised by the brief. One interesting example is found in Lechuga v. State, 532 S.W.2d 581 (Tex.Cr. App.1975). In that case the trial court found the defendant guilty and assessed punishment at three years’ confinement. At the defendant’s request a motion for new trial was granted. The same judge then assessed punishment at five years, probated. Lechuga was apparently happy to get it because he did not appeal. After probation was granted, Lechuga committed several crimes and because of these his probation was revoked. He appealed from the order revoking probation. The majority of the then five judge Court held that the punishment of five years’ probation was more than three years’ confinement in the Department of Corrections and reversed the conviction. This was a matter not raised in the brief.

When a federal prisoner is placed in a county jail, he is still a federal prisoner. Can the sheriff give him credit for good time?

When a city prisoner is placed in a county jail for an unpaid fine, he is still a city prisoner. Under the majority ruling a double standard is created. One in custody for a fine set in a municipal court and who is confined in a city jail does not get good time credit from the sheriff. Where, as in this case, there is a contract with a county to handle prisoners for a city until their fines are paid, the majority allows good time credit not allowed to the vast majority of those convicted in city courts because they are in different jails. Should a city prisoner in a county jail have more rights than a city prisoner in a city jail?

*111For the reasons stated in the opinion on original submission and here, the relief sought should be denied.