AINSWORTH, Circuit Judge:
This is an appeal by Jack Shields from denial of habeas corpus. Appellant was convicted in Gray County, Texas, for two felonies, on May 18 and 19, 1933, respectively, and sentenced to 10 years' imprisonment in each case to run consecutively. On November 28, 1933, he was convicted in Wheeler County, Texas, for a felony and sentenced to an additional term of 20 years to run consecutively to the first two convictions, a total of 40 years. On December 5, 1934, after serving slightly more than 1 year of his 40-year term, the
Following the latest Texas conviction Shields applied for a writ of habeas corpus to the Texas Court of Criminal Appeals because of his continued incarceration under the three 1933 Texas convictions. Ex parte Shields, Tex.Cr.App., 1963, 371 S.W.2d 395. Certiorari was denied by the United States Supreme Court, Shields v. Texas, 379 U.S. 860, 85 S.Ct. 119, 13 L.Ed.2d 63 (1964).
In the present petition for habeas corpus Shields alleges that he is entitled to his release and his continued incarceration under the 1933 Texas convictions is in violation of his rights under the due process clause of the Fourteenth Amendment of the United States Constitution.
The question we must decide is whether after more than 28 years of inaction on the part of the State of Texas relative to the unexpired term of Shields's 1933 convictions, he may now on conviction of a new felony in Texas be required to serve the balance of time on these old sentences. Do the circumstances of this case, therefore, offend the constitutional precepts of due process stated in the Fourteenth Amendment?
The due process clause of the Fourteenth Amendment requires that action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice. Buchalter v. People of the State of New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L. Ed. 1492 (1943). It exacts from the states a conception of fundamental justice. Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955 (1947).
As far back as 1902, in the case of In re Jennings, 118 F. 479, a federal circuit court in Missouri recognized that delay in execution of a sentence is repugnant to the law.
In Ex parte Bugg, 1912, 163 Mo.App. 44, 145 S.W. 831, the defendant was convicted in two cases involving illegal sale of liquor, and after having served a short time in prison under the first sentence, the court suspended that sentence because of defendant's failing health, and he was released from custody. Nothing was done at the time about the sentence imposed in the second case. Approximately 3 years later he was arrested and imprisoned on the sentence imposed in the second case. The court ordered his release, although recognizing the general rule that absent a statutory provision a jail sentence can be satisfied only by compliance with its terms, and held that delay in imprisonment occasioned by the sentencing court itself could bar enforcement of a criminal judgment. The court said:
In Thompson v. Bannan, 6 Cir., 1962, 298 F.2d 611, petitioner was surrendered to Illinois authorities by Michigan authorities and upon acquittal in Illinois was extradited and convicted in Michigan. The Sixth Circuit affirmed the district court's denial of habeas corpus because at the time petitioner was surrendered to Illinois the charge in Michigan was still pending and consequently there could have been no implied pardon or commutation of a sentence which had not yet been imposed. However, the court distinguished the case from "those cases where the prisoner was surrendered to a sister state while serving a sentence after conviction." The court said that "A release by the governor under such circumstances is sometimes considered to be in effect a pardon of the remainder of the sentence. Ex parte Guy, 41 Okl.Cr. 1, 269 P. 782. In In re Jones, 154 Kan. 589, 121 P.2d 219, under similar facts it was held to be a commutation of sentence." The Sixth Circuit also said in its opinion:
In Jones v. Rayborn, 346 S.W.2d 743, 747, the court disagreed with the state's theory that "the right to pardon or commute sentence is given to the Governor alone and not to lesser officials," a contention made by Texas in the present case. The court said (346 S.W.2d at 747):
Rayborn differs from the present case in that the prisoner was extradited against his will from a state to a federal penitentiary before expiration of his state term and restrained after he had served sufficient time for eligibility for parole under state law. The Kentucky appellate court ordered the prisoner's release, affirming a lower court holding that Kentucky had waived jurisdiction by turning Rayborn over to federal custody before expiration of his state sentence.
In People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935 (1943), the court held that where a prisoner was transferred to Wisconsin while imprisoned in Illinois, he could not be required to return to Illinois to serve the balance of the sentence owed to that state and the action of the Governor of Illinois in extraditing him to Wisconsin operated to waive any further jurisdiction over the prisoner.
Thus we hold that the extraditing of Shields to Louisiana authorities and the release by Texas of the prisoner before expiration of his sentence constituted a waiver of jurisdiction over Shields, especially where the surrendering
The lack of interest in Shields by the State of Texas from the date he was released to the Louisiana authorities in 1934 until 1962 when again convicted in Texas, a lapse of more than 28 years, was equivalent to a pardon or commutation of his sentence and a waiver of jurisdiction. The Jasper County state judge, therefore, lacked authority to require Shields to complete service of the sentences under the old 1933 convictions, which action constituted a denial of due process under the Fourteenth Amendment to the United States Constitution.