Despite being a common occurrence, few people (even attorneys) understand what happens when a fugitive hold is placed on a person, making them subject to being held for extradition to another state.
The term “extradition” means the transfer of a person to another jurisdiction based on the allegation a crime occurred in that jurisdiction. Extradition includes the right to have a hearing to determine whether or not a transfer should occur.
“Waiving extradition” means giving up the right to that hearing and agreeing to be transferred to the demanding jurisdiction.
Extradition has underpinnings in our Constitution. Article IV, Section 2, Clause 2 of the United States Constitution provides: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
This is further developed through the Uniform Criminal Extradition Act which governs state-to-state extraditions. Under federal law (18 USC 3182, the “Extradition Act“) any state or territory can demand a person from another state or territory with an indictment certified by the governor of the demanding state from which the person allegedly fled. It is then the responsibility of the demanding state to send an agent to the asylum state to get the fugitive within 30 days. If the agent does not arrive, the prisoner “may” be released. Most states provide additional time for prisoners to be extradited, typically 60 more days.
In Texas, you can find the Uniform Criminal Extradition Act in Chapter 51 of the Code of Criminal Procedure. It is more narrow than the federal law in some ways, and broader in others. It is somewhat more limited than the federal statute in that it addresses only felonies or treason charges from other states, not misdemeanors. In another way, it is broader than the federal statute in that an indictment is not required to hold a person as fugitive.
First – based on an allegation that the person is accused (but not convicted) of a crime in another state. As discussed above, this is covered by the Uniform Criminal Extradition Act (UCEA). These individuals are generally called fugitives from justice. This term can be confusing because the wanted person likely has no idea that the demanding state wants them. They would not no notice of a warrant and in some cases they may not know they’ve even been investigated. Think of the term “fugitive” as a legal fiction that allows one state to hold a person lawfully for another state based on that other state’s request which alleges a law was violated.
Second – based on an alleged violation or probation or parole. This is governed by the Interstate Compact for Adult Offender Supervision (ICAOS), which is found in Government Code Chapter 510 in Texas.
Third – if you are serving a prison sentence elsewhere, but are wanted to stand trial in another state. This is covered by the Interstate Agreement on Detainers Act.
A prisoner is allowed to waive extradition. This means the prisoner is giving up his or her right to an extradition hearing. In other words, the prisoner wants to be returned to the demanding state. If you waive extradition, the demanding state only has 30 days to come get you. Generally, only a court of record can hold a hearing on the waiver of extradition, but under certain circumstances, a justice of the peace may also hold the hearing. A person may also waive extradition to negotiate a lower sentence in the demanding state. Finally, a person may waive extradition because they are do not want to spend up to 90 days in custody waiting to see if a Governor’s warrant will be procured. A waiver of extradition must be made in writing. Before a prisoner signs a waiver, they must be informed of their right to demand a Governor’s warrant and their right to file a writ of habeas corpus. After receiving the information about their rights, the accused can waive extradition by stating in writing that they consent to be returned to the accusing state, and signing the writing in the presence of a magistrate authorized to hold waiver of extradition hearings.
A peace officer or private person can make an arrest without a warrant based on “reasonable information” that the person is charged in another state with a felony offense. That arrested person must be taken in front of a judge with “all practicable speed” and a complaint must be set forth establishing the grounds for arrest.
Once a complaint has been made, if the magistrate determines the person is a fugitive from justice and the prisoner is now within his jurisdiction, the magistrate will issue a warrant to hold the prisoner as a fugitive from justice. The magistrate may make this determination based on a certified copy of a complaint or indictment or the judge may hold a hearing. At this hearing, a prisoner can contest identity as well as the other elements of the complaint.
To hold someone in Texas, a magistrate must be notified by complaint that a person has been alleged to have committed a crime in another jurisdiction and has fled. The complaint must lay out:
If the magistrate determines the complaint is sufficient, the prisoner may be held for up to 30 days in county jail on the magistrate’s warrant in Texas. This is not a “Governor’s warrant.” It is a fugitive from justice warrant.
The magistrate may set an amount of bail to secure the person’s release instead of commitment, but only if the alleged offense is not punishable by life imprisonment or death in the accusing state.
Section 17 of Code of Criminal Procedure 51.13 allows a magistrate to commit the person for up to 60 more days. In other words, the judge has the discretion to a) release you by finding the complaint lacking, b) keep you finding the complaint is satisfactory, or c) release you on bond even if the complaint is satisfactory as we will discuss below.
Generally, when you have an encounter with law enforcement, they will run you through the National Crime Information Center (NCIC), which is a nationwide criminal database. If you show up with a warrant from out of state, the warrant will generally say whether or not the other state wants to extradite you.
Once you are taken into custody, you will have a “fugitive hold” placed on you. If it appears to the magistrate from an examination that the accused is the person charged with having committed the crime alleged and fled from justice, the magistrate must commit the accused to the county jail for a specified time, not to exceed 30 days.
Once a person has been determined to be a fugitive from justice (whether the detention began by complaint or by warrant) the magistrate is required to notify the Secretary of State and the District Attorney’s Office pursuant to Code of Criminal Procedure 51.06. The DA and Secretary of State must then notify the Governor of the demanding state to provide a Governor’s warrant to the state holding the fugitive.
If a Governor’s warrant has not been issued within the initial 30 day period, the magistrate can either release the accused person, or recommit them for a period of no more than 60 days.
Generally, if the Demanding State jumps through the right hoops in time, they are going to be able to get a Governor’s Warrant. The “in time” part is sometimes the hardest hurdle to overcome. See Puerto Rico vs. Brandstand (1987) for the only reasons a Governor can refuse extradtion. They are 1) the documents drom the demanding state are not in order 2) the person is not charged with a crime in the demanding state 3) the person is not named in the documents from the demanding state, or 4) the person is not a fugitive. Once a Governor’s Warrant has been issued, the mechanism to fight extradition is through a writ of habeus corpus.
The Interstate Compact for Adult Offender Supervision (ICAOS) governs probation and parole violators. If a warrant is issued under ICAOS, the prisoner is not entitled to a bond.
The Interstate Agreement on Detainers Act is a compact between the United States and the states. This agreement allows prosecutors in one jurisdiction to acquire the presence of defendants imprisoned in other jurisdictions for trial prior to the expiration of their sentences. Tex. Code Crim. Proc. Ann. art. 51.14 After the prosecutor places a detainer on a prisoner, that prisoner may request speedy disposition of the charges under article III of the IADA. Once notified of the prisoner’s request, the prosecutor has 180 days to bring the prisoner to trial. If the prosecutor exceeds those 180 days, the charges are dismissed with prejudice and the detainer becomes invalid.
Texas also allows for an extradition bond to be set “in such amount as to magistrate deems reasonable” releasing the individual to appear before the magistrate at a later time. The period that the person may be subject to the bond is 90 days. The bond will be conditioned on both returning at a future date and upon the issuance of a Governor’s warrant. You cannot get a bond set on a fugitive case in Texas if you are facing a life or death sentence.
If a person is arrested in one county for a warrant arising out of another county, the person will be taken to jail in the county he was arrested in. Articles 15.19-21 of the Code of Criminal Procure provides that a person can be held for 10 days for the county where the offense took place to get the person. If that county does not, the person must be released on a personal bond.
A fugitive may be held for no more than 90 days on a fugitive warrant in Texas. If the fugitive is not picked up in that time, the prisoner must be released. Holding them further is a violation of the Uniform Criminal Extradition Act. A violation of the UCEA can become the basis for a federal civil lawsuit under 1983. That is because federal courts recognize the cause of action from a “violation of rights protected by state law derived from federal law.”
If a loved one has a “fugitive hold” it’s important to contact a skilled criminal defense attorney to find out the legal options and the best way to proceed. Call us at (817) 203-2220.