concurring.
I concur in the conclusion of my brother .Morrison that this case must be reversed and appellant ordered discharged., I have decided to separately state my views. . . , ,
This is an appeal from the order of the Criminal District Court No. 2 of. Tarrant County, Texas, remanding appellant to the custody of .the sheriff of Tarrant County to be delivered to an agent of the State- of Oklahoma- for extradition to that state. . • . -
The order purports to have been issued in an. extradition case. The question arises as to whether the case is one, .of extradition because of the absence of proof of a jurisdictional fact necessary to constitute it such a. case.
The authority to extradite or remove one found in one state to another state to answer a criminal charge in that, state stems solely and alone from the Constitution of the United States: Art. IV., Sec. 2. To implement that constitutional provision, Congress enacted Title 18, Sec. 3182,* and provided that such extradition or removal could be accomplished only by the order of the Governor of the asylum state — that is, the state from which the individual is to be removed.
To facilitate the exercise of those powers, the legislature of this state has enacted the Uniform Criminal Extradition Act (Art. 1008a, C.C.P.) in which is manifested the fact that extradition may be accomplished only by the order or warrant oif the Governor of this state.
The order or warrant of the Governor of this state, áuthorizing the arrest and delivery of one found in this state to another state, is jurisdictional to the exercise of such arrest and délivery (Sec. 7, Art. 1008a, C.C.P.). Being jurisdictional, no extradition may be accomplished without such a warrant, and no extradition case exists.
The statement of facts in this case does not reflect that a warrant from the Governor of this state authorizing appellant’s. *392arrest and extradition to the State of Oklahoma was offered in evidence. All parties agree that no such warrant was offered in evidence.
Unless and until a warrant from the Governor of this state was offered in evidence, appellant was not called upon nor did he have the opportunity to examine the same and ascertain if it measured up to the requirements prescribed by Sec. 7 of Art. 1008a, C.C.P.
It is suggested by the state that in the transcript of the proceedings — not the statement of facts — there is to be found a copy of the Governor’s warrant. The copy referred to does not appear to have ever been filed in the trial court. How it happened to get into the transcript, then, is a matter of conjecture. Certainly we are noí authorized to consider it for any purpose.
It is also suggested that there was a Governor’s warrant-present in the courtroom during the trial of the case.
If such be true, the state should have introduced it in evidence. Not having done so, the presumption must attain that such warrant did not authorize appellant’s extradition.
It must be remembered that in habeas corpus proceedings to test the legality of an arrest and detention it is the burden of the respondent or state to show the lawfulness of the arrest and detention. Unless that is shown, the relator is entitled to be discharged. 21 Texas Jur., Habeas Corpus, Sec. 40, at p. 461; Ex parte Villareal, 80 Texas Cr. R. 23, 187 S.W. 214. Obviously, the state is not shown to have discharged that burden here.
Attention is also called to this further fact: The return of the sheriff of Tarrant County in answer to the writ of habeas corpus to show cause why he held the appellant reflects that he was in his “custody as Sheriff of said County by virtue of a certain Warrant for Arrest on charge of Fugitive from Justice issued by R. S. Callaway, Justice of Peace, Precinct 1, Place 2, Tarrant County, Texas on the 14th day of October, 1954....”
This return is the only authority in this case showing why the appellant was under arrest or held in custody. A fugitive warrant is not a substitute for the Governor’s warrant of ex*393tradition, nor does it authorize the issuance of an order of extradition.
Notwithstanding the admitted failure of the state to introduce in evidence a warrant from the Governor of this state authorizing appellant’s extradition, it is suggested that we assume and presume that such a warrant did exist and that the trial court based its order thereon. . .
Neither this court nor any other court has the authority to assume or presume jurisdiction to act in any matter. The trial court, and this court, would have just as much authority to condemn one to the penitentiary as a convicted felon without an indictment before it as it would have to order the extradition of this appellant without having before it a valid warrant of the Governor of this state so authorizing.
In connection with the suggestion just stated, it is also insisted that this court determine for itself whether there was, iii fact, a Governor’s warrant — and this, without the record affirmatively so reflecting.
The answer to that suggestion lies in the fact that this case is not before us as an original matter. To the contrary, our jurisdiction in the matter is solely appellate.
Our duty and power, then, is to review upon appeal the action of the trial court. Were we to do anything else we would exceed our own jurisdiction. Our original jurisdiction has not been invoked.
We are not here authorized to determine whether there was, in fact, a Governor’s warrant but, rather, whether the order of the trial court remanding this appellant for extradition was or was not authorized by the record before us.
The sheriff’s return contradicts the theory of the state that appellant was held under authority of a warrant of the Governor of this state.
The record does not support the trial court’s ruling.
Accordingly appellant is entitled to -his discharge.
OriginalIy Sec. 662.