’



### 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 requestfor an opinion has been received

and carefully

considered by this office. We quoteyour 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

physicalcustody

of the parolee or probationer

and returnhim to the sendingstatewithout extradition

proceedings

and withoutreference as to whetherthe personhas signeda waiver of extradition in the State of Texas? "2) When a paroleeor 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 originaljurisdiction take him in custodyin Texas and returnhim to its jurisdiction without extraditionproceedings

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 revokedand when the sendingMI-.

Jack Ross, Page 2 (w-989)

state is in the processof returning him to its jurisdiction? "4) When authorized and directed.

by the sending state, may a paroleeor 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 Compactfor the State of Texas until a revocationwarrant can be obtained from the sendingstate?" Section2, paragraph (3) of Article 781~, Code of Criminal Procedure, states: "(3) That duly accredited officers

of a sendingstate may at all times enter a receiving state and there apprehend and retakeany person on probation or parole. For that purpose no formalities

will be required

other than establishing the authority

of the officerand 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 Statesparty hereto, as to such persons. The decision of the sending stateto retakea 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 retakea probationer or paroleethere 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 shallnot be retaken withoutthe consent of the receiving

stateuntil discharged from prosecution

or from imprisonment

for such offense."
To answeryour 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 statemay send its,agents into the State of Texas and upon proper identification may take physicalcustody of the paroleeor probationer and return him to the sendingstatewitho& extradition proceedings

and without reference

to whetherthe person has signeda 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 reasonsfor revoking parole. In Woods v. State, 

### -__~. .._. inquireinto the sendingstate's 87 So.2d 633 (Ala.

~S,C'f,* 

### 1956) the Alabama SupremeCourt upheld the constitutionality of the Compact

### against * claim that l.t

violated

the due processclause of the Constitution. In tire case of Guile

y, Sheriff

v. Apple, 210 S.W.2d 514 (Ark. 

### 1948) the ArkansasSupremeCourt h.eLdhat the Interstate Parole Compactdid not violatethe right of habeas corpus, and also stated

that federalextradition procedure

was not intended.

to prevent states from making other arrangements forMr. Jack Ross, Page 3 (w-989)

extradition.The leadingcase on the Compactis 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 aspectsof the Compact's constitutionality. The United States SupremeCourt refused to reviewthe 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 Stateshas consented to any two or more statesenteringinto such a compact. 4 U. S. C. A., Sec. 111. "The statute

authorizing

and directing

the Governor

of Texas to executethe compact on behalf of this State isattacked as unconstitutional,

the groundbeing that because of the use of the word 'substantially'

the statuteis 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 statutein 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 exactwords set out in the statute. "There is no suggestion that the compactexecuted varies in any materiel

manner from the language of the statute."
Ex perte Tenner? supra,reeds in pert: "The Compactrepresents the social

policy of both California and Washington

in this regard, It is a uniformagreement for cooperativeeffortand mutual assistance in the prevention

of crime and in the enforcement

of the criminal

laws of each state

within the contemplation

of the federallegislation 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 federallaws with relation to extradition.

I 0
. And sincetheMr. Jack Ross, Page 4 (w-989)
statute

applies

uniformly

to all paroleesfrom 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 secondquestion, 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 originaljurisdiction may take him into custodyin Texas and returnhim to its jurisdiction without extradition proceedings

under Article781~, Code of Criminal Procedure. In a 1955 case before the New York SupremeCourt,People ex rel Marro Y. Ruthazer,140 N.Y.S.2d 571, the courtwhen facedwith such a problemdeclared only that all three states were membersof the Compactand the sendingstate 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 Severahad been sent under the Compact, Severahad agreed in his waiver not to contest any effort "by any state",

to returnhim to New Jersey,and that New Jersey might retakehim without extradition. In a 1955 opinion, the Wyoming

Attorney

Generalallowed this procedure

as did. the IdahoAttorney

General in a 1956 opinion.
For your third question, you asked whethera personmay 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 sendingstate is in the process of returning

him to its jurisdiction. The Attorney

Generalof North Carolina is the only official to deal directly

with this problem. In an opinion dated November7, 1959, that office statedthat 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 pendingthe sending state's decision

as to their return. Bail in such situations was not contemplated by the statute. Article 1, Section11 of the Constitution of the State of Texas providesin part: "All prisoners

shallbe bailable

by sufficient

sureties, unless for capitaloffenses, when the proof is evident." However,this section has been held to securethe 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 Section11 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. OtherTexas 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 paroleesor-probationers have all been tried and convicted and there is no authority

for admitting

to bail such parolees or probationers. Section2, paragraph (2) of Article781.~, 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 statewill assume the duties of visitation

of and supervision

Over probationers

or parolees

of any sendingstate and in the exercise of those dutieswill be governed

by the same standards that prevail for its own probationersand parolees." Then, Section21 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 thereinto return such paroled prisoner

to actual custodyin the penal institution from which he was paroled. Pendinghearing, as hereinafter

provided,

upon any charge of paroleviolation, the prisoner shall remain incarceratedin 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 paroleeor 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 sendingstate. In State of Alabama ex rel. Bridges Y. Waters, supra, the Alabama SupremeCourt held that the Compactauthorized apprehension

of parolees

by officers

of the sendingstate, but did not preventtheir apprehension by officers

of the receiving

state. In Stone v. Robinson, 219 Miss. 456, 69 **So.** 2d 206 (Miss.S.Ct. 1954) the MiBsiBBippi SupremeCourt held that **Stone** couldbe retaken

wi,thout

havinghis parole revoked, that Louisiana's

certificate

and warrant

were admissable

in evidence

and that Mississippi's arrestwarrant (the receiving

statess)

was authorized

by the Compact. The Attorneys Generalof Arkansas (1957)

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

under supervision

in the receiving

statemay be arrested upon issuance of a temporary

revocation

warrant

by the Compac

t Administrator

of the receiving state,or arrested

and detained

temporari,ly

withouta warrantupon paroleviolation. SUMMARY

1. When the parole or probation of a personwho is being SUperviSed in the State of Texas for another state is revoked by the other state, that statemay send its agents into the State of TeXaB and upon proper identification

retakephysicalcustodyof the paroleeor probationer and returnhim to the Bendingstatewithout extradition proceedingsMr. Jack ROBS, Page 6 (wwi989 ) and withoutreference to whetherthe person has signed a waiver of extradition in the State of Texas.
2. When a paroleeor 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 originaljurisdiction may take him into custody in Texas and returnhim to its jurisdiction, without extradition proceedings,

under Article781~, 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 Bendingstate is in the processof returning him to its jurisdiction. 4. When authorized and directed

by the Bendingstate,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

Generalof TeXaB

GLRNNR. BROWN @BiBtad APPROVED: OPINIONCOMMITTIZH W. V. Geppert,

Chairman
Joe M&asters L. P. Lollar Virgil Pulliam Mary K. Wall
RRVIEWEDFORTHRA~O~NY GENERAL BY: Houghton

Brownlee,

Jr.