OPINION

This is a habeas corpus proceeding attacking petitioner’s conviction for felony-theft, with punishment enhanced to life imprisonment under Art. 63, Vernon’s Ann.P. C.

The conviction was in Cause No. 7581 m the District Court of Nacogdoches County on October 25, 1943.

It is made to appear from facts certified to this court by the Honorable Jack Pierce, Judge of the District Court of Nacogdoches County, that in one of the prior convictions used to enhance petitioner’s punishment (Cause No. 7381 in the District Court of Nacogdoches County on October 26, 1936) the petitioner was not represented by counsel and at such time he was indigent and did not waive the services of counsel.

Under recent opinions of the Supreme Court of the United States, applying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the 1936 conviction was void and could not be used to enhance the punishment. See: Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and cases there cited. See, also, Ex parte Morgan, Tex.Cr.R., 412 S.W.2d 657, by this court.

The provisions of Art. 62, V.A.P.C., were applicable, and authorized a punishment of ten years.

Petitioner , having served in excess of ten years, is entitled to his writ and to discharge.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement under the life sentence.