                                    NO. 07-02-0141-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                 NOVEMBER 20, 2002
                           ______________________________

                                     STEVEN BROOKS,

                                                           Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2002-001,636; HON. JIM BOB DARNELL, PRESIDING
                        _______________________________

Before QUINN, REAVIS, and JOHNSON, JJ.

       In two issues, appellant Steven Brooks challenges the trial court’s denial of his

petition for writ of habeas corpus. Through that document he contested his arrest under

a governor’s warrant and the right of the State of Illinois to extradite him to be tried for the

offense of robbery. Before us, he asks 1) whether the State of Illinois forfeited its right to

enforce extradition and 2) whether the State of Texas must extradite a fugitive to another

state when, under the same circumstances, the requesting state would not extradite a

fugitive to Texas. We affirm the order of the trial court.
                                          Background

         In May 1999, appellant was arrested in Travis County for a robbery alleged to have

been committed in Cook County, Illinois. He waived extradition and was held in jail for six

or seven days but then released because no agent from Illinois came to gather him. In

October 1999, appellant was arrested a second time in Burnet County for the same

offense. He waived extradition and was held for ten days. Once again, he was released

when no agent from Illinois arrived to claim him. Then, in December 2001, he was arrested

a third time in Lubbock County. Appellant waived extradition once again and was detained

for eight or nine days before being released for the same reasons as before. Finally, he

was arrested a fourth time in February 2002. He initially waived extradition and was held

for three days in the Lubbock County jail. Yet, when no agent arrived to pick him up, he

withdrew his waiver with the trial court’s permission and contested the warrant by filing an

application for writ of habeas corpus. The trial court denied the application.

                       Issue One - Forfeiture of Right to Extradite

         In his first issue, appellant argues that Illinois forfeited its right to extradite him

because of the previous three incomplete extraditions. We disagree and overrule the

issue.

         Extradition proceedings are intended to be limited in scope so as to facilitate transfer

of custody between states. Thus, it has been held that the court in the asylum state may

only determine 1) whether the extradition documents are in order on their face, 2) whether

the petitioner has been charged with a crime in the demanding state, 3) whether the

petitioner is the person named in the request for extradition, and 4) whether the petitioner



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is a fugitive. Michigan v. Doran, 439 U.S. 282, 288-89, 99 S. Ct. 530, 535, 58 L. Ed.2d 521

(1978); Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000); Stelbacky v. State,

22 S.W.3d 583, 587 (Tex. App.—Amarillo 2000, no pet.). In this instance, appellant

stipulated that the answers to each of the foregoing questions was yes.

        Nevertheless, appellant insists that because the State of Illinois had caused him to

be arrested three times before his current arrest but failed to complete extradition during

those three prior arrests, he now cannot be extradited. In short, it forfeited its right to have

him returned, according to appellant. And, this is allegedly so because precedent from

Illinois itself holds as much.

        The precedent to which appellant alludes is People ex rel. Bowman v. Woods, 46

Ill.2d 572, 264 N.E.2d 151 (1970). There, the State of Alabama had Woods arrested a

total of three times, and the delay between the first and third arrests was 13 years. Given

these circumstances, the court held that “[w]hile normally the mere passing of time will not

discharge [a fugitive], at a certain point and after a certain number of incompleted

extraditions, we must find that [Alabama] . . . forfeited its right to enforce extradition.” Id.

at 575-76. Yet, not only has an Illinois appellate court questioned the continued vitality of

Woods, e.g., People v. Martin, 208 Ill. App. 3d 857, 873, 567 N.E.2d 1097, 1100 (Ill. App.

Ct. 1991), but also no Texas court has deigned to follow Woods.1

        Indeed, because the United States Supreme Court in Doran specified that only the

four issues it stated therein (and which we mentioned above) can be raised in an

extradition proceeding, our own Court of Criminal Appeals has ruled that a trial court “was


        1
          It was noted in Ma rtin, that W oods was decided long before Doran. Pe ople v. Martin, 208 Ill. App.
3d 8 57, 873, 567 N .E.2d 109 7, 1100 (Ill Ap p. Ct. 1991).

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without authority to consider equitable issues” when deciding whether one awaiting

extradition should be granted habeas relief. State ex. rel. Holmes v. Klevenhagen, 819

S.W.2d 539, 543 (Tex. Crim. App. 1991) This directive, in turn, served as the basis for the

intermediate court of appeals in Ex parte Sanchez, 987 S.W.2d 951 (Tex. App.—Austin

1999, pet. ref’d, untimely filed), to conclude that “a state does not forfeit its right to demand

extradition by failing to act at the earliest opportunity.” Id. at 953. Consequently, the

Sanchez court rejected the argument that Michigan was “estopped” from securing

extradition because it failed to take custody of the fugitive when he was previously arrested

in 1987. Id.2

         Thus, in Texas we have the Court of Criminal Appeals stating that equitable issues

have no place in an extradition proceeding. So too do we have an intermediate appellate

court holding that previous delay in extraditing fugitives does not estop the state from later

pursuing extradition. To this we add the general rules that 1) limitations, laches and

estoppel may not be invoked against a state, State v. Durham, 860 S.W.2d 63, 67 (Tex.

1993), 2) the forfeiture of rights is not favored, Affiliated Capital Corp. v. Southwest, Inc.,

862 S.W.2d 30, 33 (Tex. App.--Houston [1st Dist.] 1993, writ denied), and 3) a court

considering habeas relief by one awaiting extradition can do no more than address the four

subjects specified in Doran (none of which encompass forfeiture, estoppel and like


         2
          Appellant sug ges ts that a conflict of authority exists in Texas regarding the applicability of W oods.
Sanchez is cited as an example of one intermediate appellate court rejecting the Illinois decision while Ex
parte McClintick, 945 S.W .2d 188 (Tex. App.—San Antonio 1997, no writ) is purportedly an exam ple of a court
approving of W oods. However, the passage in McClintick to which appellant alludes merely states; “[u]nlike
the situation in . . . W oods . . . here we are not faced with a lengthy delay between extradition proceedings that
wo uld raise a fairness que stion.” Id. at 190-91. In s aying that it w as not faced with a situatio n lik e that in
W oods, the San Antonio Court of Appeals hardly “recognized that a lengthy delay between extradition
proceedings ‘would rais e a fairness question ,’” as appellant su ggests. It jus t sa id that the issue was not before
it. So we perceive no conflict of authority in Texas.

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theories). And, in contemplating the sum of the foregoing rules and directives, we cannot

but reject appellant’s contention at bar. Delay in completing prior attempts at extradition,

even though the fugitive awaited extradition after having been arrested several times, does

not alone bar later attempts at extradition.

                                    Issue Two - Comity

       Via his second issue, appellant invokes the theory of comity to prevent his

extradition. Through this theory he would be insulated because Illinois allegedly would not

have extradited him to Texas had Texas been seeking him under similar circumstances.

We overrule the issue.

       Comity is a principal of mutual convenience whereby one state or jurisdiction gives

effect to the laws and judicial decisions of another out of deference or respect. Smith v.

Lanier, 998 S.W.2d 324, 336 (Tex. App.—Austin 1999, pet. denied). Furthermore, it has

been held that Texas should not extend comity to another state that would not extend

comity to Texas under the same or similar circumstances. K.D.F. v. Rex, 878 S.W.2d 589,

594 (Tex. 1994).

       Yet, in asserting state concepts of comity to bar his extradition, appellant forgets that

extradition is not a matter of state law.          Rather, it arises from the United States

Constitution. According to article four, section two, clause two of that document:

       A person charged in any State with Treason, Felony, or other Crime, who
       shall flee from Justice, and be found in another State, shall on Demand of
       the executive Authority of the State from which he fled, be delivered up, to
       be removed to the State having Jurisdiction of the Crime.

Congress furthered this constitutional directive by enacting federal legislation declaring that




                                               5
       [w]henever the executive authority of any State or Territory demands any
       person as a fugitive from justice, of the executive authority of any State,
       District, or Territory to which such person has fled, and produces a copy of
       an indictment found or an affidavit made before a magistrate of any State or
       Territory, charging the person demanded with having committed treason,
       felony, or other crime, certified as authentic by the governor or chief
       magistrate of the State or Territory from whence the person so charged has
       fled, the executive authority of the State, District, or Territory to which such
       person has fled shall cause him to be arrested and secured, and notify the
       executive authority making such demand, or the agent of such authority
       appointed to receive the fugitive, and shall cause the fugitive to be delivered
       to such agent when he shall appear. . . .

18 U.S.C.A. §3182 (2000). More importantly, the United States Supreme Court has

indicated clearly that the wording of §3182 is not permissive but mandatory. That this is

so is illustrated not only by the court italicizing the word “shall” when quoting the statute in

Doran, 439 U.S. at 287-88, 99 S. Ct. at 534, but also by holding that

       [o]nce the governor has granted extradition, a court considering release on
       habeas corpus can do no more than decide (a) whether the extradition
       documents on their face are in order; (b) whether the petitioner has been
       charged with a crime in the demanding state; (c) whether the petitioner is the
       person named in the request for extradition; and (d) whether the petitioner
       is a fugitive.

Id. at 439 U.S. at 289, 99 S.Ct. at 534 (emphasis added). In short, extradition is mandated

by both the Constitution and federal law. And, being so mandated, neither can be avoided

through invocation of some state doctrine or law without running afoul the Supremacy

Clause of the United States Constitution. House v. Mayes, 219 U.S. 270, 282, 31 S.Ct.

234, 236, 55 L.Ed.2d 213 (1911) (holding that a state may exercise authority that is not in

conflict with the federal constitution). So irrespective of what Texas state courts may say

about Texas theories of comity, those theories cannot be invoked to supercede or alter the




                                               6
mandate of article four, section two, clause two of the Constitution or §3182 of title 18 of

the United States Code.

       Next, to the extent that appellant suggests that “extradition is, ultimately a matter of

comity or compact between the states,” we have to disagree. Admittedly, the United States

Supreme Court has described the need for comity among the states as the reason for

article four, section two, clause two of the United States Constitution. Doran, 439 U.S. at

287-88, 99 S.Ct. at 534-35. Yet, it did so not as a means of suggesting that the states are

free to choose whether to extradite those accused of crimes but as a means of illustrating

the need for states to cooperate with each other. Simply put, the clause was enacted to

prevent one state “from becoming a sanctuary for fugitives from justice of another state

and thus ‘balkanize’ the administration of criminal justice among the several states.” See

id. So, those drafting the constitution incorporated this view of comity in “mandatory

language” via enactment of article four, section two, clause two of the Constitution. Id.

And, again, because it is now mandated by the Constitution rather than notions of

deference and respect, one state cannot ignore the directive merely because another

improperly did so. In those simple yet meaningful words of mothers throughout this nation,

“two wrongs do not make a right.”


       Accordingly, the order of the trial court denying the writ of habeas corpus is affirmed.


                                                   Brian Quinn
                                                     Justice



Publish.



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