James Neely v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-145-CR

JAMES NEELY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-1325-2

O P I N I O N

This is an appeal from a petition for a writ of habeas corpus. James Neely was convicted of capital murder in Mississippi in 1976. The court sentenced him to life, but he was paroled in 1986 on specific conditions. In 1990 he violated those conditions, and Mississippi declared him a parole violator and a fugitive. Mississippi issued a warrant for his arrest, and Texas authorities arrested him under a Governor's warrant in March 1992. See Tex. Code Crim. Proc. Ann. art. 51.13, 7 (Vernon 1979). Mississippi requested his extradition and Neely sought to prevent it by a petition for a writ of habeas corpus.

At the hearing on the petition, Neely's counsel argued that the extradition papers contained four errors that made extradition to Mississippi unlawful. The court denied his petition and subsequently appointed new counsel for his appeal. Neely's appellate counsel and the State admit that this is a frivolous appeal. We agree, but in the interest of justice we will consider the merits of the appeal.

In his first point, Neely argues that Mississippi's application for extradition is invalid because it was not verified by an affidavit. See id. 23(3). We fail to see the merit of this contention. To begin with, the application for requisition is itself an affidavit. The superintendent of the Mississippi state penitentiary set forth a statement of facts relating Neely's crime, his parole, and its violation. All this was properly sworn to, signed, and witnessed in the jurat. It is an affidavit. See Vaughn v. State, 146 Tex. Crim. 586, 177 S.W.2d 59, 60 (1943).

Furthermore, article 51.13, section 23, does not apply to states seeking extradition of a fugitive from Texas. See Tex. Code Crim. Proc. Ann. art. 51.13, 23. Section 23 applies to Texas authorities who are seeking the return of a fugitive from another state. Neely bases his contention on requirements a Texas warden or sheriff must meet when applying for an extradition. See id. They do not apply to Mississippi because it is section 3 which applies to a demanding state's request for extradition of a fugitive from Texas. See id. 3; Saenz v. State, 700 S.W.2d 648, 649 (Tex. App. Corpus Christi 1985, no pet.). We overrule point one.

Neely contends in his second point that there is a variance between Mississippi's arrest warrant of July 9, 1990, and its request for extradition of February 21, 1992. This is not an issue for the courts of an asylum state but rather those of the demanding state. See Ex parte Bowman, 480 S.W.2d 675, 677 (Tex. Crim. App. 1972). Point two is overruled.

Under his third point, Neely argues that the Governor's warrant is invalid because it allegedly fails to comply with article 51.13, section 8. See Tex. Code Crim. Proc. Ann. art. 51.13, 8. Here, again, Neely has not read the statute as a whole. Section 8 does not control the requirements of the Governor's warrant, section 7 does. See id. 7. The Governor's warrant is valid because it was signed, sealed, directed to peace officers, and substantially recited the facts necessary to validate its issuance. See id.

At the hearing Neely contended section 8 provides that, "Such warrant must authorize the peace officer" to arrest the fugitive, command the aid of all peace officers, and to deliver the fugitive to the demanding state's authorities. Instead, section 8 says, "Such warrant shall authorize the peace officer . . . ." Id. 8. Although, generally, "shall" has a mandatory meaning when used in a statute, it nevertheless can have a directory or permissive meaning. Brinkley v. State, 167 Tex. Crim. 472, 320 S.W.2d 855, 856 (1959). The rule of construction is to interpret the statute in a way that will best express the legislature's intent. Id. In making this determination, we must consider the entire act, its nature and object, and the consequences that would follow each construction. See Chisholm v. Bewley Hills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956); Benavides v. State, 804 S.W.2d 193, 194 (Tex. App. Houston [1st Dist.] 1991, no pet.). Provisions that are included for the purpose of promoting the orderly and prompt conduct of business are not generally regarded as mandatory. Id.

We hold that section 8 is for the purpose of conducting the business of extradition in a prompt and orderly manner. This section merely recites what a peace officer has the authority to do once he has a valid Governor's warrant. It does not add to the list of mandatory recitals for a Governor's warrant found in section 7. We believe the legislature did not intend section 8 to be part of the required "recitals" of a Governor's warrant; if it had, it would have included section 8 under the same heading as section 7 i.e., "Issue of Governor's warrant of arrest; its recitals." Instead, section 8 is found under the heading "Manner and place of execution," indicating the manner in which a peace officer is statutorily authorized to carry out his job when acting under a Governor's warrant. We overrule point three.

In his final point, Neely complains that the Governor's warrant is invalid because it violates the provision of article 51.14(IV)(a) that prescribes a thirty-day waiting period between the receipt of a request for a prisoner and the honoring of the request. See Tex. Code Crim. Proc. Ann. art. 51.14(IV)(a). Article 51.14 is the Interstate Agreement on Detainers. Id. This case does not involve a detainer; it involves an extradition. We hold that article 51.14 does not apply and overrule the fourth point. We affirm the judgment of the trial court.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance.

Affirmed

Opinion delivered and filed August 12, 1992.

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