In Re Portwood

FRIEDMAN, J.

Petitioner is a prisoner at Folsom State Prison. He seeks a writ of habeas corpus to secure his delivery to the prison authorities of Texas, there to complete a partially served Texas sentence.

Petitioner was paroled from a Texas prison in September 1959 with 2 years, 10 months and 25 days of a robbery sentence yet unserved. Less than five months later, on March 23, 1960, he was sentenced by the San Diego Superior Court on one count of first degree robbery and two counts of assault with a deadly weapon. Meanwhile, on March 10, 1960, the Texas authorities revoked his parole and indicated that he was “wanted” as a parole violator.

At the time of sentencing petitioner the San Diego judge was aware of the incompleted Texas sentence. In sentencing petitioner the judge signed a printed form of judgment with typed insertions. We quote from that judgment, italicizing the typed insert: “It is ordered that sentences shall be served in respect to one another as follows

And that the sentence in this case shall run concurrently with relation to Counts Nos. 1, 2 and 3, and as to each other,

and in respect to any prior incomplete sentence(s) as follows:

(Note whether concurrent or consecutive as to each count) ;

(Note whether concurrent or consecutive as to all incomplete sentences from other jurisdictions) ; ”

We note particularly that the trial judge did not make any entry in the last blank space.

Apparently, under Texas law, petitioner cannot receive Texas credit for time served under a California judgment entered following the imposition of the Texas sentence.

(Ex parte Spears,

154 Tex.Crim.Rep. 112 [235 S.W.2d 917, 18 A.L.R.2d 507].) He contends that under California law and by the legal effect of the California judgment, he will be

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entitled to California credit for time served in Texas; hence, his effort to gain readmission to the Texas prison system.