Ex Parte: Richard Partaka, A/K/A Richard Tesmer

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-019-CR



EX PARTE: RICHARD PARTAKA, a/k/a RICHARD TESMER,

APPELLANT

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0925970, HONORABLE JON N. WISSER, JUDGE PRESIDING

PER CURIAM

This is an appeal from an order of the district court denying relief on appellant's writ of habeas corpus. Tex. R. App. P. 44. Appellant seeks to prevent his extradition to Nebraska.

In his only point of error, appellant contends that his continued confinement violates 18 U.S.C. § 3182 (1988). This statute reads:

Whenever the executive authority of any State . . . demands any person as a fugitive from justice, . . . the executive authority of the State . . . to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

Appellant argues that the last sentence of the statute, despite its wording, requires that the prisoner be discharged if he is not delivered to an agent of the demanding state within thirty days following the issuance of the governor's warrant. Assuming that appellant's reading of the statute is correct, we conclude that he did not show himself entitled to discharge from custody even though the thirty-day period expired before the hearing in the district court.

Appellant was arrested on a fugitive warrant on October 5, 1992. The following day, appellant appeared before the district court and refused to sign a waiver of extradition. The governor's warrant was issued on October 23 and served on appellant on October 26, at which time he requested counsel. Appellant's original writ of habeas corpus was filed on December 8. The writ issued and a hearing was held on December 17. It was shown at the hearing that Nebraska authorities had not been informed of appellant's arrest, at least in part because of the desire to dispose of a motion to revoke appellant's probation pending in Travis County.

The time limit prescribed by section 3182 is inapplicable when the fugitive himself causes the delay by challenging extradition. Bowersox v. State, 790 S.W.2d 363 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd). Appellant argues that this cause is distinguishable from Bowersox because he did not file his petition for writ of habeas corpus until after the statutory thirty-day time limit had run. We find this argument to be disingenuous, as it ignores appellant's refusal to sign a waiver of extradition and his request for the appointment of counsel. We agree with the State that these were the actions of a person desiring to test the legality of his arrest. A prisoner who wishes to challenge his arrest and extradition must be given a reasonable time within which to apply for a writ of habeas corpus. Tex. Code Crim. Proc. Ann. art. 51.13, § 10 (West 1979). It is unlawful for an officer of the asylum state to deliver a prisoner to an agent of the demanding state under these circumstances. Id. § 11. A prisoner cannot refuse extradition and demand counsel, then engineer his discharge under section 3182 simply by delaying the filing of his writ of habeas corpus.

We need not decide whether appellant would be entitled to discharge if the delay in notifying Nebraska authorities had been occasioned solely by this State's desire to conclude its proceedings against him. The point of error is overruled.

The order of the district court is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: February 24, 1993

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