                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00415-CR

                         EX PARTE JAMES HARNAGE




                           From the 87th District Court
                             Freestone County, Texas
                            Trial Court No. 07-071-CR


                          MEMORANDUM OPINION


      James Harnage contends that the trial court should have dismissed the charges

against him because he was not brought to trial within the time limits set by the

Interstate Agreement on Detainers Act. We will affirm the order denying his pretrial

habeas application.

      Harnage was an inmate in the Alabama prison system when he mailed a motion

for final disposition of untried indictments, informations or complaints to the Freestone

County District Clerk on July 28, 2005. He mailed a “memorandum” to the district

attorney on the same date requesting final disposition of such untried charges. The

district clerk responded by letter dated August 2, 2005 and advised Harnage that there
was “no case filed in District Court to date.” According to an Alabama Department of

Corrections inmate summary admitted in evidence, a detainer was lodged against

Harnage by the Freestone County Sheriff’s Department on August 15, 2005. Harnage

was extradited from Alabama to Texas in October 2007.

                                        Article III

       The State contends that Harnage’s request for final disposition did not invoke the

provisions of the IADA because he delivered it to Texas authorities before a detainer

was lodged against him. We agree.

       Article III(a) of the IADA provides in pertinent part:

               Whenever a person has entered upon a term of imprisonment in a
       penal or correctional institution of a party state, and whenever during the
       continuance of the term of imprisonment there is pending in any other
       party state any untried indictment, information, or complaint on the basis
       of which a detainer has been lodged against the prisoner, he shall be
       brought to trial within 180 days after he shall have caused to be delivered
       to the prosecuting officer and the appropriate court of the prosecuting
       officer’s jurisdiction written notice of the place of his imprisonment and
       his request for a final disposition to be made of the indictment,
       information, or complaint.

TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(a) (Vernon 2006).

       Our research has disclosed one case in which it was held that an inmate’s request

for final disposition is effective to invoke the provisions of the IADA even if the request

is delivered before a detainer has been lodged against the inmate. See Barnett v. Donald,




Ex parte Harnage                                                                     Page 2
No. 5:06-CV-225, 2007 U.S. Dist. LEXIS 71526, at *3 (M.D. Ga. Sept. 26, 2007) (citing

United States v. Hutchins, 489 F. Supp. 710 (N.D. Ind. 1980)).1

        Virtually every other state2 and federal3 court which has addressed the issue has

concluded that the “provisions of article III apply only when a ’detainer’ has first been

‘lodged against the prisoner.’” State v. Miles, 101 S.W.3d 180, 183 (Tex. App.—Dallas

2003, no pet.) (emphasis added); accord State v. Votta, 267 S.W.3d 197, 201 (Tex. App.—

Corpus Christi 2008, pet. granted); Walker v. State, 201 S.W.3d 841, 845 (Tex. App.—

Waco 2006, pet. ref’d).

        Here, because a detainer was not lodged against Harnage until after he made his

request for final disposition, his request was not effective to invoke the provisions of

Article III of the IADA.


1
          In Hutchins, the federal district court observed that there are four requirements which must be
satisfied to invoke Article III of the IADA: (1) the defendant is serving a term of imprisonment in a party
state; (2) during that incarceration, charges are pending against the defendant in another party state; (3) a
detainer is lodged against the defendant by the other state; and (4) the defendant delivers a written
request for final disposition of the untried charges to the proper authorities in the other state. United
States v. Hutchins, 489 F. Supp. 710, 713 (N.D. Ind. 1980). A detainer was lodged against the defendant in
Hutchins and he delivered his request for final disposition about one and a half months before he was
formally sentenced in the state where he was being held. Id. at 712. The court rejected the U.S. Attorney’s
contention that Hutchins’s IADA request was ineffective because it was delivered before sentencing. Id.
at 715. The court instead held that, although the four requirements specified are listed in a particular
order, “there is no explicit requirement that they accrue in any special sequence.” Id. at 713. Thus, the
court concluded that Hutchins’s request for final disposition was premature but took effect as of the date
of his sentencing. Id. at 715.

2
         See, e.g., Stephenson v. State, 801 So. 2d 34, 36 (Ala. Crim. App. 2000); People v. Brooks, 234 Cal. Rptr.
573, 578 (Cal. Ct. App. 1987); People v. Lincoln, 601 P.2d 641, 642 (Colo. Ct. App. 1979); Remick v. Lopes, 525
A.2d 502, 506 (Conn. 1987); State v. Wood, 241 N.W.2d 8, 12-13 (Iowa 1976); Yost v. Smith, 862 S.W.2d 852,
853 (Ky. 1993); State v. Steele, 624 N.W.2d 1, 6 (Neb. 2001); State v. Ferdinando, 260 S.E.2d 423, 426 (N.C.
1979); State v. Coffman, 650 P.2d 144, 146 (Or. Ct. App. 1982); State v. Newman, 367 A.2d 200, 202 (R.I. 1976);
State v. Welker, 141 P.3d 8, 12 (Wash. 2006).

3
         See, e.g., New York v. Hill, 528 U.S. 110, 112, 120 S. Ct. 659, 662, 145 L. Ed. 2d 560 (2000); Dixon v.
United States, 592 F.2d 329, 333 (6th Cir. 1979); Barnett v. Clark, No. 1-06-CV-235, 2008 U.S. Dist. LEXIS
4738, at *9 (E.D. Tenn. Jan. 22, 2008).


Ex parte Harnage                                                                                           Page 3
                                       Article IV

       Article IV of the IADA requires the State to bring a defendant to trial within 120

days after arrival in Texas. However, this provision applies only if the defendant is

brought to Texas pursuant to a detainer lodged against him under the IADA. See TEX.

CODE CRIM. PROC. ANN. art. 51.14, Art. IV (Vernon 2006); Ex parte Doster, 282 S.W.3d 110,

113 (Tex. App.—Waco 2009, pet. granted).

       The State contends that Harnage was extradited by the governor’s office under

article 51.13 of the Code of Criminal Procedure.       Harnage does not dispute this

assertion, and there is nothing in the record to indicate that he was brought to Texas

under the IADA. Therefore, the provisions of Article IV of the IADA do not apply. See

Doster, 282 S.W.3d at 113.

       The order denying Harnage’s pretrial habeas application is affirmed.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 15, 2009
Do not publish
[CR25]




Ex parte Harnage                                                                   Page 4
