Has anyone had experience with a writ of testificandum? We have a defendant who is in custody in Oklahoma that we need for a juvenile hearing. This writ has been suggested to me but I can't find anyone with experience with it. Thanks.

Federal Sample


http://www.gpo.gov/fdsys/pkg/U...-2_11-cv-00874-5.pdf

§ 13.05 Procedure After Issuance of Governor's Warrant

[1] Arraignment

Before an arrested person is delivered to the agent of the demanding state [see § 13.04[4], infra], the person must first be taken before a judge of a court of record in the asylum state, who must inform the person of the following [C.C.P. Art. 51.13 § 10]:

1. That a demand has been made for the surrender of the person to the demanding state.

2. The crime with which the person is charged.

3. That the person has a right to counsel [see § 13.05[2], infra].

4. That the person has a right to test the legality of the arrest through an application for writ of habeas corpus.

Any officer who delivers an arrested person to the agent of the demanding state in wilful disobedience of the above requirements is guilty of a misdemeanor [C.C.P. Art. 51.13 § 11].

If at the arraignment the accused indicates a desire to test the legality of the arrest, the judge must fix a reasonable time to be allowed for the person to apply for a writ of habeas corpus [C.C.P. Art. 51.13 § 10]. The Court of Criminal Appeals has not determined what specific amount of time is reasonable under this provision. However, three days' notice has been held to be a reasonable time where there was no further showing of prejudice due to the shortness of time [ Ex parte Partridge, 161 Tex. Crim. 185 , 275 S.W.2d 682, 683 (1955)] . On the other hand, if the time allowed for preparation is as short as a few hours, it is viewed as no time at all, and the extradition order will be reversed without any requirement of a showing of specific and actual prejudice due to the shortness of time [ Ex parte Taylor, 531 S.W.2d 333, 334 (Tex. Crim. App. 1975)] .

[2] Right to Counsel

A person arrested under a governor's warrant has a right to demand and procure counsel for all proceedings subsequent to the arraignment after the arrest [C.C.P. Art. 51.13 § 10]. By contrast, the statute does not provide for a right to counsel at the time a person is arrested under a fugitive warrant [see § 13.03[4]]. It has also been determined that indigent persons are entitled to appointed counsel [ Ex parte Turner, 410 S.W.2d 639, 640-641 (Tex. Crim. App. 1967)] .

The right to counsel, however, is limited to the initial extradition proceeding. When a person is returned to a state from which he or she was initially extradited [see § 13.07[1]], the return is not a matter involving a critical stage of a criminal proceeding so as to require the furnishing of counsel under the federal Constitution [ United States ex rel. Calhoun v. Twomey, 454 F.2d 326, 328 (7th Cir. [Ill.] 1971)].

[3] Application for Writ of Habeas Corpus

[a] Original Application

The proper method to test the legality of the governor's warrant for extradition is an application for a writ of habeas corpus [C.C.P. Art. 51.13 § 10]. A person arrested under a governor's warrant must be given a reasonable time to apply for the writ [see [1], supra]. If the defendant does not challenge the extradition process by filing an application for a writ of habeas corpus, there can be no appeal of an extradition order [ Ex parte Chapman, 601 S.W.2d 380, 382-383 (Tex. Crim. App. 1980) ; Martinez v. State, 688 S.W.2d 201, 202 (Tex. App., Corpus Christi 1985, no pet.)-- appeal improper in absence of writ even though trial court gratuitously held hearing on extradition warrant].

An application for a writ of habeas corpus concerning felony charges should be filed in a district court. The Extradition Act provides that a person arrested under a governor's warrant may be brought before a judge of any court of record in the state, including a county court judge, in order to fix a reasonable time to apply for the writ [C.C.P. Art. 51.13 § 10; see Ex parte Sullivan, 534 S.W.2d 140, 141 (Tex. Crim. App. 1976)] . Nevertheless, it was held that the county court did not have jurisdiction to hold a habeas corpus hearing on extradition in a felony case [ Ex parte Sullivan, 534 S.W.2d 140, 141 (Tex. Crim. App. 1976) ; see former Tex. Const. art. 5, § 16--limiting habeas corpus jurisdiction of county courts to cases involving offenses within juridiction of county court or inferior court or tribunal; Ex parte Manzella, 443 S.W.2d 260, 260 (Tex. Crim. App. 1969)-- in application for habeas corpus to contest extradition concerning felony, judge of county court had no authority except to remand accused back to custody from which he was taken under writ]. Subsequent amendments of the constitution and statutes make it difficult to determine the jurisdiction of county courts in matters of habeas corpus [see Tex. Const. art. 5, § 16--county courts have jurisdiction as provided by law and county court judges have power to issue writs necessary to enforce their jurisdiction; Gov. C. §§ 25.0003(a), 26.047(a)]. In general, however, the jurisdiction of county courts in criminal matters extends only to certain misdemeanors [see Gov. C. § 26.045]. Therefore, habeas applications concerning felony charges should continue to be brought in district court.

If extradition should be sought solely concerning misdemeanor charges, counsel may want to consider filing an application for writ of habeas corpus in county court. However, prudent practice suggests that it would still be appropriate to file the application in district court [see Gov. C. § 24.008--district court may hear and determine any cause cognizable by courts of law or equity and grant any relief that could be granted by courts of law or equity; see also Ex parte Leach, 478 S.W.2d 471, 472 (Tex. Crim. App. 1972)-- habeas corpus proceeding in criminal district court on extradition concerning criminal offense that may have been misdemeanor].

When the application for the writ is filed, notice of the time and place of the hearing must be given to the prosecuting officer of the county in which the arrest was made and in which the accused is in custody, and to the agent of the demanding state [C.C.P. Art. 51.13 § 10]. The nature and scope of inquiry at the hearing on the writ of habeas corpus is fully discussed in § 13.06, infra.

[b] Appeal of Denial of Habeas Corpus Relief

The Uniform Criminal Extradition Act does not make any specific provision for appealing the denial of an application for writ of habeas corpus. However, the denial of a writ application challenging an extradition proceeding may be appealed pursuant to Rule 44 of the Texas Rules of Appellate Procedure [see T.R.A.P. 44(a)]. The procedural rules for perfecting and prosecuting an appeal to the court of appeals from a denial of habeas corpus relief in an extradition matter do not differ from the appeal of habeas corpus matters generally [see Ch. 12, Bail , for specific procedure to be followed in perfecting habeas corpus appeal]. If discretionary review will be sought from the appellate court, on the other hand, there is a difference between extradition matters and other habeas corpus cases. In an extradition matter, an accused may be able to obtain a stay of the court of appeals' mandate if the court has affirmed the judgment of the trial court, with the effect of sanctioning the extradition of the accused [see T.R.A.P. 44(d); see also Ch. 90, Appeal ].

[4] Transfer to Agent of Demanding State

If a person arrested under the governor's warrant chooses not to test the legality of the arrest by way of an application for a writ of habeas corpus or has been denied habeas corpus relief, the officer executing the governor's warrant must deliver the person to the agent of the demanding state [C.C.P. Art. 51.13 § 8]. If necessary, the prisoner may be confined in the jail of any county or city through which the officer and prisoner may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer is ready to proceed [C.C.P. Art. 51.13 § 12].

[5] Illegal Transfer to Demanding or to Asylum State

After the accused has been transferred to the demanding state by virtue of an extradition proceeding, the legality of the extradition is no longer a proper subject of attack; any irregularities in the proceeding do not afford the accused immunity from prosecution of any crime in the demanding state [ Siegel v. Edwards, 566 F.2d 958, 960 (5th Cir. [La.] 1978) ; Gaither v. State, 479 S.W.2d 50, 51 (Tex. Crim. App. 1972) ]. Furthermore, if a person is forcibly brought into the demanding state by kidnapping, the demanding state still has the power to prosecute the person for any crimes committed in that state, leaving the accused with the sole remedy of proceeding against the kidnapper for any wrongdoing [Ex parte Ponzi, 106Tex. Crim. 58, 106 Tex. Crim. 58, 290 S.W. 170, 173 (1926)] . This rule has been applied even when the kidnappers are state officers of the demanding state [ Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952)] .

The fact that the accused was brought into the asylum state either involuntarily or illegally does not prevent the asylum state from honoring a requisition for extradition to another state [ Ex parte Manzella, 452 S.W.2d 913, 915 (Tex. Crim. App. 1970) ; C.C.P. Art. 51.13 § 5]. For example, the fact that there may have been a treaty violation in seizing the defendant in Mexico and bringing him or her to Texas for extradition to another state will not defeat the jurisdiction of the demanding state [see Quintero v. State, 761 S.W.2d 438, 440-441 (Tex. App., El Paso 1988, pet. ref.) ; but see Day v. State, 763 S.W.2d 535, 536 (Tex. App., El Paso 1988)-- cases should not be interpreted as sanctioning law enforcement policy of illegally seizing United States citizens in foreign countries]. However, the trial court may be divested of jurisdiction if law enforcement agents engage in conduct that is so shocking to the conscience as to amount to a due process denial [ Day v. State, 758 S.W.2d 869, 869-870 (Tex. App., El Paso 1988,----)--conduct must rise to level of abuse beyond physical force necessary to effect arrest].

An accused may also be subject to extradition even though his or her presence in the asylum state does not stem from any intent to violate the law. For example, an extradition proceeding may be instituted to return a convict who was released from the custody of the convicting jurisdiction after trial to first complete a sentence imposed by another jurisdiction [see Noe v. State, 654 S.W.2d 701, 702 n.1 (Tex. Crim. App. 1983) , cert. denied, 464 U.S. 997 (1983)-- accused could be extradited to Mississippi, to serve sentence for outstanding conviction, after release by federal authorities on completion of federal sentence].

thanks!