EX PARTE FROM A DISTRICT COURT STEPHEN DILLARD

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-89-00721-CR
EX PARTE FROM A DISTRICT COURT
 
 
STEPHEN DILLARDOF DALLAS COUNTY, TEXAS
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
OPINION PER CURIAM
AUGUST 14, 1989
        Stephen Dillard appeals the denial of his application for writ of habeas corpus in which he challenged the legality of his confinement pursuant to a Governor's warrant ordering his extradition to the State of Oregon. Appellant claims on appeal that he was denied gubernatorial discretion by misleading statements in the requisition and supporting documents. We overrule his point and affirm the judgment of the trial court.
        The record in this cause reflects that the requisition from the State of Oregon recites that appellant is wanted for the offense of custodial interference in the first degree. The requisition also alleges that appellant:
    ...[k]nowing that he had no legal right to, kept another person from that person's lawful custodian and violated a custody order by holding that person out of state in violation of said order.
This language tracks the statute which defines custodial interference in the first degree. OR. REV. STAT. § 163.257(1)(a) (1987). The application for requisition also recites the basic provisions of this statute, and characterizes the offense with which appellant is charged as custodial interference in the first degree. The indictment contained in the supporting documents contains substantially the same language.
        Appellant claims, however, that the documents contain conflicting language concerning whether the offense occurred in the State of Oregon, or in another state. Because of this conflict, he argues, the Governor of the State of Texas could not tell whether the extradition was mandatory or permissive. He further claims that the Governor's warrant reflects that the Governor believed that the extradition was mandatory, since it recites that appellant "fled the justice of that State."
        When an individual commits an offense against the laws of a state by acts occurring in that state, extradition is mandatory. U.S. CONST. art. IV § 2, cl. 2; 18 U.S.C. § 3182 (1948). See also TEX. CODE CRIM. PROC. ANN. art. 51.13, §§ 2, 3 (Vernon Supp. 1989). However, if the individual commits acts in one state constituting an offense in another state, extradition is permissive. TEX. CODE CRIM. PROC. ANN. art. 51.13 § 6 (Vernon Supp. 1989). This Court has previously stated that when the supporting documents allege conduct which would result in a permissive extradition, but the requisition tracks language dictating a mandatory extradition, an applicant is effectively denied gubernatorial discretion. Ex parte Holden, 719 S.W.2d 678, 679-80 (Tex. App.-- Dallas 1986, no pet.). However, an allegation that offenses occurred in the demanding state, contained in charging instruments, is nothing more than allegation that the illegal consequences of applicant's conduct, necessary to show jurisdiction of the court of the demanding state, occurred there. Roberts v. State, 619 S.W.2d 161, 164 (Tex. Crim. App. 1981); Ex parte Holden, 719 S.W.2d at 679.
        In the present cause, the requisition and supporting documents clearly set forth facts demonstrating that appellant engaged in conduct in another state which resulted in an offense in the State of Oregon. Any allegation in the documents that the offense occurred in the State of Oregon merely asserts that the illegal consequences of appellant's conduct occurred there. Additionally, the Governor's warrant, which contains language to the same effect, simply acknowledges that Oregon has asserted jurisdiction to prosecute appellant. Finally, the requisition alleges facts necessary for a permissive extradition.
        We hold that the Governor was sufficiently apprised that the extradition of appellant was permissive, not mandatory. In addition, we find nothing in the record to show that the Governor failed to exercise his discretion in ordering appellant's transfer to the State of Oregon because of any alleged confusion over the nature of the extradition. As a result, we conclude that appellant was not deprived of gubernatorial discretion. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
89-00721.F
 
 
File Date[01-02-89]
File Name[890721F]