I have a defendant arrested on an outstanding felony warrant from Louisiana. He refused to waive extradition, and Louisiana sent me a copy of a waiver of extradition that he signed as part of his original plea bargain. Have any of you run into these before, or do any of you use them? My position is that if his identity can be confirmed as the same person listed in the warrant, no governor's warrant should be necessary. In my case, the defendant isn't contesting his identity. In fact, he readily admits that he is the same person who was on probation in Louisiana, and that he screwed up his probation. He just doesn't want to go home, and seem to have found a new home in my county jail.

If the "pre-arrest" waiver will work, I kind of like the idea. Does anyone else have any experience with these?

The validity of such waivers under Texas law seems clear, e.g., Ex parte Stowell, 942 S.W.2d at 242, so I would certainly try to assist the Louisiana prosecutor in this fashion. I have attempted to use a Texas waiver in Iowa, Indiana, Minnesota, and Arizona, but not on this end. It worked in Iowa and got the Minnesota detainee to change his mind about demanding formal proceedings.

In Chambers County we had all probationers sign a waiver of extradition as a condition of permitting them to travel out of state or to live out of state. Worked like a charm since the majority of our drug probationers were caught heading from Houston to Louisiana on I-10.

ALSO LOOK AT EX PARTE DAVID ROBERT JOHNSON
610 S.W.2D 757 (TEX.CRIM.APP. 1981)

GOOD LUCK

I have faced this same issue. How do you handle the situation procedurally? Does there have to be any type of hearing? Does the demanding state need a court order to pick up the fugitive?

Thanks,

John

In the instance where I sought to extradite from Iowa, the local prosecutor filed a motion and there was a hearing and an order. I tend to believe the Uniform Extradition Act (Ch. 51) would require this procedure, especially since it appears the identity of the fugitive must still be fixed.

Waivers like your guy executed can be a god-send. But if your guy files a writ, you'll be at the mercy of the judge, and some judges simply refuse to honor them. Some states have statutes providing that such waivers are enforceable if certain requirements are met, i.e., California, Maine, Montana, Louisiana, and Hawaii. Texas doesn't, but the Uniform Extradition Act specifically states that a governor's warrant is not the exclusive procedure for extradition. See 51.13, �25A.

As for the procedure for enforcing such a waiver, unless your guy files a writ of habeas corpus, I don't think a hearing re: the waiver is necessary. But if your concerned about the lack of "formality," bring him before the judge to inform him that his previously executed waiver is being enforced and that he is being shipped back.

Does it seem to matter if the waiver is an original or copy? Do any of you have formal procedures as to who keeps the original(s)? In some supervision transfer cases the receiving jurisdiction insists on the original. If you only have one original and send it away, you may be out of luck of the defendant then moves (or absconds) to another state and that state wants something more than a faxed or Xerox'ed copy. I guess one solution would be to have the defendant sign multiple copies. Would it also be possible to file an original in the court's file and have certified copies sent when/where needed? Also, are waivers done on all felony probationers or just those seeking interstate transfer?

On this same note. Have any of you dealt with the other state refusing to honor the waiver of extradition? Do you still have to go through the process of a governor's Warrant? I have this issue right not. Felon in Kansas refusing extradition and Kansas is not sending him back despite the waiver of extradition signed with probation.