ON STATE’S MOTION FOR REHEARING
DICE, Commissioner.In its motion for rehearing, the state insists that we were in error in holding the appellant’s conviction in violation of the 'principles of fundamental fairness and a deprivation of due process under the Fourteenth Amendment, but contends in oral argument that the proceedings in juvenile court constituted former jeopardy.
It is argued that if the reversal on the ground of fundamental fairness and deprivation of due process is allowed to stand, the cases of Wood v. State, Tex.Cr.App., 349 S.W.2d 605; Martinez v. State, Tex.Cr.App., 350 S.W.2d 929; Perry v. State, Tex.Cr.App., 350 S.W.2d 21, and Hultin v. State, Tex.Cr.App., 351 S.W.2d 248, should be *43expressly overruled. With such contention we do not agree.
In the Wood, Perry, and Hultin cases, and, as found by the majority in the Martinez case, the conviction and resulting restraint of each accused was for a different act and offense from that for which he had been previously adjudged a delinquent child. Under such facts, the convictions and restraint thereunder did not violate the principles of fundamental fairness and constitute a deprivation of due process.
In the present case it is undisputed that the appellant’s conviction for murder is for the same act and offense for which he was, upon petition of the district attorney, adjudged a delinquent child and confined in the state school for boys. Under such facts, the conviction does violate the principles of fundamental fairness and constitutes a deprivation of due process and equal protection of the law.
Responding to the inquiry of the district attorney, we are aware of no reason why the appellant may not be returned to the custody of the Texas Youth Council.
Remaining convinced that a proper disposition was made of the case on original submission, the state’s motion for rehearing is overruled,
Opinion approved by the Court.