Ex parte Johnson

• Decision Date: 23 December 1980
• Docket Number: No. 65933,No. 1,65933,1
• Citation: 610 S.W.2d 757
• Parties: Ex parte David Robert JOHNSON
• Court: Texas Court of Criminal Appeals

Page 757

610 S.W.2d 757

Ex parte David Robert JOHNSON.

No. 65933.

Court of Criminal Appeals of Texas, Panel No. 1.

Dec. 23, 1980.

Rehearing Denied Feb. 11, 1981.

Pete Gilfeather, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, and James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS and TOM G. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

This is a habeas corpus proceeding. The applicant, David R. Johnson, seeks discharge from an order to return him to the State of Illinois by the Honorable Byron Matthews, Judge of the Criminal District Court No. 1 of Tarrant County. This is neither a typical extradition proceeding nor one under the Uniform Act for Out-of-State Parole Supervision, Article 42.11, V.A.C.C.P. This involves an agreement to waive extradition.

Johnson was convicted for a felony offense in Illinois. He entered into a parole agreement with the Parole and Pardon Board of the State of Illinois which contained, among others, the following provisions:

"Serve parole in Virginia only; if not accepted, to be returned to the board...."

and

"I do further agree that, should I be charged with a violation of my Illinois parole or should I be in another state, I will waive extradition and will not resist being returned to an Illinois Correctional Center."

August 5, 1980, Johnson was arrested in Tarrant County for being intoxicated in a public place. While he was in custody for that offense, the officers were notified by the authorities in Illinois that he was wanted for violation of his parole. He was held until a hearing on the application for writ of habeas corpus was held.

Johnson contends that the hearing judge erred in ordering him to be delivered to the authorities of the State of Illinois because he had never been transferred to Texas for parole supervision under the provisions of the Uniform Act of Out-of-State Parole Supervision.

Even though he had not been transferred to Texas for supervision, we hold that his agreement to voluntarily return to the State of Illinois for parole violation is sufficient for the hearing court's order.

He relies upon Ex parte Chambers, 525 S.W.2d 191 (Tex.Cr.App. 1975). That case is not in point. The opinion stated that Chambers was ordered to be delivered to the custody of a sheriff to be returned to New Mexico under Article 42.11, V.A.C.C.P., but Chambers had never been under the supervision of Texas for such parolees.

The Court held that a New Mexico sheriff was not entitled to arrest one in Texas for parole or probation violation where a defendant was not being supervised under Article 42.11, supra. The Chambers case did not involve an agreement to return to New Mexico for a parole violation.

Johnson also contends that he had been arrested in Dallas earlier and had been turned out. As above noted, he was under arrest in Tarrant County when the officials there received notice that he was wanted as a parole violator. When the hearing court was shown that he had agreed to return to the State of Illinois, his return was ordered, but not under the Uniform Act for the supervision of parolees.

There are cases from other jurisdictions in which waivers of extradition have been recognized and enforced without the necessity of formal extradition proceedings.

Cook v. Kern, 330 F.2d 1003 (5th Cir. 1964), is a case where an Illinois parolee signed a pre-release waiver of extradition, then absconded to Texas; the Texas sheriff arrested him on the basis of the Illinois parole violation warrant. There it was held inter alia, citing U. S. ex rel Simmons on Behalf of Gray v. Lohman, 228 F.2d 824 (7th Cir. 1955), a parolee is not deprived of any constitutional right by enforcement of his prior waiver of extradition as a condition of parole. The court noted particularly the Texas Uniform Parolee Supervision statute (now Article 42.11, V.A.C.C.P.) under which the State proceeded:

"Appellant contends that by proceeding under the Texas Uniform Parolee Supervision statute, Tex.Code Crim.Proc. art. 781c § 2(3), the State has denied him rights under the Texas extradition Law, Tex.Code Crim.Proc. Art. 1008a. Appellant argues that he has been deprived of his right to counsel, habeas corpus, bail, and 'his fundamental rights under the Fourteenth Amendment to the Constitution * * *.'

"Whatever the benefits appellant might have enjoyed under the Texas Extradition Statute, he has not been deprived of a federally protected right; therefore, the writ was properly denied. See Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148 (1906); Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905);

" '* * * (h)aving entered into such (parole) agreement, it is not discernible how or in what manner his constitutional rights are violated when it is sought, upon a violation, to obtain his return. Assuming, however, contrary to what we think that any constitutional right is involved, it is waived by the agreement which the parolee makes with the State.' 228 F.2d at 826."

This points out the clear difference as perceived in Ex parte Chambers, supra, and that is that the New Mexico authorities cannot come into Texas and unrestricted arrest and reconfine a parolee who is not being supervised by Texas under the Compact but Texas can apprehend and remand through its own authorities an absconding parolee who has signed a pre-release waiver of extradition, to the state granting parole, under either the authority...