The opinion
CLINTON, Judge,
concurring.
With deference, I suggest both the habe-as court below and this Court have misinterpreted the terms of a plea bargain, which all concede was made. 1 Petitioner states under oath that the bargain was to be effectuated by releasing him into federal custody. A purported copy of a letter from his appointed attorney to the affected federal probation officer confirms that understanding. 2
Both the judgment and sentence make clear that the five year sentence imposed by the state court was “to run concurrent with” the four year sentence levied by the federal court. The decisions examined by the Court establish that petitioner is not receiving and may not receive credit on his federal sentence while actually confined by Texas to serve the state sentence. Thus, it is his present incarceration which violates the plea bargain.
The Court declines to “order specific enforcement of the plea bargain” it understands was made, desiring not to “interfere with the discretion exclusively within the province of the United States Parole Commission.” However, the federal detainer lodged with the Texas Department of Corrections against petitioner reflects a request by the United States Marshal for the Southern District of Texas in Houston — not too many miles away — that a TDC official notify his office when petitioner is to be released from custody “so that we may assume custody if necessary.” Obviously, then, the federal authorities are standing by, so to speak, waiting for Texas officials; just as patently this Court has the power and authority in a post-conviction habeas corpus proceeding to order that petitioner be released from what is found to be illegal confinement by TDC. The natural consequence would be implementation of the federal detainer by the United States Marshal taking custody of petitioner. Such an order would not “interfere with the discretion” of the Parole Commission — it may impel the Commission to exercise that discretion, however.
Nevertheless, with the Court taking the plea bargain reported by the habeas judge and finding that one is not enforceable, as indeed it is not, the relief granted by the Court will permit the matter to be sorted out at the trial level. On that basis I reluctantly concur in the order of the Court.
. From dimly copied papers in the record it seems that punishment was assessed and sentence imposed by one trial judge and the habe-as findings were made by another district judge. Though the Court now says the findings were made “following an evidentiary hearing,” the order of the habeas court does not indicate that and our record does not contain a transcription of the notes of the court reporter. Since the clerk of the habeas court was directed by its order to “[pjrepare transcript of all papers in this cause” etc., I must doubt that evidence was taken.
. In this regard counsel states the second part of the bargain:
“The actual serving of the sentence would be subject to the federal authorities, in the federal penitentiary by reason of Mr. Burton having been designated a central monitoring case.”