Ex parte Lewis

339 S.W.2d 206, 170 Tex. Crim. 139, 1960 Tex. Crim. App. LEXIS 2112

Opinion

DAVIDSON, Judge.

Relator is confined in the penitentiary of this state, serving a term of five years in each of four cases assessed against him in the district court of Montgomery County.

Not having been cumulated, the sentences ran concurrently.

Some three months thereafter, the penitentiary authorities were notified that the sentences had been “corrected” to run cumulatively. Upon that information, the penitentiary authorities changed their records to show that the sentences were cumulative.

Relator is now confined in accordance with that cumulation.

The penitentiary authorities certify that relator is now credited with more than five years’ service in the penitentiary.

It follows that unless the order of cumulation was valid and lawfully entered, relator, having served the time assessed, is entitled to be discharged.

When relator’s petition for the writ of habeas corpus was filed in this court evidencing the foregoing facts, we ordered the petition referred to the judge of the trial court, under the provision of Art. 119, Vernon’s C.C.P., as amended, to develop the facts as to the order of cumulation.

Although ample and sufficient time has elapsed, we have not been furnished with evidence that the sentences were validly cumulated. We must therefore assume that they were not.

It follows that since relator has served the sentences imposed upon him he is entitled to be discharged from any further confinement thereunder.

It is so ordered.