[302]*302DAVIDSON, Judge.
This is an original application for the writ of habeas corpus, by which relator seeks his discharge from the penitentiary of this state, where he claims he is illegally restrained under a void judgment and sentence.
We granted the filing of the application and directed the development of the facts, as provided and contemplated by Art. 119, C. C. P., as amended.
The facts developed are now before us.
Relator was charged in the 53rd Judicial District Court of Travis County, by indictment, with the offense of felony theft.
On March 7, 1952, the case came on for trial and, as relator had no counsel, the trial court appointed counsel to represent him. Thereafter, relator in person and through his counsel waived trial by jury and entered his plea of guilty, and sought a suspended sentence. All procedural requisites to a plea of guilty were complied with. The relator introduced evidence in support of the application for suspended sentence.
At the close of the testimony, the trial court took the case under advisement as to the suspension of sentence. What happened thereafter is best shown by quoting from the testimony of the trial judge, as follows:
“I got off the bench and went down and sat down with him (relator) and his attorney, and Mr. Blackwell, Assistant District Attorney, stood by, and I talked to this man and told him that I was not satisfied with his application for suspended sentence and that I didn’t think that I would grant it; that I didn’t think he was the type of man for whom a suspended sentence was intended; that it appeared he was an alcoholic, an habitual drunkard, and that he was not doing any good in this community, and that I would not suspend his sentence and let him stay in this community because I thought he would not be able to get along any better in the future than he had in the past. But I said to him, ‘If I do grant you a suspended sentence in this case would you go back home to McKinney, where you say you have lived, and take care of your mother and father, who are in bad circumstances, and would you go at once if I ordered you released?’ And he said, ‘Yes, sir, that is exactly what I have in mind doing, and if released I will go home at once.’ I then turned to [303]*303Mr. Blackwell and said, ‘Well, if he will do that I believe that might be a good solution of this case. If he will go back to McKinney and stay there as he promised me he will, I believe I will consider doing that.’ Mr. Blackwell agreed with me that that might be agreeable, and Mr. Darrouzet thought that was a good solution, and that the condition was a reasonable condition to put on the suspended sentence. I then said, T will do that/ and I got back on the bench and said, T will accept the State’s recommendation of five years and suspend it/ and I recognized him in the'sum of $1,000 and ordered him released so that he could go back to McKinney. He certainly could not go back as long as he was held in jail without bond. I made the discharge conditioned on his leaving at once. He was discharged by the sheriff’s office, and I later signed a little memorandum on the docket sheet, which is a printed form rather than writing it out each time. I signed that at that time just as a notation.”
A few days thereafter, the trial judge learned of the fact that relator had not “left town” as he had agreed, but was still in Austin and had been arrested for drunkenness. The trial court ordered relator into court and his appointed attorney also appeared. We again quote from the testimony of the trial judge as to what then occurred:
“I said, ‘You have forgotten what you have told me, and I am going to forget what.I told you. Everything I did was conditioned on your leaving Austin and going back to McKinney. I have not written up the judgment, and I believe it is not a judgment, because you misrepresented your intentions, and I only released you for the purpose of leaving town, and you have not left town, and I don’t think you intend to leave town; therefore, I am going back to where we started here. I heard your case and I found you guilty, and the evidence shows that you were guilty, and I am not going to give you a suspended sentence, and am sentencing you to serve some time in the penitentiary for your own good and for the good of the community. I believe it will be better for you to go down there than stay here and be drunk and harrass the officers of this Court under the signature of a District Judge giving you a suspended sentence for five years; and if I have anything to say about it I am going to see that you go to the penitentiary. I will change the judgment from five years to two years, because I intended to make it two years at first. I will give you the judgment that I intended to give you when you told me that you would leave town and I agreed to the suspended sentence.’ ”
[304]*304Thereupon, the trial court sentenced relator to a term of two years in the penitentiary.
As to the entry of the suspended sentence, the record discloses that in cases such as the one here presented where the trial court concludes that the suspended sentence should be awarded, it was the custom to use a printed form so showing, which the trial court signs and attaches to the docket sheet— thereby dispensing with the necessity of copying the order on the docket sheet. Such procedure was here followed.
The order attached to the docket sheet and signed by the trial court shows that relator’s punishment was fixed at five years in the penitentiary, and was suspended, in the following language:
“And it further appearing to the Court that defendant has never before been convicted of a felony in this or any other State, his Sentence is suspended during his good behavior, and defendant duly recognized in the sum of $1,000, and he is Ordered released from custody.”
This order bears the signature of the trial judge.
When the trial judge revoked the suspended sentence, he changed the figure, “5,” in the order to read, “2,” as denoting the term to be served in the penitentiary, and drew a line through that part of the order which is above quoted. Relator was then sentenced to serve two years in the penitentiary, which term he is now serving.
The question before us narrows itself to a determination of whether the trial court suspended relator’s sentence, in the first instance, under what is known as the suspended sentence law (Art. 776a, Vernon’s C. C. P.).
A suspended sentence may be set aside and sentence imposed only upon a subsequent conviction for a felony or any of the offenses enumerated in Arts. 777 and 778, C. C. P.
There being no evidence that relator had been subsequently convicted of any of the offenses there named, the right to revoke the suspended sentence is not here shown if, in fact, the sentence was suspended. So the question, then, is whether this record reveals that the sentence was suspended under the suspended sentence law of this state.
[305]*305The record reveals that all the requisites of the suspended sentence law were complied with — i.e., the filing of the sworn application, and the introduction of the necessary proof thereunder. Further, the trial court entered the order expressly suspending the sentence and required relator to enter into a recognizance in the sum of $1,000.
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[302]*302DAVIDSON, Judge.
This is an original application for the writ of habeas corpus, by which relator seeks his discharge from the penitentiary of this state, where he claims he is illegally restrained under a void judgment and sentence.
We granted the filing of the application and directed the development of the facts, as provided and contemplated by Art. 119, C. C. P., as amended.
The facts developed are now before us.
Relator was charged in the 53rd Judicial District Court of Travis County, by indictment, with the offense of felony theft.
On March 7, 1952, the case came on for trial and, as relator had no counsel, the trial court appointed counsel to represent him. Thereafter, relator in person and through his counsel waived trial by jury and entered his plea of guilty, and sought a suspended sentence. All procedural requisites to a plea of guilty were complied with. The relator introduced evidence in support of the application for suspended sentence.
At the close of the testimony, the trial court took the case under advisement as to the suspension of sentence. What happened thereafter is best shown by quoting from the testimony of the trial judge, as follows:
“I got off the bench and went down and sat down with him (relator) and his attorney, and Mr. Blackwell, Assistant District Attorney, stood by, and I talked to this man and told him that I was not satisfied with his application for suspended sentence and that I didn’t think that I would grant it; that I didn’t think he was the type of man for whom a suspended sentence was intended; that it appeared he was an alcoholic, an habitual drunkard, and that he was not doing any good in this community, and that I would not suspend his sentence and let him stay in this community because I thought he would not be able to get along any better in the future than he had in the past. But I said to him, ‘If I do grant you a suspended sentence in this case would you go back home to McKinney, where you say you have lived, and take care of your mother and father, who are in bad circumstances, and would you go at once if I ordered you released?’ And he said, ‘Yes, sir, that is exactly what I have in mind doing, and if released I will go home at once.’ I then turned to [303]*303Mr. Blackwell and said, ‘Well, if he will do that I believe that might be a good solution of this case. If he will go back to McKinney and stay there as he promised me he will, I believe I will consider doing that.’ Mr. Blackwell agreed with me that that might be agreeable, and Mr. Darrouzet thought that was a good solution, and that the condition was a reasonable condition to put on the suspended sentence. I then said, T will do that/ and I got back on the bench and said, T will accept the State’s recommendation of five years and suspend it/ and I recognized him in the'sum of $1,000 and ordered him released so that he could go back to McKinney. He certainly could not go back as long as he was held in jail without bond. I made the discharge conditioned on his leaving at once. He was discharged by the sheriff’s office, and I later signed a little memorandum on the docket sheet, which is a printed form rather than writing it out each time. I signed that at that time just as a notation.”
A few days thereafter, the trial judge learned of the fact that relator had not “left town” as he had agreed, but was still in Austin and had been arrested for drunkenness. The trial court ordered relator into court and his appointed attorney also appeared. We again quote from the testimony of the trial judge as to what then occurred:
“I said, ‘You have forgotten what you have told me, and I am going to forget what.I told you. Everything I did was conditioned on your leaving Austin and going back to McKinney. I have not written up the judgment, and I believe it is not a judgment, because you misrepresented your intentions, and I only released you for the purpose of leaving town, and you have not left town, and I don’t think you intend to leave town; therefore, I am going back to where we started here. I heard your case and I found you guilty, and the evidence shows that you were guilty, and I am not going to give you a suspended sentence, and am sentencing you to serve some time in the penitentiary for your own good and for the good of the community. I believe it will be better for you to go down there than stay here and be drunk and harrass the officers of this Court under the signature of a District Judge giving you a suspended sentence for five years; and if I have anything to say about it I am going to see that you go to the penitentiary. I will change the judgment from five years to two years, because I intended to make it two years at first. I will give you the judgment that I intended to give you when you told me that you would leave town and I agreed to the suspended sentence.’ ”
[304]*304Thereupon, the trial court sentenced relator to a term of two years in the penitentiary.
As to the entry of the suspended sentence, the record discloses that in cases such as the one here presented where the trial court concludes that the suspended sentence should be awarded, it was the custom to use a printed form so showing, which the trial court signs and attaches to the docket sheet— thereby dispensing with the necessity of copying the order on the docket sheet. Such procedure was here followed.
The order attached to the docket sheet and signed by the trial court shows that relator’s punishment was fixed at five years in the penitentiary, and was suspended, in the following language:
“And it further appearing to the Court that defendant has never before been convicted of a felony in this or any other State, his Sentence is suspended during his good behavior, and defendant duly recognized in the sum of $1,000, and he is Ordered released from custody.”
This order bears the signature of the trial judge.
When the trial judge revoked the suspended sentence, he changed the figure, “5,” in the order to read, “2,” as denoting the term to be served in the penitentiary, and drew a line through that part of the order which is above quoted. Relator was then sentenced to serve two years in the penitentiary, which term he is now serving.
The question before us narrows itself to a determination of whether the trial court suspended relator’s sentence, in the first instance, under what is known as the suspended sentence law (Art. 776a, Vernon’s C. C. P.).
A suspended sentence may be set aside and sentence imposed only upon a subsequent conviction for a felony or any of the offenses enumerated in Arts. 777 and 778, C. C. P.
There being no evidence that relator had been subsequently convicted of any of the offenses there named, the right to revoke the suspended sentence is not here shown if, in fact, the sentence was suspended. So the question, then, is whether this record reveals that the sentence was suspended under the suspended sentence law of this state.
[305]*305The record reveals that all the requisites of the suspended sentence law were complied with — i.e., the filing of the sworn application, and the introduction of the necessary proof thereunder. Further, the trial court entered the order expressly suspending the sentence and required relator to enter into a recognizance in the sum of $1,000.
The conclusion is expressed that the relator’s sentence was suspended under the suspended sentence law of this state. We do not have here a case where the trial court suspended either the imposition or the execution of sentence as authorized under the provisions of the Adult Probation and Parole Law. The requisites necessary to a suspended sentence under the suspended sentence law have no application to the Adult Probation and Parole Law. The right of parole or probation under that law is entirely at the will or wisdom of the trial judge.
The record before us does not warrant the conclusion that the trial court suspended the imposition or the execution of sentence under the Adult Probation and Parole Law (Art. 781b, Vernon’s C. C. P.).
No authority existed under the suspended sentence law for the trial court to set aside that suspension because the relator did not keep his agreement to “leave town” and go to McKinney.
In cases where the imposition of sentence is suspended under the Adult Probation and Parole Law, the trial court may place limitations thereon as provided in Art. 781b, Vernon’s C. C. P., but such is not true where sentence is suspended under the suspended sentence law — for, there, the suspended sentence may be revoked only by the subsequent conviction of the accused for any offense named.
From what has been said, the conclusions reached are, viz.: (a) The trial court suspended relator’s sentence under the suspended sentence law. (b) Relator has not been subsequently convicted of any offense that would authorize the suspended sentence to be revoked, (c) The sentence imposed after the attempted revocation was without authority in law, and is void.
In view of the dissenting opinion herein, we call attention to the last paragraph of Sec. 34 of Art. 781b, Vernon’s C. C. P., the Adult Probation and Parole Law, which reads as follows:
“However, nothing in this Act shall be construed as repeal[306]*306ing Article 776, through 781 of Vernon’s Annotated Statutes, Code of Criminal Procedure; commonly known as the Suspended Sentence Law.”
By this statute the legislature expressly recognizes the two separate and distinct procedures. In our judgment, the instant case is controlled by the suspended sentence law.
Accordingly, the relief prayed for is granted and relator is ordered discharged from the custody of the penitentiary authorities under the sentence above mentioned.
The suspended sentence and relator’s recognizance thereunder remain in full force and effect.
Opinion approved by the court.