(dissenting).
When this case was originally submitted, Judge Dice prepared the following opinion which I approved:
“This is an application for writ of habeas corpus, presented to the Honorable John F. Onion, Jr., Judge of the 175th Judicial District Court of Bexar County, in which relator alleges that he is being .illegally restrained of his liberty by the director of the Texas Department of Corrections, by virtue of two judgments of conviction rendered against him on February 7, 1963, in said 175th Judicial District Court.
“After presentation of the application, Judge Onion conducted a hearing thereon, under the provisions of Art. 119, V.A.C.C. P., and developed the facts which have been certified to this court, together with the return of the writ, for our final determination.
“The facts, as certified, reflect that on April 2, 1960, the relator killed his parents, William C. Sawyer and Marjory Sawyer, by shooting them with a gun. On such date, relator was fifteen years of age, having been born on the 17th day of August, 1944.
“On April 5, 1960, a petition was presented to the Honorable Joe Frazier Brown, Judge of the 150th District Court of Bexar County, by the criminal district attorney, in cause #12927, alleging that relator was a delinquent child and praying that he be so adjudged. In the petition it was alleged that the facts which constituted the relator a delinquent child were:
“ ‘Said child has violated the penal code of the State of Texas of the grade of felony.’
“On May 5, 1960, after notice and hearing, an order was entered in the cause by Judge Brown, sitting as a juvenile court, declaring the relator a delinquent child and committing him to the care, custody, and control of the Texas Youth Council ‘for an indeterminate period of time not to exceed the time he shall have become twenty-one years of age.’
“After the entry of such order, relator was confined in the State School for Boys, at Gatesville until November 30, 1962, when he was arrested and taken into custody by the sheriff of Bexar County under a bench warrant issued by the judge of the 175th Judicial District Court of Bexar County, in cause #S-61553 on the docket of said court, styled The State of Texas v. Richard *279Sawyer, wherein the said defendant stood charged by indictment with the offense of murder with malice.
“On February 7, 1963, the relator, being at such time over seventeen years of age, entered his pleas of guilty to the indictments returned into the 175th Judicial District Court on November 28, 1962, in causes #S-61553 and S-61554, styled the State of Texas v. Richard Sawyer, charging him with the murder of his parents, and was assessed punishment in each case at confinement in the penitentiary for ten years. The sentence pronounced in each case provided :
“ ‘Said sentence to begin and operate from and after the 30th day of November, 1960, the date of defendant’s incarceration.’
“It is shown that it is under these two judgments of conviction that relator is now confined in the Texas Department of Corrections.
“From the record it affirmatively appears that relator’s convictions after attaining the age of seventeen years, in causes #S-61553 and S-61554, for the murder of his parents were for the same acts and offenses for which he had been previously adjudged a delinquent child and confined in the Gatesville State School for Boys. We need not discuss the question raised by the state with reference to the sufficiency of the petition filed by the district attorney to declare the relator a delinquent child, in view of the court’s action thereon declaring him a delinquent child and his subsequent confinement in the Gatesville State School for Boys under such order.
“In Garza v. State, 369 S.W.2d 36, in an appeal from Bexar County, we held that the conviction of a defendant for murder violated principles of fundamental fairness and a deprivation of due process where prior to the conviction, which occurred after the defendant reached the age of seventeen ' years, upon petition of the district attorney the defendant had been adjudged a delinquent child on the basis of the same act of murder and had been held in custody as a delinquent child.
“The principles announced in the Garza case are here applicable and require that relator be ordered discharged from confinement under the judgments rendered against him on February 7, 1963, in the 175th Judicial District Court of Bexar County, in cause #S-61553 and S-61554, styled the State of Texas v. Richard Sawyer on the docket of said court.
“It is so ordered.”
I cannot bring myself to agree that there is a valid substantial distinction between this case and Maximino Garza’s case. In both cases the youths were confined in the State School for Boys for the offense for which they were later tried. If it violated fundamental fairness and constituted a deprivation of due process to indict, try and convict Garza for the identical offense for which he had been committed as a juvenile, then it surely violated fundamental fairness and constitutes a deprivation of due process to deny relief to this relator, who like Garza had committed no other offense against the law.
I vigorously dissent to the order denying relief herein just as I dissented to the affirmance of Mike Martinez’s conviction in 1961 (Martinez v. State, 171 Tex.Cr.App. 443, 350 S.W.2d 929) and Ex parte Martinez, Tex.Cr.App., 386 S.W.2d 280.