’ 

E ORNEY GENERAL 

OFTEXAS 

AUSTIN m.T~xas 

WLL WILSON 

/42. c -*7 

A’PTORNEYOENERAI. January 24, 1961 c -ky-rMr. Jack Ross, Administrator 

Interstate Parole Compact 

Board of Pardons and Paroles 

Austin, Texas 

Dear Mr. Ross: 

Opir,ion No. WW-$39 

Re: Questions relative to the 

construction of Article 781c, 

Code of Criminal Procedure 

Your request for an opinion has been received and carefully considered 

by this office. We quote your letter, in part, as follows: 

"In order to clarify the procedures relating to Section 

2, paragraph (3) of Article 78~2, Code of Criminal Procedure, 

known as the Uniform Act for Out of State Parolee Supervision, 

your opinions on the following questions are respectfully 

requested. It should be noted that all states have adopted 

this Uniform Act. 

"1) When the parole or probation of a person, who 

is being supervised in the State of Texas for another 

state, Is revoked by the other state, may that state 

send its agents into the State of Texas and upon proper 

identification re-take physical custody of the parolee 

or probationer and return him to the sending state without extradition proceedings and without reference as to 

whether the person has signed a waiver of extradition 

in the State of Texas? 

"2) When a parolee or probationer is being supervised 

in one state for another state, neither being the State 

of Texas, and such person absconds to the State of Texas 

and his parole or probation is revoked, may the state of 

original jurisdiction take him in custody in Texas and 

return him to its jurisdiction without extradition proceedings under Article 78k, C. C. P.? 

"3) Can a person be admitted to bail in Texas when he is 

on,parole or probation from another state and when his 

parole or probation has been revoked and when the sending 
MI-. Jack Ross, Page 2 (w-989) 

state is in the process of returning him to its 

jurisdiction? 

"4) When authorized and directed. by the sending 

state, may a parolee or probationer from such state, 

who is being supervised in the State of Texas, be 

held in custody upon the order of the Administrator 

of the Compact for the State of Texas until a revocation warrant can be obtained from the sending state?" 

Section 2, paragraph (3) of Article 781~, Code of Criminal Procedure, 

states: 

"(3) That duly accredited officers of a sending state 

may at all times enter a receiving state and there apprehend 

and retake any person on probation or parole. For that purpose 

no formalities will be required other than establishing the 

authority of the officer and the identity of the person to be 

retaken. All legal requirements to obtain extradition of 

fugitives from justice are hereby expressly waived on the part 

of States party hereto, as to such persons. The decision of 

the sending state to retake a person on probation or parole 

shall be conclushve upon and not reviewable within the receiving state; provided, however, that if at the time when a state 

seeks to retake a probationer or parolee there should be pending agaainst him within the receiving state any criminal charge, 

or he should be suspected of having committed within such state 

a criminal offense, he shall not be retaken without the consent 

of the receiving state until discharged from prosecution or from 

imprisonment for such offense." 

To answer your first question, when the parole or probation of a person 

who is being supervised in the State of Texas for another state, is revoked by 

the other state, that state may send its,agents into the State of Texas and upon 

proper identification may take physical custody of the parolee or probationer 

and return him to the sending state witho& extradition proceedings and without 

reference to whether the person has signed a waiver of extradition in the State 

of Texas. In State of Alabama ex rel Bridges v. Waters, 108 So.2d 23 146 (Ala. 

s.ct. 1959) the Alabal na Supreme Court held that the receiving state could.not 

reasons for revoking parole. In Woods v. State, 

-__~. .._. 

inquire into the sending state's 

87 So.2d 633 (Ala. ~S,C'f,* 1956) the Alabama Supreme Court upheld the constitutionality of the Compact against * claim that l.t violated the due process clause of 

the Constitution. In tire case of Guile y, Sheriff v. Apple, 210 S.W.2d 514 (Ark. 

1948) the Arkansas Supreme Court h.eLdhat the Interstate Parole Compact did not 

violate the right of habeas corpus, and also stated that federal extradition 

procedure was not intended. to prevent states from making other arrangements for 
Mr. Jack Ross, Page 3 (w-989) 

extradition. The leading case on the Compact is Ex perte Tenner, 128 P.2d 338 

(Cal. S.Ct. 1942) cert. denied 314 U.S. 585, 317 U.S. 597. This case covered 

almost all aspects of the Compact's constitutionality. The United States 

Supreme Court refused to review the favorable decision of the California Supreme 

court. 

The only Texas case touching on the Uniform Act for Out of State Parolee 

Supervision is Ex parte Margaret Ann Smith, 339 S.W.2d 671 (Tex.Crim. 1960). In 

denying an application for habeas corpus, the Court stated in part: 

"The Governor of Texas has executed the compact as authorized 

and directed by the Legislature, and the State of Ohio is atparty 

to the compact. 

"The Congress of the United States has consented to any two 

or more states entering into such a compact. 4 U. S. C. A., Sec. 

111. 

"The statute authorizing and directing the Governor of Texas 

to execute the compact on behalf of this State isattacked as unconstitutional, the ground being that because of the use of the word 

'substantially' the statute is a delegation of legislative authority 

to the executive branch of government. 

"No authority is cited in support of such contention and we 

know of none. 

"'Substantially', as used in this statute, we understand 

means all that is necessary or essential. The statute in effect 

requires that the compact to be executed by the Governor embody 

the substance of the form set out therein, but does not require 

that it be in the exact words set out in the statute. 

"There is no suggestion that the compact executed varies in 

any materiel manner from the language of the statute." 

Ex perte Tenner? supra, reeds in pert: 

"The Compact represents the social policy of both California 

and Washington in this regard, It is a uniform agreement for cooperative effort and mutual assistance in the prevention of crime and 

in the enforcement of the criminal laws of each state within the contemplation of the federal legislation and therefore does not violate 

the prohibition of the Cotiitution concerning compacts between states. 

. e 0 The existence of an independent method of securing the return 

of out-of-state parolees does not conflict with nor render ineffectual 

the federal laws with relation to extradition. I 0 . And since the 
Mr. Jack Ross, Page 4 (w-989) 

statute applies uniformly to all parolees from states party 

to the compact, the petitioner may not complain that the 

statute deprives him of the equal protection of the laws." 

In answer to the second question, it is our opinion that when a parolee 

or probationer is being supervised in one state for another state, neither 

being the State of Texas and such person absconds to the State of Texas and his 

parole or probation is revoked, the state of original jurisdiction may take him 

into custody in Texas and return him to its jurisdiction without extradition 

proceedings under Article 781~, Code of Criminal Procedure. In a 1955 case 

before the New York Supreme Court, People ex rel Marro Y. Ruthazer, 140 N.Y.S.2d 

571, the court when faced with such a problem declared only that all three 

states were members of the Compact and the sending state could take him back. 

In re Severa, a 1953 North Carolina Superior Court case, the court held that 

although North Carolina was not the receiving state to which Severa had been 

sent under the Compact, Severa had agreed in his waiver not to contest any effort 

"by any state", to return him to New Jersey, and that New Jersey might retake him 

without extradition. In a 1955 opinion, the Wyoming Attorney General allowed 

this procedure as did. the Idaho Attorney General in a 1956 opinion. 

For your third question, you asked whether a person may be admitted to 

bail in Texas when he is on parole or probation from another state, when his 

parole or probation has been revoked, and when the sending state is in the process of returning him to its jurisdiction. The Attorney General of North Carolina 

is the only official to deal directly with this problem. In an opinion dated 

November 7, 1959, that office stated that out-of-state parolees under supervision 

in North Carolina may be arrested upon issuance of a temporary revocation warrant 

by the North Carolina Compact Administrator. Such parolees are not entitled to 

bail when they are being held in custody pending the sending state's decision as 

to their return. Bail in such situations was not contemplated by the statute. 

Article 1, Section 11 of the Constitution of the State of Texas provides in part: 

"All prisoners shall be bailable by sufficient sureties, 

unless for capital offenses, when the proof is evident." 

However, this section has been held to secure the right of bail only to those 

prisoners who have not been tried and convicted. Ex parte McBride, 2 S.W.2d 

267 (Tex.Crim. 1928), held that Section 11 of Article 1 of the Texas Constitution has reference to prisoners before conviction. Prisoners after conviction 

were held not to be guaranteed the right of bail. Other Texas cases holding 

this are Ex carte Bzell, 40 Tex. 451; Ex parte Schwartz, 2 Tex.App. 74; Warnock 

Y. State. 6 Tex.Ano. 450: Ex oarte McCorkle, 29 Tex.App. 20. In our situation 

these parolees or-probationers have all been tried and convicted and there is 

no authority for admitting to bail such parolees or probationers. 

Section 2, paragraph (2) of Article 781.~, Code of Criminal Procedure, 

known as the Uniform Act for Out-of-State Parolee Supervision, reads as follows: 
Mr. Jack ROBS, Page 5 (w-989) 

"(2) That each receiving state will assume the duties of 

visitation of and supervision Over probationers or parolees of 

any sending state and in the exercise of those duties will be 

governed by the same standards that prevail for its own probationers and parolees." 

Then, Section 21 of Article 78~3, Code of Criminal Procedure, known as the Adult 

Probation and Parole Law of 1957, reads: 

"Upon order by the Governor, the Roard is authorized to 

issue a warrant for the return of any paroled prisoner to the 

institution from which he was paroled. Such warrant shall 

authorize all officers named therein to return such paroled 

prisoner to actual custody in the penal institution from which 

he was paroled. Pending hearing, as hereinafter provided, upon 

any charge of parole violation, the prisoner shall remain incarcerated in such institution. 

.* . . 

Construing the above sections of these two acts together, it seems 

apparent that bail in the cases of out-of-state parolees or probationers being 

supervised in Texas is not to be permitted. 

In answering your fourth question, when authorized and directed by the 

sending state, a parolee or probationer from such state who is being supervised 

in the State of Texas may be held in custody upon the order of the Administrator 

of the Compact for the State of Texas until a revocation warrant can be obtained 

from the sending state. In State of Alabama ex rel. Bridges Y. Waters, supra, 

the Alabama Supreme Court held that the Compact authorized apprehension of 

parolees by officers of the sending state, but did not prevent their apprehension 

by officers of the receiving state. In Stone v. Robinson, 219 Miss. 456, 69 So. 

2d 206 (Miss. S.Ct. 1954) the MiBsiBBippi Supreme Court held that Stone could be 

retaken wi,thout having his parole revoked, that Louisiana's certificate and 

warrant were admissable in evidence and that Mississippi's arrest warrant (the 

receiving statess) was authorized by the Compact. The Attorneys General of 

Arkansas (1957) and North Carolina (1959) have both declared that out-of-state 

parolees under supervision in the receiving state may be arrested upon issuance 

of a temporary revocation warrant by the Compac tAdministrator of the receiving 

state, or arrested and detained temporari,ly without a warrant upon parole violation. 

SUMMARY 

1. When the parole or probation of a person who is being SUperviSed 

in the State of Texas for another state is revoked by the other state, 

that state may send its agents into the State of TeXaB and upon proper 

identification retake physical custody of the parolee or probationer 

and return him to the Bending state without extradition proceedings 
Mr. Jack ROBS, Page 6 (wwi989 ) 

and without reference to whether the person has signed a 

waiver of extradition in the State of Texas. 

2. When a parolee or probationer iB being sUperViSed in one 

state for another state, neither being the State of Texas, and 

such person absconds to the State of TeXaB and his parole or 

probation is revoked, the state of original jurisdiction may 

take him into custody in Texas and returnhim to its jurisdiction, without extradition proceedings, under Article 781~, 

Texas Code of Criminal Procedure. 

3. A person is not to be admitted to bail in Texas when he is 

on parole or probation from anothersstate, when his parole or 

probation has been revoked, and when the Bending state is in the 

process of returning him to its jurisdiction. 

4. When authorized and directed by the Bending state, a parolee 

or probationer from another state who is being SUperviSed in the 

State of Texas may be held in CUBtOdy upon the order of the 

AdminiBtI%tOr of the Compact for the State of Texas until a revocation warrant can be obtained from the Bending state. 

Yours very truly, 

WILL WILSON 

Attorney General of TeXaB 

GLRNNR. BROWN 

@BiBtad 

APPROVED: 

OPINION COMMITTIZH 

W. V. Geppert, Chairman 

Joe M&asters 

L. P. Lollar 

Virgil Pulliam 

Mary K. Wall 

RRVIEWEDFORTHRA~O~NY GENERAL 

BY: Houghton Brownlee, Jr.