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Extraditions in Texas – The Process and Your Rights

Extraditions in Texas are governed by the Uniform Criminal Extradition Act (UCEA), which is codified into Texas Law in Article 51.13 of the Texas Code of Criminal Procedure (TCCP). There are a few other articles outside of the UCEA that concern a few technical matters related to the extradition process. I have summarized how the entire extradition process works by looking at how all of the laws in Texas work together below.

The UCEA governs most extradition matters, even in other states, so whether someone is being extradited to or from Texas, chances are the same law applies.

If you need an attorney to fight an extradition or to help get someone out of jail who has been arrested pending extradition, please call us at (888) 239-9305 to speak with criminal defense attorney Paul Saputo.

Who can be extradited?

A person who has been charged with a crime in another state can be arrested in Texas and held for extradition to that state. There are three circumstances under which such an arrest is made: 1) an arrest pursuant to a Governor’s Warrant, 2) an arrest pursuant to a magistrate’s warrant and 3) an arrest without any prior warrant. A person can only be arrested without any warrant, according to Section 14 of the UCEA, if the person making the arrest has “reasonable information that the accused stands charged in the courts of a State with a crime punishable by death or imprisonment for a term exceeding one year.”

What happens when you’re held for extradition?

If an extradition arrest like the ones above is made pursuant to a “Governor’s Warrant” then the person may contest the extradition by filing a writ of habeas corpus. If the arrest is pursuant to a Texas magistrate’s warrant, then the accused must be brought before the magistrate to “answer the charge or complaint and affidavit” and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant. If there was no arrest warrant outstanding in Texas, then the person must be brought before a magistrate “with all practicable speed” and “complaint must be made against him under oath setting forth the ground for the arrest.”

What is required to be held for extradition?

For the magistrate to issue an arrest warrant or to continue holding a person for extradition, the person must be “charged on the oath of any credible person before any judge or magistrate of [Texas]” or must have a “complaint … made before any judge or magistrate” by “affidavit of any credible person in another State.” For the magistrate to approve the warrant based on a complaint by affidavit, the complaint must state that a “crime has been committed in such other State and that the accused has been charged in such State with the commission of the crime, and except in cases arising under Section 6 [of the UCEA], has fled from justice, or with having been convicted of a crime in that State and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in [Texas].”

Article 51.03 of the TCCP requires that a magistrate judge issue an arrest warrant if a “complaint” (meeting the requirements of Art. 51.04) is made to the magistrate that a person “within his jurisdiction” is a “fugitive from justice.” The arrest warrant issued by the magistrate will require that an arresting officer bring the person before the magistrate. If the accused person has been brought before a magistrate without a magistrate’s arrest warrant, then the complaint must be made against the accused and the person must then answer.

What must the complaint state?

The complaint is sufficient if it has the following elements:

  • 1. The name of the person accused;
  • 2. The State from which he has fled;
  • 3. The offense committed by the accused;
  • 4. That he has fled to this State from the State where the offense was committed; and
  • 5. That the act alleged to have been committed by the accused is a violation of the penal law of the State from which he fled.

How can you fight being held for extradition?

When a person is arrested and brought before the magistrate, the judge is supposed to examine whether “it appears that the person held is the person charged with having committed the crime alleged and except in cases arising under Section 6 [of the UCEA], that he has fled from justice.” The magistrate will hear proof regarding whether the person is “charged in another State with the offense named in the complaint.” A properly certified transcript of an indictment against the accused is sufficient to show that he is charged with the crime alleged.

How long can you be held before being extradited?

If the judge or magistrate is satisfied by the proof, then the 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 … or until he shall be legally discharged.” The magistrate is then required to notify the district attorney who is required to notify the state holding the charge.

How can you get bail pending extradition?

Bail is set for the accused to appear before such magistrate, but in default of bail, the judge may commit the defendant to jail to await requisition. Bail is not permitted if the offense is punishable by death or life imprisonment under the laws of the State in which it was committed. The person cannot be committed or held to bail for a longer time than ninety days. Because of the restriction in the above paragraph, the law seems to indicate that the maximum time in jail is 30 days while the maximum time to be held on bail is 90 days. The judge may allow bail by bond “with sufficient sureties and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor in this State.” 51.05 states that bail is supposed to be set “in such amount as the magistrate deems reasonable, to appear before such magistrate at a specified time.” The magistrate judge therefore has wide discretion in setting bail. A fugitive not arrested under a warrant from the Governor of this State before the expiration of ninety days from the day of his commitment or the date of the bail shall be discharged. The discharge period may be extended once for a period not exceeding 60 days.

What does it mean to waive extradition? How do you fight extradition?

If the accused person is required to come back before the magistrate judge, he or she then may either waive extradition proceedings or require the state to get a Governor’s Warrant by not waiving his or her rights. In order to get a governor’s warrant, the state that’s trying to extradite the accused person must make a formal demand, meeting the technical requirements of Section 3 of the UCEA. Texas may then conduct its own investigation, and ultimately Texas must determine whether to comply with the demand. Texas essentially does not have a choice to comply with the demand if the demand was properly made. However, before being delivered to the other state, the accused person has the right to a be heard on a writ of habeas corpus to challenge the legality of the arrest.