The Honorable Tim 

Criminal Di8trict 

Tarrant County 

200 West Belknap 

Fort Worth, Texas 

Alrrmmn. T- 78711 

March 26, 1976 

curry 

At.torney 

76102 

Re: Whether a person 

arrested on a governor's 

warrant is entitled to 

bail pending the resolution 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 extradition 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 interpreting 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 controlling 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 cltatee and 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 Conetruction, 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; Conrmercial Stand. 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. . . ." 

755, 756 (Tex. Crim. App. 1955). 

Ex parte Peaire, 283 S.W.Zd 

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 proceedings. 

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 

D. 3392