Untitled Texas Attorney General Opinion ( 1961 )

’
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.