This is an appeal from an order of the Judge of the Criminal District Court No. 2 of Tarrant County remanding appellant to the custody of the sheriff of Tarrant County for delivery to the agent of the state of Oklahoma.
At the hearing on the writ of habeas corpus, the warrant of the Governor of Texas, authorizing the delivery of the appellant to the agent of the State of Oklahoma, was not introduced in evidence, and it is upon this failure that the appellant relies. In fact, the state introduced no evidence at all at the hearing, documentary or otherwise.
A demand of the Governor of Oklahoma was introduced in evidence by the appellant, but nothing was introduced to show that the Governor of Texas had ever responded to this demand. No citizen can be extradited until the Governor of this state has authorized it. Section 3 of Article 1003a, Uniform Extradition Act, provides that “no demand for the extradition of a person charged with crime in another State shall be recognized by the Governor” of this state unless it meets certain conditions. It is this recognition which is a prerequisite to extradition.
*389The trial court attempted to qualify the statement of facts 1which he and the attorney for each side had already approved by attaching thereto a statement that a warrant from the Governor of Texas was on his bench at various times throughout the hearing. The state would have us hold that this certificate should be considered as filling the gap left in the record created by the failure of the state to offer the warrant in evidence.
The question here presented is basic and fundamental and reaches far beyond the outcome of this particular proceeding. The duty rests upon this court to see that those fundamental rules which protect the life and liberty of a citizen, whoever he may be, are. enforced, and cases should be decided upon sound principles of law and not upon expediency. To sustain the trial judge in this case would require that we set aside those basic rules. This we decline to do.
Can we hold that a judge may, by way of his certificate, which is obviously an afterthought, incorporate into the record a document; i.e., the Governor’s warrant, which is vital to a hearing when the person against whom this document is used never had a chance to object to it? To so hold would be contrary to all the rules of evidence.
While it is true that we would not order an appellant discharged because the court permitted certain inadmissible evidence to be introduced at the hearing, still we would not affirm a judgment ordering a citizen delivered to the agent of a demanding state where the court heard no evidence which would support such a judgment. In the case before us. the only evidence which the respondent and the court needed was the warrant of the Governor of Texas. But the respondent did not offer this indispensable bit of evidence, and the court did not hear it. Any hearing without it was a nullity. We will not permit a judge to certify to this court that he based his judament on an instrument which was never offered in evidence at the hearing.
In Phelps v. State, 158 Texas Cr. Rep. 510, 257 S.W. 2d 302, we said: “Our system of jurisprudence is bottomed on the doctrine of confrontation. An accused is not confronted by witnesses who speak in his absence.” By the same token, an accused is not confronted by a document which is not introduced in evidence.
It matters not what positions the litigants took at the hearing, the fact remains that the law guarantees that a citizen shall not be sent to a foreign state for trial until the following steps *390have been taken, to-wit: (1) The Governor of this state shall issue a warrant which orders him delivered to the agent of the demanding state, (2) He shall be given an opportunity to apply for a writ' of habeas corpus, and (3) He shall be given an opportunity to appeal to this court from an adverse ruling in the trial court.
The appellant here has waived none of these guarantees which the law accords him, and we are without the authority to waive any of these essential steps for him.
Any holding which would authorize a district judge to order a citizen extradited, except upon a warrant from the Governor of this state, would permit the authorities of a foreign state to ignore the office of Governor and apply directly to the district judge in extradition matters.
To recapitulate, the duty was upon the state to introduce in evidence at the hearing the authority of the Governor of this state to extradite the appellant in order to assume the burden of showing that the relator was rightfully detained. Ex parte Newman, 38 Texas Cr. Rep. 164, 41 S.W. 628, and Ex parte Patterson, 50 Texas Cr. Rep. 271, 95 S.W. 1061. In the case at bar, the state did nothing to meet this burden. Without such authority, the district judge was powerless to order the appellant delivered over to the agents of the demanding state. The state failed to fulfill its duty, and the court was without the power to enter the order which he did enter. This court has held that the respondent makes out a prima facie case when the Governor’s warrant is introduced. Ex parte Teplitz, 159 Texas Cr. Rep. 94, 261 S.W. 2d 567. By the same token, it has not made out a prima facie case until the warrant is introduced.
It is not the duty of appellant to question the validity of a warrant until it is offered in evidence.
This court may not reverse and remand a judgment in a habeas corpus proceeding. Ex parte Fermin, 131 S.W. 1113. The only order which we are authorized to make under the record before us is to reverse the judgment and order the appellant discharged. Nothing in this opinion is to be construed as invalidating any warrant of the Governor of Texas ordering the appellant extradited. Such question is not before us and is not decided. If there is a valid warrant outstanding, the conclusions here expressed do not affect the same.
*391The ' judgment is reversed and the appellantordered discharged. ,