,

                           THE       ATTORNEYGENERAT~
                                        OF TEXAS
                                      AUSTIN.    TKCXAS       78711

         JOaN   L. ISILL
        AX-E-ORNEYCaENERAI.

                                                 May 21,      1975


              The Honorable   Ted Butler                        Opinion   No.   H-   612
              Criminal District Attorney
              San Antonio,  Texas  78204                        Re: Whether a person held
                                                                after arrest on a governor’s
                                                                warrant is entitled to bail.

              Dear Mr.   Butler:

                       You ask whether a person held after arrest on a governor’s
              warrant based on a demand for extradition,      is entitled to bail.  The
              Uniform Criminal Extradition Act, article 51.13, Code of Criminal
              Procedure,   adopted in 1951, provides for the arrest,     detention and
              extradition of a person found in Texas who is charged with committing
              a crime in another State.   Section 16 of article 51.13 provides:
    C

                              Unless the offense with which the prisoner is
                              charged is shown to be an offense punishable
                              by death or life imprisonment    under the laws
                              of the State in which it was committed,.    a judge
                              or magistrate   in this State may admit the person
                              arrested  to bail by bond, with sufficient sureties
                              and in such sum as he deems proper,       conditioned
                              for his appearance    before him at a time specified
                              in such bond, and for his surrender,     to be arrested
                              upon the warrant of the Governor in this State.

                       Although the Texas courts have not directly dealt     with section 16
              in its present form,   the Court of Criminal Appeals early held that a person
              held on a governor’s   warrant was not entitled to bail.   Hobbs v. State, 22
              S. W. 1035 (Tex. Grim. 1893).     The constitutional  guarantee to bail for
              “all prisoners”   was the same in 1893 as it is today:




                                                  p.   2710
The Honorable    Ted Butler    page 2        (H-612)




                All prisoners   shall be bailable by sufficient
                sureties,  unless for capital offenses,   when
                the proof is evident; but this provision   shall
                not be so construed as to prevent bail after
                indictment found upon examination     of the
                evidence in such manner as may be prescribed
                by law.   Tex. Const. art. 1, sec. 11.

         In Ex Parte Dugue, 333 S. W. 2d 382 (Tex. Crim. 1960), the court
held that a person arrested    in Texas on a bailable felony charge commit-
ted in Texas as well as under a governor’s     warrant for extradition was
not entitled to bail on the otherwise bailable felony since he was “in
lawful custody for extradition. ” With no reason other than the arrest
under the governor’s     warrant given for denial of bail, the opinion suggests
that Hobbs is still viable and a person held under a governor’s      warrant
is not entitled to bail.

         With a bail provision in Indiana’s Uniform Criminal Extradition
Act almost identical to Texas’ and a similar constitutional        bail guarantee,
the Supreme Court of Indiana has recently held that a person sought by
the State of Nkw York, is not entitled to bail after arrest on a governor’s
warrant,    and has comprehensively      stated the majority view on this
subject,   citing Hobbs as being in accord.       Howard v. St. Joseph Superior
Court, 316 N. E. 2d 356 (Ind. 1974), and cases cited therein.        The court
in Howard held that neither the Uniform Act nor the constitutional         pro-
vision encompassed       the situation of a person held after the issuance of a
governor’s     warrant.    While the Uniform Act provides for bail between
arrest without a governor’s       warrant and receipt of the governor’s    warrant
by the magistrate     having custody of the accused fugitive,    the Howard
court explained,     quoting from Ex Parte Thompson,       96 A. 102 at 118, 119
(N. J. 1915):

                It is true that our Constitution provides that all
                persons shall, before conviction,     be bailable by
                sufficient sureties,   except for capital offenses where
                the proof is evident or presumption     great.   Article 1,
                $10.    But this . . . is not intended to extent bail to




                                        p.   2711
     ,




,-
         The Honorable    Ted Butler   page 3      (H-612)




                         cases where it did not previously     obtain.  As
                         our constitutional  provision is that all persons,
                         before conviction,   shall be bailable,   the pro-
                         vision does not extend to persons who may not
                         be convicted under our laws.      As we have no power
                         to convict an offender against the criminal laws of
                         the state of New York, we have no power to enlarge
                         on bail a person accused of an offense against the
                         laws of that state. . . .    (Court’s emphasis).

                  Accord,    Walden v. Mosleycz  312 F.Supp.  855 (N. D. Miss. 1970);
         McGill   v. Wright,   307 N.Y.S. 2d 964 (N. Y. County Ct. 1970); Nevada v.
         Second Judicial District Court, County of Washoe,      471 P. 2d 224 (Nev.
         Sup. 1970); Wayans V. Wolfe,     300 A. 2d 44 (Conn. Super. 1972); Buchanan
         V. Florida,  166 So. 2d 596 (Fla. Ct. App., 3rd Dist.) 1964); and Allen v.
         w;     86 N. W. 2d 839 (Iowa 1957).   Compare,   Application  of Haney, 289
         P. 2d 945 (Idaho 1955); and Ruther v. Sweeney, 137 N. E. 2d 292 (Ohio Ct.
         App. 1956).
r
                 Consequently,   a person arrested   before the issuance   of a governor’s
         warrant may be admitted to bail pursuant to article 51.13, section 16, Code
         of Criminal Procedure,    until said warrant is issued.    A person arrested
         and held pursuant to an issued governor’s    warrant may not be admitted
         to bail since there is no statutory or constitutional  authority for bail
         under such circumstances.

                                        SUMMARY

                             A person held after arrest       on a governor’s
                         warrant is not entitled to bail,

                                                             Very   truly yours,




                                                             Attorney   General    of Texas




                                             p.   2712
The Honorable   Ted Butler   page 4        (H-612)




APPROVED:




C. ROBERT HEATH,       Chairman
Opinion Committee




                                      p.   2713
