Ex Parte RICHARD GRISSOM, JR

Affirmed and Opinion filed October 24, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-01044-CR
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Ex Parte RICHARD GRISSOM, JR.
.................................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. X89-00296-R
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O P I N I O N
Before Justices Lagarde, Thomas, and Whittington
Opinion By Justice Whittington
 
        Appellant Richard Grissom, Jr., appeals the trial court judgment remanding him to the custody of the Dallas County sheriff for extradition to Kansas. He presents six points of error. The first four attack the sufficiency of the documents supporting the Texas governor's warrant. The remaining two are based on asserted conflicts with the federal statutes governing extradition. We affirm the judgment of the trial court.
        On July 21, 1989, the Governor of Texas issued an executive warrant directing appellant's arrest and delivery to Kansas authorities. Appellant filed an application for writ of habeas corpus challenging the legality of his confinement pursuant to the Governor's Warrant, and a hearing was held on August 7, 1989. At the hearing, the State introduced the Texas Governor's Warrant, which stated that appellant had been convicted in Kansas of theft, burglary, and theft, and had thereafter violated the terms of his parole. Appellant introduced the papers from Kansas supporting the Governor's Warrant. These papers included the Kansas governor's requisition, the application for requisition from the Kansas Department of Corrections, records of appellant's convictions and sentences for the offenses named in the Texas governor's warrant, a certificate of parole, and a warrant authorizing his arrest for parole violation.
        In his first point of error, appellant contends that the trial court erred in remanding him to custody for extradition because no copies of the applicable Kansas statutes were attached to the application for requisition. Appellant argues that "without the copies of the Kansas law the [Texas] Governor could not have made an affirmative finding as to the existence of the laws violated, and as such that undetermined finding is rebutted."
        The introduction into evidence of the Texas governor's warrant, regular on its face, is sufficient to make a prima facie case authorizing extradition. Ex parte Kronhaus, 410 S.W.2d 442, 443 (Tex. Crim. App. 1967). The accused opposing extradition may offer the supporting papers into evidence and challenge their sufficiency in order to show that the warrant was not legally issued. Kronhaus, 410 S.W.2d at 444. Article 51.13, section 3 of the Texas Code of Criminal Procedure FN:1 sets out the documents necessary to support a Governor's Warrant. That section provides, in pertinent part:
            No demand for extradition of a person charged with crime in another State shall be recognized by the Governor unless . . . accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a
    magistrate there, together with a copy of any warrant which issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand . . . .
Tex. Code Crim. Proc. Ann. art. 51.13, § 3 (Vernon 1979).        
        The absence of copies of the applicable Kansas statutes is relevant to the issue of whether appellant has been "substantially charged" with an offense under Kansas law, as is required by section 3. By its terms, section 3 requires the supporting documents to show that the accused was "substantially charged" with a crime under the laws of the demanding state only when the Governor's Warrant is supported by an indictment, information, or warrant before a magistrate. In addition to instances in which the demand is accompanied by one of those three documents, section 3 also authorizes extradition when the demand is accompanied by "a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole." In the case before us, the supporting papers contain records of judgments of appellant's conviction and of the imposition of sentence with respect to the offenses listed in the Governor's Warrant FN:2 and a statement by the Kansas governor that appellant "thereafter violated the terms and conditions of his parole." The records of conviction and sentence are sufficient to show that appellant was substantially charged with a crime under the laws of Kansas. The absence of copies of the Kansas statutes does not defeat the prima facie case established by the introduction of the governor's warrant. Appellant's first point of error is overruled.
        In his second point of error, appellant contends that the trial court erred in denying him habeas corpus relief because the application for requisition states that appellant was released on parole on May 31, 1989, but the certificate of parole shows that he was released on June 1, 1988. Variances involving the dates alleged in the application for requisition and the other supporting papers do not defeat the prima facie case established by the introduction of the Governor's Warrant. Instead, these variances are problems to be resolved by the courts of the demanding state. See Ex parte Bowman, 480 S.W.2d 675, 677 (Tex. Crim. App. 1972); Saenz v. State, 700 S.W.2d 648, 649-50 (Tex. App.--Corpus Christi 1985, no pet.). Appellant's second point of error is overruled.
        In his third and fourth points of error, appellant contends that the application for requisition fails to satisfy certain requirements of section 23(2) of article 51.13. Specifically, in his third point of error, appellant argues that the application for requisition fails to state the circumstances of his breach of parole. Although other supporting documents show that, in February and March of 1989, appellant violated his parole by failing to notify his parole officer of his change of residence and by failing to report to his parole officer, appellant claims that these documents may not be considered because there is no showing that they were attached to the application by the parties named in section 23(3).
        Appellant asserts in his fourth point of error that the application for requisition was signed by an improper authority. The application was signed by the Deputy Compact Administrator for the Kansas Department of Corrections. Appellant contends that this does not satisfy section 23(2) which directs "the prosecuting attorney of the county in which the offense was committed, the parole board, or the warden of the institution or sheriff of the county, from which escape was made" to present the application for requisition.
        Section 23(2) prescribes the proper procedures to be followed when Texas is demanding from a sister state the return of a fugitive. Saenz v. State, 700 S.W.2d 648, 649 (Tex. App.--Corpus Christi 1985, no pet.). Its primary purpose is to satisfy the governor of the demanding state that a requisition for the fugitive should issue. Ex parte Wheeler, 528 S.W.2d 229, 230 (Tex. Crim. App. 1975). Assuming that Kansas has adopted a provision similar to section 23(2), issues concerning compliance with that provision are primarily matters for the governor and courts of Kansas. See Ex parte Baker, 465 S.W.2d 379, 381 (Tex. Crim. App. 1971); Rayburn v. State, 748 S.W.2d 285 (Tex. App.--Tyler 1988, no pet.).
        Section 3 of article 51.13 establishes the requirements applicable to situations such as the instant case, where a sister state demands the return of a fugitive from Texas. We have already addressed and overruled appellant's complaints concerning section 3. The alleged instances of non-compliance with section 23(2) that appellant asserts will not defeat his extradition to Kansas. Cf. Ex parte Wheeler, 528 S.W.2d 229, 230 (Tex. Crim. App. 1975) (affidavits stating that extradition contestant escaped from prison on particular date sufficiently support the governor's warrant); Ex parte Ward, 470 S.W.2d 684, 685 (Tex. Crim. App. 1971) (assistant district and county attorneys may sign application for requisition as "State's attorney" under section 23). Appellant's third and fourth points of error are overruled.
        Appellant's fifth and sixth points of error concern asserted conflicts with federal statutes governing extradition, specifically sections 3182 and 3195 of Title 18 of the United States Code. Extradition between states is governed by article IV, section 2, clause 2 of the United States Constitution, which states:
            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 clause was intended to establish a summary and mandatory executive proceeding for interstate extradition. Michigan v. Doran, 439 U.S. 282, 287-88 (1978). Congress enacted the federal statutes at issue here to implement this provision of the Constitution. Doran, 439 U.S. at 287; County of Monroe v. Florida, 678 F.2d 1124, 1126-27 (2d Cir. 1982), cert. denied., 459 U.S. 1104 (1983).
        In his fifth point of error, appellant argues that section 3 of article 51.13 conflicts with section 3182 of Title 18 of the United States Code and, therefore, violates the supremacy clause of the United States Constitution. Appellant points out that section 3182 provides for extradition when the demanding state produces a copy of an indictment or of an affidavit made before a magistrate. 18 U.S.C. 3182 (1982). Section 3 of article 51.13 authorizes extradition not only in these instances but also when the demanding state produces an information supported by an affidavit or when the demanding state produces a copy of a judgment of conviction or of a sentence. Appellant contends that, because article 51.13 expands the circumstances justifying extradition, it conflicts with federal law.
        Appellant's argument is foreclosed by the decision of the Court of Criminal Appeals in Ex parte Peairs, 162 Tex. Crim. 243, 283 S.W.2d 755, appeal dism'd sub nom Peairs v. Texas, 350 U.S. 858 (1955). In that case, the court stated:
            A State statute on the subject of extradition is unconstitutional only when it seeks to abridge or lessen the duty placed by the Constitution on the part of the chief executive of the asylum State. It follows that any State statute which facilitates the rendition of persons charged with crime is not in conflict with the Federal Constitution and rests rather upon the comity between States and not upon the Federal Constitution.
 
            A State statute which makes less strenuous requirements than those set forth in the Federal rendition statute is valid and does not conflict with the Federal statute.
Peairs, 283 S.W.2d at 758 (citations omitted). Appellant's fifth point of error is overruled.
        Appellant's sixth point of error is based on section 3195 of Title 18 of the United States Code. That section provides, in pertinent part, "All costs or expenses incurred in any extradition proceeding in apprehending, securing, and transmitting a fugitive shall be paid by the demanding authority." 18 U. S. C. § 3195 (1982). Appellant points out that the Kansas governor's demand contains the statement, "No expenses will be paid by this State." Appellant argues that this provision violates the quoted provision of section 3195 and, therefore, the supremacy clause of the United States Constitution.
        Appellant has cited no authority, and we have found none, which allows a fugitive to raise the demanding state's unwillingness to pay expenses as a bar to extradition. Instead, while not explicitly addressing section 3195, federal and Texas authority hold that statements such as that in the Kansas governor's demand have no bearing on the validity of the extradition proceedings and do not present grounds for habeas corpus relief. See Marbles v. Creecy, 215 U.S. 63, 68-69 (1909); Ex parte Ward, 470 S.W.2d 684, 686 (Tex. Crim. App. 1971). Appellant's interpretation of section 3195 is contrary to both existing authority and the federal interest in summary extradition proceedings. We decline to adopt it. Appellant's sixth point of error is overruled.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 90
 
 
8901044.U05
 
FN:1 Unless otherwise noted, all references are to article 51.13 of the Texas Code of Criminal Procedure.
FN:2         The supporting papers contained "Journal Entries" recording the Kansas trial court's adjudication of guilt and imposition of sentence with respect to the offenses listed in the Governor's Warrant. Appellant does not argue that these Journal Entries do not constitute a "judgment of conviction or of a sentence imposed in execution thereof" under article 51.13, section 3. Nevertheless, we note that in Langston v. Texas, No. 538-87 (Tex. Crim. App. September 13, 1989), the Court of Criminal Appeals concluded that a "Journal Entry" recording the imposition of sentence by a Kansas court was insufficient under Texas law to establish a prior final conviction for purposes of article 37.07(3)(a) of the Texas Code of Criminal Procedure.
        Langston does not require this Court to conclude that the "Journal Entries" will not support the Governor's Warrant in this case. Unlike Langston, in this proceeding, once the State introduced the Texas Governor's Warrant, which stated that the Kansas Governor's demand was accompanied by copies of a "judgment" and "sentence (journal entry)," appellant had the burden of overcoming the prima facie proof of the existence of every fact which the Texas Governor was obliged to determine before issuing the executive warrant. Kronhaus, 410 S.W.2d at 444. Moreover, an appellate court may take judicial notice of the laws of another state to determine if the supporting papers meet the requirements of section 3 of article 51.13. Ex parte Mason, 656 S.W.2d 470, 471-72 (Tex. Crim. App. 1983). Kansas law authorizes the recording of the court's judgment and sentence upon the journal of the court. KAN. STAT. ANN. § 22-3426(a) (1988). Where, as here, the defendant is sentenced to custody of the secretary of corrections, the journal entry must include all of the information that would be included in a judgment form, if one were used. KAN. STAT. ANN. § 22-3426(b) (1988). The court has a duty to personally examine and sign the journal entry. KAN. STAT. ANN. § 22-3426(e) (1988). In light of these statutory provisions, we conclude that the "Journal Entries" are sufficient under article 51.13, section 3.
File Date[10-23-89]
File Name[891044F]