Reversed and Remanded and Opinion Filed February 2, 2017




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-01151-CR


                                    EX PARTE DAVID DOWE


                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. WX16-90018-J

                             MEMORANDUM OPINION
                          Before Justices Bridges, Evans, and Schenck
                                  Opinion by Justice Bridges
       David Dowe appeals the trial court’s order denying him the relief sought by his

application for writ of habeas corpus seeking to release him from an extradition order. The

question presented in this appeal is whether a magistrate judge’s rejection, alone, of an

application for writ of habeas corpus, is insufficient to support the writ’s denial. We conclude it

is not. Accordingly, we reverse the trial court’s order denying habeas corpus relief and remand

the case for further proceedings.

                                          BACKGROUND

       Appellant was arrested on August 22, 2016 pursuant to an extradition warrant issued by

the State of Ohio. Appellant had been indicted for the offenses of rape and kidnapping in Ohio.

Appellant filed an application for writ of habeas corpus on September 7, 2016, asserting he had

not been adjudged guilty of any crime in Ohio and that his identify had not been affirmatively
linked to the person sought by law enforcement in Ohio. Appellant waived having his case heard

before the district court judge and requested referral to a magistrate judge. The district court

judge signed the order of referral. After hearing arguments from the parties, the magistrate judge

denied the writ of habeas corpus and filed written “findings and recommendations.”                The

magistrate judge signed the findings and recommendations, and also signed the “order adopting

magistrate’s findings and recommendations.”

                                            DISCUSSION

       In a single issue, appellant contends the case should be remanded to the district court for

further proceedings because a magistrate judge’s actions are not legally binding until they are

adopted by the referring court. Because the magistrate judge signed the adoption order and not

the district judge, there is insufficient evidence to support the denial of the writ of habeas corpus.

       The State responds that the record shows the trial court implicitly adopted the

magistrate’s findings and recommendations.         The State asserts that appellant has failed to

affirmatively show the district judge did not review the record of the proceeding prior to the

magistrate denying appellant writ of habeas corpus. Alternatively, the State argues the case

should be remanded to the trial court for clarification as to whether the trial court adopted the

magistrate’s findings and recommendations.

       There is a presumption of regularity that appellate courts apply to the proceedings in the

trial court. Ex parte Stacey, 709 S.W.2d 185, 189 (Tex. Crim. App. 1986). A magistrate judge

acts as an agent of the district court, and his actions are not legally binding unless and until they

are adopted by the referring court. Kelley v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984).

When the record is silent as to what was presented to the district court judge, we presume that all

of the actions of the magistrate were adopted. Id. at 108–09.




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       Here, the record is not silent.    The reporter’s record of the hearing on appellant’s

application for writ of habeas corpus shows the magistrate heard argument from both parties and

denied the application. After the magistrate judge issued written findings and recommendations,

there is nothing in the record that shows the district judge reviewed and/or adopted the

magistrate’s findings. To the contrary, the record shows the magistrate judge reviewed and

adopted the findings. Accordingly, we sustain appellant’s sole issue.

       We reverse the trial court’s order denying the application for writ of habeas corpus and

remand the case for further proceedings to determine whether the district judge adopted the

magistrate’s findings and recommendations.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47
161151F.U05




                                              –3–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE DAVID DOWE                                   On Appeal from the Criminal District Court
                                                      No. 3, Dallas County, Texas
No. 05-16-01151-CR                                    Trial Court Cause No. WX16-90018-J.
                                                      Opinion delivered by Justice Bridges.
                                                      Justices Evans and Schenck participating.

        Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
by the application for writ of habeas corpus is REVERSED and the case is REMANDED to the
trial court for further proceedings.


Judgment entered February 2, 2017.




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