The Honorable Tim

Criminal Di8trict Tarrant County 200West 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 extraditionproceeding.' 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, althoughwe did not address the particular situation .inwhich the person seekshabeas 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.3389The Honorable Tim Curry - page 2 (H-903)

The most recent Texas case on the questionwas decided almost 40 years ago, andheld that the statuteproviding for bail pending determinationof a habeas corpus appeal, the current article 44.35,Code of Criminal Procedure, includes extradition cases in itsoperation. 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 corpusrelief in an extraditionproceeding. However, it ie our opinion that the Anderson decision has been effectively supereededby Texas' adoptgon in 1951 of the Uniform Criminal ExtraditionAct (UCEA). Code Crim. Proc. art. 51.13. The UCEAprovidee that a person held for extradition may be admitted to bail before ieeuanceof a governor's warrant, but itmakes 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 similarto article 44.35 to provide for bail pending appeal froma remand to cuetody following denial of habeas corpusrelief, even in caseswhere the appellantwas held pursuant to a governor'swarrant 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. 66 627-8591Tex. Code C&m. Proc. art. 51.13. The New York courtsnow treat the UCEA as the controlling statute and denybail 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 stateswhich have adopted the UCEA, the courts have construed it to prohibit bail in extradition cases after issuanceof the governor's warrant, including the situationwhere theprisoner has applied for habeas corpus or has appealed from a remand to custody following denial of habeas corpusrelief. Deas " Weinehienk, 533 P.2d 496 (Col. 1975);Statev. Second Judicial Dist. C&, -- County of Washoe, 471P.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 statehave not previously construed a particular uniform statute, they "will refer to decisions of other cltatee

and will construe the statute in accordance

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

with the constructiongiven to the same statute in other juriedictione." Sutherland, Statutes and Statutory Conetruction, 4th Ed., 6 52.05 (1973). Therefore,we believe the Texas courtewill construe the UCBA to prohibit bail after issuance of the governor'swarrant in all cases. Since the UCBA, article 51.13,was adopted subsequent to thepassage of article 44.35 and since theprovisions of article 51.13 aremore 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'sW 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 CriminalAppeals has stated,with reference-to cases decided prior to the adoption of the UCEA, that "Ieluchcases 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 inAnderson 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 extraditionmay 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.3391The Xonorable Tim Curry - page 4 (H-803)

**APPRDVED:**

Opinion Cormuittee jwb

D.3392