dissenting.
Appellant was convicted on March 31, 1982 of delivery of a controlled substance, to-wit: cocaine, on his plea of guilty before the court. The punishment was assessed at 10 years’ imprisonment and a fine of $10,000.00. Sentence was imposed on the same date. No appeal was taken. On the same date the trial judge wrote the Department of Corrections that appellant was a candidate for shock probation, but that possibility was being kept from the appellant in accordance with the Department’s recommendation.1
On May 13, 1982, appellant’s counsel filed a motion for shock probation, 43 days after the imposition of sentence on March 31, 1982. The motion expressly recognized that the court did not have jurisdiction until the 60th day after sentence under Article 41.12, § 3e(a), Y.A.C.C.P., to grant shock probation, and therefore requested the court to set a hearing “on or after June 1, 1982” and at the hearing to grant the appellant shock probation.
On May 27, 1982, the 57th day after sentencing, the trial judge entered an order granting shock probation stating he was acting pursuant to appellant’s motion. There does not appear to have been a hearing or any indication that counsel for the State or appellant were present when the order was entered. Appellant was returned to Tom Green County on June 2, 1982 and released on shock probation subject to certain conditions contained in the order of May 27, 1982.
On January 26, 1983, the State filed a motion to revoke probation alleging that on or about the same date appellant committed the offense of driving a motor vehicle upon a public road while intoxicated. Subsequently on March 9, 1983, a hearing was conducted on said motion. The appellant entered a plea of “true” to the motion’s allegations. Evidence was heard. The court revoked appellant’s probation. The order in effect, setting aside the suspension of the execution of sentence of March 31, 1982, gave appellant credit only for time in actual confinement. Notice of appeal was given, and appellant was released on an appeal bond.
Appellant’s brief on appeal dated June 6, 1983 was filed in the Austin Court of Appeals on June 10, 1983. Appellant ad-*709vaneed three grounds of error. He complained the court abused its discretion in revoking probation, claiming the evidence showed that because of his drinking problem he could not conform his conduct to the requirements of the probationary conditions. He also urged he was denied equal protection of the laws because some other defendant in Tom Green County had his punishment reduced following revocation of probation.2 In his third ground he argued the court failed to give him credit for all the time on his sentence to which he was entitled, that the court acted to grant shock probation when it didn’t have jurisdiction, and he was released without any fault of his own, and he should be given credit for the time he was on shock probation.
On June 8, 1983 the trial judge (other than the judge who granted shock probation) entered an “Order Correcting Sentence” acknowledging the court had acted prematurely in granting shock probation when it did not yet have jurisdiction, and the appellant was erroneously released from the Department of Corrections, and was entitled to credit for time spent on shock probation, and while free on an appeal bond and until taken into custody by virtue of the order of that date. The appellant was ordered arrested and returned to the Department of Corrections.
Based on such order the State moved to dismiss appellant’s appeal.
The Austin Court of Appeals affirmed the conviction reforming the sentence in an unpublished per curiam panel opinion. Stasey v. State (Tex.App. — Austin 1983) (No. 3-83-109-CR). Setting aside the question of the trial court’s jurisdiction to enter the “Order Correcting Sentence” at the time and under the circumstances, the Court of Appeals held the court erred in giving appellant credit for the time he was erroneously released on shock probation and for the time he was out of custody on appeal bond following revocation of probation. The State’s motion for dismissal was denied. We granted appellant’s petition for discretionary review to determine the correctness of the Court of Appeals’ decision.
Article 42.12, § 3e(a), V.A.C.C.P., reads:
“Por the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if:
“(1) the defendant is otherwise eligible for probation under this article; and
“(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony; and
“(3) the offense for which the defendant was convicted was other than those defined by Section 19.02, 20.04, 22.021, 22.03, 22.04(a)(1), (2), or (3), 29.-03, 36.02, 38.07, 71.02 or a felony of the second degree under Section 38.10, Penal Code.
In Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979), this Court reviewed the original enactment of the shock probation law in Texas, and observed that the grant of jurisdiction to the district court was of a very limited nature. There Houlihan was granted shock probation on the 126th day after the execution of the sentence began, *710and this Court held the court had lost jurisdiction at the expiration of the 120th day as provided in the original enactment.3
In the instant case the court acted prematurely prior to acquiring jurisdiction under the statute, and we are confronted with the question of whether that should affect appellant’s claim of time credit on his sentence.
It seems well settled that where a defendant is erroneously or mistakenly released from incarceration through no fault of his own he is entitled to “flat time” credit for the time he was at liberty. Ex parte Downey, 471 S.W.2d 576 (Tex.Cr.App.1971); Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976); Ex parte Tarlton, 582 S.W.2d 155 (Tex.Cr.App.1979); Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Cr. App.1980). And this is true even if the releasing institution or official is unaware of the legal impediment to release. Ex parte Downey, supra; Ex parte Tarlton, supra, or if the release is due to a clerical mistake, Ex parte Pizzalota, supra.
It is also true, however, that if the defendant was a “moving factor” in obtaining his improper release he would not be entitled to credit in his sentence. See Ex parte Moneyhun, 161 Tex.Cr.R. 19, 274 S.W.2d 546 (1955). Moneyhun was confined for 120 days in jail as a result of three judgments. After he served 41 days, his attorney approached the county judge and requested Moneyhun’s release because of his health and on the condition he leave Taylor County. He was released and left the county, but after the expiration of the 120-day-period he returned. The County Judge then ordered him re-arrested and confined to serve the balance of 120 days not previously served. A district judge refused habeas corpus relief and Moneyhun appealed. This Court stated the record was not sufficient to show the County Judge acted under Article 137, V.A.C.C.P. (1925), for health reasons, and decided the case upon the void condition that Moneyhun left the county.
After distinguishing between Ex parte Griffin, 158 Tex.Cr.R. 570, 258 S.W.2d 324 (1953), and Ex parte Morgan, 159 Tex. Cr.R. 241, 262 S.W.2d 728 (1953), on one hand, and Ex parte Wyatt, 29 Tex.App. 398, 16 S.W. 301 (1891), on the other hand, this Court held that when Moneyhun’s attorney requested his release he (Moneyhun) became the moving factor and could not take advantage of a void order on the part of the county judge. See also Ex parte Williams, 301 S.W.2d 84 (Tex.Cr.App. 1957).4
The principle of Moneyhun was later applied in Ex parte Massie, 278 S.W.2d 851 (Tex.Cr.App.1955). Massie applied for probation, but was convicted and given “straight time.” His conviction was affirmed on appeal. The mandate of this Court issued. However, the trial court then granted probation for the first time. In Massie this Court held the trial court was without authority to grant probation after issuance of the mandate, and Massie was not entitled to credit for time served on the illegally granted probation. Money-hun was extensively stretched by saying Massie was the moving factor in release on probation after issuance of the mandate because he had filed a pre-trial motion for probation. This was so the court noted because it was incumbent upon the applicant to exclude himself from the rule announced in Moneyhun, and the record was silent as to whether release on probation after the issuance of the mandate was the direct independent action of the judge or upon a subsequent request for probation by Massie.
*711In Adams v. State, 610 S.W.2d 780 (Tex.Cr.App.1981), relied upon by the Court of Appeals in the instant case, this Court applied the rule of Moneyhun. There, after Adams was convicted and incarcerated, he timely filed for “shock probation” more than 60 days after sentencing.5 However, he was not released on shock probation until after the court had lost jurisdiction to grant such a motion. Further, Adams was not eligible for shock probation in view of the conviction for involuntary manslaughter for which the statute prohibits “shock probation.” Thus the rule of Moneyhun was applicable since Adams was a moving factor in obtaining an improper grant of probation.
Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981), involved a bevy of miscues. Tamez filed a pretrial motion for probation without a specific request for “shock probation.” Following his guilty plea before the court, he was assessed a punishment of five years’ imprisonment and a $5,000.00 fine. In sentencing on the same day as the plea of guilty, the court granted “shock probation” before it had jurisdiction to do so. It then attempted to sentence Tamez to not less than 60 nor more than 120 days in the Department of Corrections. When the court did release Tamez on “shock probation,” it was after the court had lost jurisdiction to do so. In holding Tamez was not entitled to credit on his sentence while on probation, the Court cited Adams.
In the instant case the appellant Stasey’s attorney filed a motion for “shock probation” before the court had the authority to grant shock probation, but the motion recognized the situation and expressly requested the court to grant the motion on or after the 60-day-period set by statute.
At the outset it should be observed that appellant was eligible for shock probation under the statute in question. And it is clear that while Article 42.12, § 3e, V.A.C. C.P., related to the time limitations upon the court’s jurisdiction to grant probation, it places no limitations upon the filing of a motion for shock probation. The appellant cannot be faulted by the fact his counsel filed a motion prior to the time the court acquired jurisdiction to act, particularly where the motion specifically requested action only after the court acquired jurisdiction. Appellant did not ask for that to which he was not entitled. The court, without the appellant being present, granted the motion prematurely. Appellant was not released from the Department of Corrections until June 2, 1982 and then returned to Tom Green County and was placed on probation more than 60 days after sentencing.
The appellant did not request an improper act. While he acted through his attorney, he was not, under the circumstances, a moving factor in the court’s premature action. I would hold that appellant is entitled to credit on his sentence from May 27, 1982 until June 2, 1982, because he was still in confinement on those dates, and that he is entitled to credit for the time he was at liberty on probation, but he is not entitled to the credit for time at liberty on the appeal bond. Ex parte Allen, 548 S.W.2d 905 (Tex.Cr.App.1977); Tamez v. State, supra.
Thus I would reform the judgment of the Court of Appeals accordingly, and for the same reason dissent from the majority’s opinion whose views as to reform of judgment of the Court of Appeals differs.
CLINTON, J., joins this opinion.. The appellant had filed no motion for probation prior to his guilty plea.
. There is no evidence in the record to support such assertions found only in the appellant’s brief.
. Article 42.12, § 3e(a), was amended in 1981 to extend the court’s jurisdiction from the 60th day to the expiration of 180 days, giving the trial courts 60 more days than it had under the original enactment.
. In Griffin the Court was careful to point out that by no conduct on Griffin’s part did he escape confinement. In Morgan the Court observed Morgan was not personally a moving factor in securing his release which resulted from a secret agreement between prisoner’s parents and the judge. In Wyatt the prisoner remained at large at his own request.
. While the Adams opinion does not reflect, an examination of the record in that case shows Adams was sentenced on March 27, 1978, and the motion for shock probation was filed on July 6, 1978, and granted on August 7, 1978.