Tolnay v. Duggan ( 1973 )

PEDEN, Justice.

On February 14, 1973, the relator was found guilty by a jury, in Cause No. 150,091, of the offense of unlawfully possessing the narcotic drug of heroin. His punishment was assessed at confinement for life in the Texas Department of Corrections.

Sentence was pronounced by Judge Dug-gan on March 23, 1973 and on the same day the relator gave notice of appeal; on October 16, 1973, while his appeal was still pending, the relator filed a written motion in compliance with the provisions of Section 6.01(c) of the Texas Controlled Substances Act, Article 725f, Vernon’s Ann. Texas Penal Code, asking that he be sentenced under the terms and provisions of that act.

On October 31, 1973, while the relator’s appeal to the Texas Court of Criminal Appeals was still pending, Judge Duggan denied the relator’s request to be sentenced under the Controlled Substances Act. He asks that we issue a writ of mandamus ordering Judge Lee Duggan, Jr. to sentence him under the terms of that Act.

We hold that we have jurisdiction of this case on authority of Hogan v. Turland, 428 S.W.2d 316 (Tex.1968).

However, we are in agreement with the holding of the Texas Court of Criminal Appeals on December 5, 1973 in Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774, holding that the provision of Section 6.01(c) of the Texas Controlled Substances Act relating to criminal action pending on appeal on its effective date (August 27, 1973), is unconstitutional since it is violative of Article IV, Sec. 11 of our Constitution, Vernon’s Ann.St.

The application for writ of mandamus is denied.