Ex Parte Fennell , 162 Tex. Crim. 286 ( 1955 )

DAVIDSON, Judge (dissenting).

Being unable to agree to the affirmance of this case, I respectfully enter my dissent.

The penalty assessed against relator was two years’ confinement in the penitentiary, beginning June 12, 1953, and, of necessity, ending on June 12, 1955.

The order revoking probation was not entered until June 16, 1955, or four days after the expiration of the sentence.

The sentence having expired, there was no probation of that sentence to revoke. The probation, as well as the power to revoke probation, had ceased to exist.

The authorities cited by my brethren touching the right to revoke probation during the probationary period have no application therefor, and are not controlling where the sentence has expired.

If the probation was to be revoked, it should have been done while the sentence was in force and effect and not after its expiration.