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                             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

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