Ex Parte Holmes

397 S.W.2d 458 (1965)

Ex parte Edgar HOLMES.

No. 38747.

Court of Criminal Appeals of Texas.

December 1, 1965.

Rehearing Denied January 19, 1966.

Weldon Holcomb, Tyler, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

This is an appeal from an order issued in a habeas corpus proceeding remanding the appellant to custody for extradition to the state of Louisiana.

The disposition hereof makes a summary of the evidence introduced on the hearing unnecessary.

It is undisputed that the appellant timely and properly requested and made demand upon the state that he or his attorney be furnished with the copies of the instruments relied upon for his extradition; and that the state failed to furnish him or his attorney said instruments.

In considering a similar contention this court in Ex parte Tucker, 168 Tex.Cr.R. 286, 324 S.W.2d 853, said:

"The right of the appellant to copies of said instruments is a valuable right conferred by statute and it becomes mandatory upon demand. Art. 1008a, Sec. 3, supra; Ex parte Moore, 158 Tex.Cr.R. 407, 256 S.W.2d 103. Whether the necessary facts exist for the issuance of the extradition warrant, such as the fact that the accused is substantially charged with a crime by indictment or other accusatory pleading as provided by statute duly authenticated by the executive authority of the demanding state or that she is a fugitive from justice is a question of law which is subject to judicial inquiry on the hearing of an application for discharge under a writ of habeas corpus. Therefore, it is evident that such instruments are vitally essential in considering and determining the legality of his arrest. Art. 1008a, Secs. 3 and 10, supra; 19 Tex.Jur. 508, Sec. 19; Ex parte Anderson, 135 Tex.Cr.R. 291, 120 S.W.2d 259; Ex parte McMillan, 156 Tex.Cr.R. 355, 242 S.W.2d 384."

*459 The failure to furnish said copies of the instruments requires a reversal of the order of the trial court denying the relief prayed for.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.