Untitled Texas Attorney General Opinion

’ E ORNEY GENERAL OFTEXAS AUSTIN m.T~xas /42. c -*7 WLL WILSON A’PTORNEYOENERAI. c -ky-r- January24, 1961 Mr. Jack Ross, Administrator Opir,ion No. WW-$39 InterstateParole Compact Board of Pardons and Paroles Re: Questionsrelativeto the Austin,Texas constructionof Article781c, Code of CriminalProcedure Dear Mr. Ross: Your requestfor an opinionhas been receivedand carefullyconsidered by this office. We quote your letter,in part, as follows: "In order to clarifythe proceduresrelatingto Section 2, paragraph(3)of Article78~2,Code of CriminalProcedure, known as the UniformAct for Out of State ParoleeSupervision, your opinionson the followingquestionsare respectfully requested. It shouldbe noted that all stateshave adopted this UniformAct. "1) When the parole or probationof a person,who is being supervisedin the State of Texas for another state, Is revokedby the other state,may that state send its agents into the State of Texas and upon proper identification re-takephysicalcustodyof the parolee or probationerand return him to the sendingstatewith- out extraditionproceedingsand withoutreferenceas to whetherthe person has signeda waiver of extradition in the State of Texas? "2) When a paroleeor probationeris being supervised in one state for anotherstate,neitherbeing the State of Texas, and such person abscondsto the State of Texas and his parole or probationis revoked,may the state of originaljurisdiction take him in custodyin Texas and return him to its jurisdiction withoutextraditionpro- ceedingsunder Article78k, C. C. P.? "3) Can a person be admittedto bail in Texas when he is on,paroleor probationfrom anotherstate and when his parole or probationhas been revokedand when the sending MI-.Jack Ross, Page 2 (w-989) state is in the processof returninghim to its jurisdiction? "4) When authorizedand directed. by the sending state,may a paroleeor probationerfrom such state, who is being supervisedin the State of Texas, be held in custodyupon the order of the Administrator of the Compactfor the State of Texas until a revo- cationwarrant can be obtainedfrom the sendingstate?" Section2, paragraph(3) of Article781~, Code of CriminalProcedure, states: "(3) That duly accreditedofficersof a sendingstate may at all times enter a receivingstate and there apprehend and retakeany person on probationor parole. For that purpose no formalitieswill be requiredother than establishing the authorityof the officerand the identityof the person to be retaken. All legal requirementsto obtain extraditionof fugitivesfrom justiceare hereby expresslywaived on the part of Statesparty hereto,as to such persons. The decisionof the sendingstateto retakea person on probationor parole shallbe conclushveupon and not reviewablewithin the receiv- ing state;provided,however,that if at the time when a state seeks to retakea probationeror paroleethere shouldbe pend- ing agaainsthim within the receivingstate any criminalcharge, or he shouldbe suspectedof having committedwithin such state a criminaloffense,he shallnot be retakenwithoutthe consent of the receivingstateuntil dischargedfrom prosecutionor from imprisonmentfor such offense." To answer your first question,when the parole or probationof a person who is being supervisedin the State of Texas for another state,is revokedby the other state,that statemay send its,agentsinto the State of Texas and upon proper identification may take physicalcustodyof the paroleeor probationer and return him to the sendingstate witho& extraditionproceedingsand without referenceto whetherthe person has signeda waiver of extraditionin the State of Texas. In State of Alabamaex rel Bridgesv. Waters, 108 So.2d 23 146 (Ala. -__~. 1959) s.ct. .._.the Alabalna SupremeCourt held that the receivingstate could.not inquireinto the sendingstate'sreasonsfor revokingparole. In Woods v. State, 1956)the Alabama SupremeCourt upheld the constitution- 87 So.2d 633 (Ala.~S,C'f,* ality of the Compactagainst * claimthat l.tviolatedthe due processclause of the Constitution. In tirecase of Guiley, Sheriffv. Apple, 210 S.W.2d 514 (Ark. 1948)the ArkansasSupremeCourt h.eLdhat the InterstateParole Compactdid not violatethe right of habeas corpus,and also statedthat federalextradition procedurewas not intended. to prevent statesfrom making other arrangementsfor Mr. Jack Ross, Page 3 (w-989) extradition.The leadingcase on the Compactis Ex perte Tenner, 128 P.2d 338 (Cal. S.Ct. 1942) cert. denied314 U.S. 585, 317 U.S. 597. This case covered almost all aspectsof the Compact'sconstitutionality.The United States SupremeCourt refusedto reviewthe favorabledecisionof the CaliforniaSupreme court. The only Texas case touchingon the UniformAct for Out of State Parolee Supervisionis Ex parte MargaretAnn Smith, 339 S.W.2d 671 (Tex.Crim.1960). In denyingan applicationfor habeas corpus,the Court statedin part: "The Governorof Texas has executedthe compactas authorized and directedby the Legislature,and the State of Ohio is atparty to the compact. "The Congressof the United Stateshas consentedto any two or more statesenteringinto such a compact.4 U. S. C. A., Sec. 111. "The statuteauthorizingand directingthe Governorof Texas to executethe compacton behalf of this State isattacked as uncon- stitutional, the groundbeing that because of the use of the word 'substantially' the statuteis a delegationof legislativeauthority to the executivebranch of government. "No authorityis cited in supportof such contentionand we know of none. "'Substantially', as used in this statute,we understand means all that is necessaryor essential. The statutein effect requiresthat the compactto be executedby the Governorembody the substanceof the form set out therein,but does not require that it be in the exact words set out in the statute. "There is no suggestionthat the compactexecutedvaries in any materielmanner from the languageof the statute." Ex perte Tenner? supra,reeds in pert: "The Compactrepresentsthe socialpolicy of both California and Washingtonin this regard, It is a uniformagreementfor coop- erativeeffortand mutual assistancein the preventionof crime and in the enforcementof the criminallaws of each statewithin the con- templationof the federallegislationand thereforedoes not violate the prohibitionof the Cotiitutionconcerningcompactsbetween states. . e 0 The existenceof an independentmethod of securingthe return of out-of-stateparoleesdoes not conflictwith nor render ineffectual the federallaws with relationto extradition.I 0 . And sincethe Mr. Jack Ross, Page 4 (w-989) statuteappliesuniformlyto all paroleesfrom statesparty to the compact,the petitionermay not complainthat the statutedepriveshim of the equal protectionof the laws." In answer to the secondquestion,it is our opinionthat when a parolee or probationeris being supervisedin one state for another state,neither being the State of Texas and such person abscondsto the State of Texas and his parole or probationis revoked,the state of originaljurisdiction may take him into custodyin Texas and return him to its jurisdiction withoutextradition proceedingsunder Article781~, Code of CriminalProcedure. In a 1955 case before the New York SupremeCourt,People ex rel Marro Y. Ruthazer,140 N.Y.S.2d 571, the court when faced with such a problemdeclaredonly that all three stateswere membersof the Compactand the sendingstate could take him back. In re Severa,a 1953 North CarolinaSuperiorCourt case, the court held that althoughNorth Carolinawas not the receivingstate to which Severahad been sent under the Compact,Severa had agreed in his waiver not to contestany effort "by any state",to return him to New Jersey,and that New Jersey might retake him withoutextradition. In a 1955 opinion,the WyomingAttorneyGeneralallowed this procedureas did.the IdahoAttorneyGeneralin a 1956 opinion. For your third question,you asked whethera person may be admittedto bail in Texas when he is on parole or probationfrom anotherstate,when his parole or probationhas been revoked,and when the sendingstate is in the pro- cess of returninghim to its jurisdiction.The AttorneyGeneralof North Carolina is the only officialto deal directlywith this problem. In an opiniondated November7, 1959, that office statedthat out-of-stateparoleesunder supervision in North Carolinamay be arrestedupon issuanceof a temporaryrevocationwarrant by the North CarolinaCompactAdministrator.Such paroleesare not entitledto bail when they are being held in custodypendingthe sendingstate'sdecisionas to their return. Bail in such situationswas not contemplatedby the statute. Article 1, Section11 of the Constitutionof the State of Texas providesin part: "All prisonersshallbe bailableby sufficientsureties, unless for capitaloffenses,when the proof is evident." However,this sectionhas been held to securethe right of bail only to those prisonerswho have not been tried and convicted. Ex parte McBride,2 S.W.2d 267 (Tex.Crim.1928),held that Section11 of Article 1 of the Texas Constitu- tion has referenceto prisonersbefore conviction. Prisonersafter conviction were held not to be guaranteedthe right of bail. Other Texas cases holding this are Ex carte Bzell,40 Tex. 451; Ex parte Schwartz,2 Tex.App.74; Warnock Y. State.6 Tex.Ano.450: Ex oarte McCorkle,29 Tex.App.20. In our situation these paroleesor-probationers have all been tried and convictedand there is no authorityfor admittingto bail such paroleesor probationers. Section2, paragraph(2) of Article781.~,Code of CriminalProcedure, known as the UniformAct for Out-of-StateParoleeSupervision,reads as follows: Mr. Jack ROBS, Page 5 (w-989) "(2) That each receivingstatewill assume the duties of visitationof and supervisionOver probationersor paroleesof any sendingstate and in the exerciseof those dutieswill be governedby the same standardsthat prevailfor its own proba- tionersand parolees." Then, Section21 of Article78~3, Code of CriminalProcedure,known as the Adult Probationand Parole Law of 1957, reads: "Upon order by the Governor,the Roard is authorizedto issue a warrantfor the return of any paroledprisonerto the institutionfrom which he was paroled. Such warrant shall authorizeall officersnamed thereinto return such paroled prisonerto actual custodyin the penal institutionfrom which he was paroled. Pendinghearing,as hereinafterprovided,upon any charge of paroleviolation,the prisonershall remain incar- ceratedin such institution. .* .. Construingthe above sectionsof these two acts together,it seems apparentthat bail in the cases of out-of-stateparoleesor probationersbeing supervisedin Texas is not to be permitted. In answeringyour fourth question,when authorizedand directedby the sendingstate,a paroleeor probationerfrom such statewho is being supervised in the State of Texas may be held in custodyupon the order of the Administrator of the Compactfor the State of Texas until a revocationwarrant can be obtained from the sendingstate. In State of Alabamaex rel. BridgesY. Waters, supra, the Alabama SupremeCourt held that the Compactauthorizedapprehensionof paroleesby officersof the sendingstate,but did not preventtheir apprehension by officersof the receivingstate. In Stone v. Robinson,219 Miss. 456, 69 So. 2d 206 (Miss.S.Ct. 1954) the MiBsiBBippiSupremeCourt held that Stone could be retakenwi,thout having his parole revoked,that Louisiana'scertificateand warrantwere admissablein evidenceand that Mississippi'sarrestwarrant (the receivingstatess)was authorizedby the Compact. The AttorneysGeneralof Arkansas (1957)and North Carolina(1959)have both declaredthat out-of-state paroleesunder supervisionin the receivingstate may be arrestedupon issuance of a temporaryrevocationwarrantby the Compac t Administratorof the receiving state,or arrestedand detainedtemporari,ly withouta warrantupon paroleviola- tion. SUMMARY 1. When the parole or probationof a personwho is being SUperviSed in the State of Texas for another state is revokedby the other state, that state may send its agents into the State of TeXaB and upon proper identification retakephysicalcustodyof the paroleeor probationer and returnhim to the Bendingstatewithout extraditionproceedings Mr. Jack ROBS, Page 6 (wwi989 ) and withoutreferenceto whetherthe person has signeda waiver of extraditionin the State of Texas. 2.When a paroleeor probationeriB being sUperViSedin one state for another state,neitherbeing the State of Texas, and such person abscondsto the State of TeXaB and his parole or probationis revoked,the state of originaljurisdictionmay take him into custodyin Texas and returnhim to its jurisdic- tion, without extraditionproceedings,under Article781~, Texas Code of CriminalProcedure. 3. A person is not to be admittedto bail in Texas when he is on parole or probationfrom anothersstate, when his parole or probationhas been revoked,and when the Bendingstate is in the processof returninghim to its jurisdiction. 4. When authorizedand directedby the Bendingstate,a parolee or probationerfrom another statewho is being SUperviSedin the State of Texas may be held in CUBtOdyupon the order of the AdminiBtI%tOr of the Compactfor the State of Texas until a revo- cationwarrant can be obtainedfrom the Bendingstate. Yours very truly, WILL WILSON AttorneyGeneralof TeXaB GLRNNR. BROWN @BiBtad APPROVED: OPINIONCOMMITTIZH W. V. Geppert,Chairman Joe M&asters L. P. Lollar Virgil Pulliam Mary K. Wall RRVIEWEDFORTHRA~O~NY GENERAL BY: HoughtonBrownlee,Jr.