Untitled Texas Attorney General Opinion

Alrrmmn. T- 78711 March 26, 1976 The Honorable Tim curry Criminal Di8trict At.torney Tarrant County Re: Whether a person 200 West Belknap arrested on a governor's Fort Worth, Texas 76102 warrant is entitled to bail pending the reso- lution of a habeas corpus proceeding. Dear Mr. Curry: You have requerted our opinion aa to the availability of bail in an extradition proceeding.' Specifically, you ask: Following the arrest of an alleged fugitive on a governor's warrant, may a court of record enlarge said alleged fugitive on bail during the pendency of a habeas corpue proceeding (including an appeal from an adveroe ruling)? In Attorney General Opinion H-612 (19751, we held that bail was not available to one who has been arrested on a governor's warrant, although we did not address the particular situation .in which the person seeks habeas corpus relief and requests bail during the pendency of these proceedings. Nevertheless our answer in such a case is the same. Although one arrested on a governor's warrant is entitled to apply for a writ of habeas corpus , he may not be enlarged on bail during such proceedings. p. 3389 The Honorable Tim Curry - page 2 (H-903) The most recent Texas case on the question was decided almost 40 years ago, and held that the statute providing for bail pending determination of a habeas corpus appeal, the current article 44.35, Code of Criminal Procedure, includes extradition cases in its operation. s.w.Zd 551 (Tex. Grim. App. 1936). TEs~t~~f:::~~~: applicable, a person would be entitled to bail pending determination of an appeal from a remand to custody following denial of habeas corpus relief in an extradition proceeding. However, it ie our opinion that the Anderson decision has been effectively supereeded by Texas' adoptgon in 1951 of the Uniform Criminal Extradition Act (UCEA). Code Crim. Proc. art. 51.13. The UCEA providee that a person held for extra- dition may be admitted to bail before ieeuance of a governor's warrant, but it makes no provision for bail after the governor’s warrant ie issued. Code Crim. Proc. art. 51.13, 6 16. The Anderson court relied on a New York decision inter- preting a statute similar to article 44.35 to provide for bail pending appeal from a remand to cuetody following denial of habeas corpus relief , even in cases where the appellant was held pursuant to a governor's warrant in an extradition proceeding. Ex parte Anderson, supra at 552. Both New York and Texae e~eequently adopted the UCEA. N.Y. Code Grim. Proc. 66 627-8591 Tex. Code C&m. Proc. art. 51.13. The New York courts now treat the UCEA as the con- trolling statute and deny bail in habeas corpus proceedings after iesuance of a governor’s warrant. People ex. rel. N.Y.S.2d 964 (Cty.Ct. 19fO),am 314 1970). In other states which have adopted the UCEA, the courts have construed it to prohibit bail in extradition cases after issuance of the governor's warrant, including the situation where the prisoner has applied for habeas corpus or has appealed from a remand to custody following denial of habeas corpus relief. Deas " Weinehienk, 533 P.2d 496 (Col. 1975); -- State v. Second Judicial Dist. C&, County of Washoe, 471 P.2d 224 (Nev.lmchanan v. State, x6- 596 @'la. 1964); Allen v. Wild 96 mIa. 1957); Waller 5 Jordan, m.m as6\ArizW?9:?,. When courts of a state have not previously construed a particular uniform statute, they "will refer to decisions of other cltateeand will construe the statute in accordance p. 3390 The Bonorable Tim Curry - page 3 (H-603) with the construction given to the same statute in other juriedictione." Sutherland, Statutes and Statutory Conetruc- tion, 4th Ed., 6 52.05 (1973). Therefore, we believe the Texas courte will construe the UCBA to prohibit bail after issuance of the governor's warrant in all cases. Since the UCBA, article 51.13, was adopted subsequent to the passage of article 44.35 and since the provisions of article 51.13 are more specific in that they speak only to extradition cases, article 51.13 controls in the event of a conflict between the two statutes. V.T.C.S. art. 5429b-2. 66 3.05(a) and 3.06; ConrmercialStand. F.&M. Co. v. Commieeioner of Insurance, 429's W 2d 936,--- A ii m6a, no writ). Se; hillman v State 407 S.W.Zd 75:' 7:2 (Tex. Grim. APP. lV92)~e~~tantly, -- the Co& of Criminal Appeals has stated, with reference-to cases decided prior to the adoption of the UCEA, that "Ieluch cases ceased to be authority following this baeic change-in our law relating TV extradition. . . ." Ex parte Peaire, 283 S.W.Zd 755, 756 (Tex. Crim. App. 1955). Based on the foregoing authoritiee, we believe that the adoption of the UCBA by the Texas Legislature superseded the holding in Anderson and, therefore, that a person held for extradition under a governor's warrant may not be enlarged on bail pending final determination of habeas corpus pro- ceedings. SUMMARY A person held for extradition may not be admitted to bail after ieeuance of governor’s warrant pending determination of a habeas corpus proceeding or of an appeal from a remand to custody. Very truly yours, JOHN L. HILL Attorney General of Texas p. 3391 The Xonorable Tim Curry - page 4 (H-803) APPRDVED: Opinion Cormuittee jwb D. 3392