Ex parte Windsor, 10-14-00401-CR
| Decision Date | 14 January 2016 |
| Docket Number | No. 10-14-00401-CR,10-14-00401-CR |
| Parties | EX PARTE WILLIAM M. WINDSOR |
| Court | Texas Court of Appeals |
From the 40th District Court Ellis County, Texas
MEMORANDUM OPINIONAfter he had participated in a hearing in a civil suit in district court in Ellis County on October 28, 2014, Appellant William M. Windsor was taken into custody by the Ellis County Sheriff's Department pursuant to an arrest warrant (a bench warrant) from Missoula County, Montana for three alleged felonies and two alleged misdemeanors with bail preset at $100,000.1
Windsor was taken to the Ellis County Jail and was arraigned the next day (October 29) before a magistrate (a justice of the peace), who set bail for Windsor at $100,000.2 In an order signed on November 21, 2014, the trial court ordered Windsor "committed to jail to await the issuance of a governor's warrant of extradition." The order further set a hearing for December 19 "to determine if a governor's warrant has been issued" and also noted that bail had been set at $100,000. That order was entered in conjunction with a November 21 "extradition hearing" where Windsor appeared without counsel and refused to waive extradition and be immediately returned to Montana. Also in the hearing, Windsor referred to a pro se habeas application that he had attempted to file on November 18, but he said that it had been returned unfiled.3 Windsor also complained that he had attempted to arrange for posting a bond4 and that Montana would not accept a Texas bond or a Montana bond.
The reporter's record of a proceeding held on November 25 indicates that Windsor had filed another pro se habeas application on November 21, and the trial court stated to Windsor that it did not have habeas jurisdiction but only jurisdiction for extradition, which Windsor was refusing to waive.5 Windsor again recounted that Montana hadrefused to accept a Texas bond or a Montana bond. Once Windsor's bail was set at $100,000 at his October 29 arraignment, it is unclear to us what role Montana would have had in his posting a bail bond, which was set in accordance with Texas law. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 16 ().
On December 2, an attorney for Windsor filed an "application for writ of habeas corpus seeking bail and/or bail reduction and challenging legality of arrest pursuant to article 51.13, § 10 (Tex. Code Crim. Proc.)." It alleged that Windsor was being illegally confined for more than thirty days without a Governor's warrant, in violation of sections 15 and 17 of article 51.13 of the Code of Criminal Procedure, and because of the Ellis County Sheriff's failure to accept a bail bond.6 Finally, the application asserted that the$100,000 bail is excessive. The application sought either Windsor's discharge or bail in a reasonable amount conditioned on Windsor's appearance at the December 19 hearing.
Section 15 provides:
If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and except in cases arising under Section 6, that he has fled from justice, the judge or magistrate must, by warrant reciting the accusation, commit him to the county jail for such time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the Executive Authority of the State having jurisdiction of the offense, unless the accused give bail as provided in the next section, or until he shall be legally discharged.
As noted above, Windsor was taken into custody on October 28—without a Texas arrest warrant but on a probable-cause affidavit of Ellis County Sheriff's Deputy Matt Overcash pursuant to the Montana bench arrest warrant—and was arraigned on October 29.7 It appears that Windsor was not taken before a judge or magistrate until November 21. See id. art. 51.13, § 14 () (emphasis added); see also Ex parte Wall, No. 02-11-00326-CR, 2012 WL 5869595, at *7 (Tex. App.—Fort Worth Nov. 21, 2012, no pet.) (mem. op., not designated for publication) (concluding "that underthe facts of this case, fifteen days was not an unreasonable amount of time for the fugitive warrant to be issued").
Section 17 provides:
If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days, or a judge or magistrate may again take bail for his appearance and surrender, as provided in Section 16, but within a period not to exceed sixty days after the date of such new bond.
A hearing was held on the habeas application on December 5. Windsor's attorney argued that Windsor had been committed to jail for more than thirty days, that the most he could be committed was ninety days under sections 15 and 17, and that because the court had not extended the commitment for up to sixty days under section 17, Windsor should be discharged. The State responded by asserting that article 51.05 of the Code of Criminal Procedure applied and that it allows for commitment for no longer than ninety days. That article provides:
When the accused is brought before the magistrate, he shall hear proof, and if satisfied that the accused is charged in another State with the offense named in the complaint, he shall require of him bail with sufficient security, in such amount as the magistrate deems reasonable, to appear before such magistrate at a specified time. In default of such bail, he may commit the defendant to jail to await a requisition from the Governor of the State from which he fled. A properly certified transcript of an indictment against the accused is sufficient to show that he is charged with the crime alleged. One arrested under the provisions of this title shall not be committed or held to bail for a longer time than ninety days.
The State then argued that the thirty-day time period set forth in section 15 ofarticle 51.13 was not triggered until Windsor appeared in district court at the November 21 hearing because, the State asserted, Windsor's October 29 arraignment had been before a justice of the peace, and only a court of proper jurisdiction can trigger the extradition procedures, including section 15's thirty-day window, under article 51.13.8 But see id. art. 51.13, § 10(b) ().9 At the subsequent December 19 hearing where he appeared pro se, Windsor challenged the State's time-period argument and asserted that the article 51.13 time period began when he was arrested on October 28. Because of our disposition of this appeal, we need not decide this issue.
We next note the legislative confusion within Chapter 51 of the Code of Criminal Procedure. One treatise explains that confusion as follows:
A potential problem was created in 1964 [sic] when the State of Texas not only reenacted the Uniform Criminal Extradition Act [article 51.13], but also reenacted all of the provisions of the old extradition act (presently Articles 51.01 through 51.12 of the Code of Criminal Procedure) in existenceprior to the enactment of the Uniform Criminal Extradition Act in 1951. There is no reference in the Code of Criminal Procedure as to how these acts are to be construed in relationship to each other. The practice in Texas, however, has been to follow the Uniform Criminal Extradition Act.
1 Chad P. Van Brunt, Texas Criminal Practice Guide § 13.01[2] (2015).
At the end of the December 5 hearing, the trial court stated that it was "denying a bond"10 and would consider other options if there was not a Texas Governor's warrant at the time of the scheduled December 19 hearing. Thereafter, Windsor's attorney withdrew and Windsor appeared pro se at the December 19 hearing.
On December 17, Windsor's pro se notice of appeal was filed.11 It purports to appeal the trial court's bond ruling at the December 5 hearing and the trial court's failure to release Windsor at the December 5 hearing and at all of the previous hearings. Also on December 17, Windsor filed a pro se amended habeas application that asserted numerous reasons why he should be released.
At the December 19 hearing, the trial court granted Windsor a personal recognizance (PR) bond in the amount of $100,000 but otherwise denied Windsor's amended habeas application. The order of release and the PR bond had the following conditions: (1) Windsor must turn over his passport; (2) Windsor must reside at a designated hotel in Richardson, Texas;12 and (3) Windsor must inform the courtimmediately if he changes his residence. The order further set a hearing for January 21, 2015 as an extension under article 51.13, section 16.
The trial court explained to Windsor on the record that if he did not appear on January 21, he would forfeit the $100,000 PR bond. After a discussion about what would happen if a Texas Governor's warrant issued,13 the following colloquy then occurred:
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