                   Alrrmmn. T-          78711

                     March 26, 1976




The Honorable Tim curry
Criminal Di8trict At.torney
Tarrant County                          Re: Whether a person
200 West Belknap                        arrested on a governor's
Fort Worth, Texas 76102                 warrant is entitled to
                                        bail pending the reso-
                                        lution of a habeas corpus
                                        proceeding.
Dear Mr. Curry:
     You have requerted our opinion aa to the availability
of bail in an extradition proceeding.' Specifically, you
ask:

          Following the arrest of an alleged
          fugitive on a governor's warrant, may
          a court of record enlarge said alleged
          fugitive on bail during the pendency of
          a habeas corpue proceeding (including
          an appeal from an adveroe ruling)?
     In Attorney General Opinion H-612 (19751, we held that
bail was not available to one who has been arrested on a
governor's warrant, although we did not address the particular
situation .in which the person seeks habeas corpus relief and
requests bail during the pendency of these proceedings.
Nevertheless our answer in such a case is the same. Although
one arrested on a governor's warrant is entitled to apply
for a writ of habeas corpus , he may not be enlarged on bail
during such proceedings.




                              p. 3389
The Honorable   Tim Curry - page 2 (H-903)


     The most recent Texas case on the question was decided
almost 40 years ago, and held that the statute providing
for bail pending determination of a habeas corpus appeal,
the current article 44.35, Code of Criminal Procedure, includes
extradition cases in its operation.
s.w.Zd 551 (Tex. Grim. App. 1936). TEs~t~~f:::~~~:
applicable, a person would be entitled to bail pending
determination of an appeal from a remand to custody following
denial of habeas corpus relief in an extradition proceeding.
However, it ie our opinion that the Anderson decision has
been effectively supereeded by Texas' adoptgon in 1951 of the
Uniform Criminal Extradition Act (UCEA). Code Crim. Proc.
art. 51.13. The UCEA providee that a person held for extra-
dition may be admitted to bail before ieeuance of a governor's
warrant, but it makes no provision for bail after the governor’s
warrant ie issued. Code Crim. Proc. art.  51.13, 6 16.

     The Anderson court relied on a New York decision inter-
preting a statute similar to article 44.35 to provide for
bail pending appeal from a remand to cuetody following
denial of habeas corpus relief , even in cases where the
appellant was held pursuant to a governor's warrant in an
extradition proceeding. Ex parte Anderson, supra at 552.
Both New York and Texae e~eequently adopted the UCEA. N.Y.
Code Grim. Proc. 66 627-8591 Tex. Code C&m. Proc. art.
51.13. The New York courts now treat the UCEA as the con-
trolling statute and deny bail in habeas corpus proceedings
after iesuance of a governor’s  warrant. People ex. rel.
                      N.Y.S.2d 964 (Cty.Ct. 19fO),am      314
                       1970).
     In other states which have adopted the UCEA, the
courts have construed it to prohibit bail in extradition
cases after issuance of the governor's warrant, including
the situation where the prisoner has applied for habeas
corpus or has appealed from a remand to custody following
denial of habeas corpus relief. Deas " Weinehienk, 533
P.2d 496 (Col. 1975); --
                      State v. Second Judicial Dist. C&,
County of Washoe, 471 P.2d 224 (Nev.lmchanan         v.
State, x6-       596 @'la. 1964); Allen v. Wild 96
mIa.     1957); Waller 5 Jordan, m.m       as6\ArizW?9:?,.
When courts of a state have not previously construed a
particular uniform statute, they "will refer to decisions of
other cltateeand will construe the statute in accordance




                             p. 3390
The Bonorable Tim Curry    - page 3 (H-603)



with the construction given to the same statute in other
juriedictione." Sutherland, Statutes and Statutory Conetruc-
tion, 4th Ed., 6 52.05 (1973). Therefore, we believe the
Texas courte will construe the UCBA to prohibit bail after
issuance of the governor's warrant in all cases.
      Since the UCBA, article 51.13, was adopted subsequent
to the passage of article 44.35 and since the provisions of
article 51.13 are more specific in that they speak only to
extradition cases, article 51.13 controls in the event of a
conflict between the two statutes. V.T.C.S. art. 5429b-2. 66
3.05(a) and 3.06; ConrmercialStand. F.&M. Co. v. Commieeioner
of Insurance, 429's W 2d 936,---                     A ii
m6a, no writ). Se; hillman v State 407 S.W.Zd 75:' 7:2
(Tex. Grim. APP. lV92)~e~~tantly,
                 --                            the Co&    of
Criminal Appeals has stated, with reference-to   cases decided
prior to the adoption of the UCEA, that "Ieluch cases ceased
to be authority following this baeic change-in our law
relating TV extradition. . . ." Ex parte Peaire,    283 S.W.Zd
755, 756 (Tex. Crim. App. 1955).
     Based on the foregoing authoritiee, we believe that the
adoption of the UCBA by the Texas Legislature superseded the
holding in Anderson and, therefore, that a person held for
extradition under a governor's warrant may not be enlarged
on bail pending final determination of habeas corpus pro-
ceedings.
                          SUMMARY
          A person held for extradition may not
          be admitted to bail after ieeuance of
          governor’s warrant pending determination
          of a habeas corpus proceeding or of an
          appeal from a remand to custody.
                                    Very truly yours,


                                    JOHN L. HILL
                                    Attorney General of Texas




                            p. 3391
The Xonorable Tim Curry - page   4 (H-803)


APPRDVED:




Opinion Cormuittee

jwb




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