By Zack Wavrusa
Assistant County & District Attorney in Rusk County
Prosecutor offices are busy places. It doesn’t matter whether you work in a county of 50,000 people or 5 million, the prosecutor’s office will be bustling with people preparing for jury trials, talking to victims, meeting with law enforcement, or counseling local government officials.
It’s a great place to work, but the hectic nature of the business means key office personnel, especially those working in the legal field for the first time, may be hesitant to stop a lawyer, investigator, or other staff member and ask for help when needed. Don’t fret! Texas is full of prosecutor’s offices that want you to succeed just as much as you do. Whether you are new to the office or just new to the job responsibilities, here are some answers to common questions about extraditions you might be hesitant to ask.
What is an interstate extradition anyway?
Pop culture might have you believe that extraditions are merely the products of international treaties. You could be forgiven for assuming that they are a concern only for people looking to flee the United States after committing the kind of crime that puts you on an international most-wanted list. International extraditions of this sort are most definitely a thing, but they are not the only type of extraditions. This article isn’t going to touch on international extraditions, but if you need some guidance check out Kim Bryant’s article from this very journal from 2015 (it is at THIS LINK). You may also want to give Governor Greg Abbott’s office a call, as some staff there are tasked with assisting international extraditions.
Interstate extraditions are much more common. An interstate extradition is a legal proceeding that allows one state (called the demanding state) to retrieve a fugitive from justice from another state for the purpose of standing trial. Let’s say a defendant commits a series of crimes as the leader of a criminal street gang in Philadelphia. Before he can be tried there, he flees the state of Pennsylvania with the hopes of starting anew in Texas. If Pennsylvania authorities get wind of his presence in Texas and want to return him to Philadelphia to stand trial, the legal process they would use is an interstate extradition.
What crimes qualify for extraditions?
The process of extraditing someone from one state to another is governed by three key pieces of law: the United States Constitution, the United States Code, and the Uniform Criminal Extradition Act. These laws permit extradition for “treason, felonies, or other crimes.” Extraditions are appropriate even when the defendant was not within the territory of a state when he committed his crime, as is the case with many cybercrimes so prevalent today.
Practically speaking, extraditions for misdemeanors rarely happen. That’s because extraditing someone from one state to another takes time and costs money, and not every jurisdiction is willing to spend the resources necessary to reclaim a fugitive from justice. Not even all felony-level fugitives will be extradited. Every extradition requires a local law enforcement agency to spend money on employee wages (plus likely overtime), fuel, vehicle maintenance, and, in the case of more far-flung locations, airfare and hotel costs. The reality is that sometimes these costs can deter a county from extraditing a person who otherwise qualifies for extradition.
Some counties may not be dissuaded by the costs of extraditing a low-level drug or property crime offender if the trip is only a couple hundred miles. That same county may opt out of retrieving a defendant charged with that same offense if the trip is longer. Similarly, a county may be willing to foot the bill to retrieve someone from anywhere within the United States if that person is charged with a serious, violent crime. Ultimately, the decision to extradite or not is a policy decision that will vary from county to county.
Seems like a lot of crimes qualify—why don’t we see extradition hearings more often?
As discussed earlier, cost is certainly a reason we don’t see as many extradition hearings as we could. However, the biggest reason is that most defendants elect to waive extradition and voluntarily return to whatever state is demanding their return. The motivation for waiving extradition will vary from person to person: Some may simply want to get on with the inevitable. Others may believe it is in their own self-interest not to make things harder on the attorneys prosecuting their cases.
What do I need to do to facilitate a waiver of extradition?
Whatever the motivation, a defendant’s decision to waive extradition dispenses with the need for a contested hearing and creates the need for paperwork. Specifically, it will require some variation of the following:
• a defendant’s request to waive extradition,
• the actual waiver of extradition, and
• the court’s order approving the defendant’s waiver of extradition and return, which is to be filled out by whomever the demanding agent sent to reclaim the defendant.
Some of you may work in counties where this type of paperwork is generated by the clerk’s office or personnel within the court’s office. If this is you, congratulations—you are living the dream. The rest of us are saddled with the responsibility of preparing this paperwork for the court. Someone in your office should already have these forms. Don’t worry about these forms being complicated—they should be simple “fill in the blank” forms because the issues that a court can look into during an extradition hearing are very limited. On the off-chance your office doesn’t already have forms generated, don’t hesitate to reach out to the clerk’s office for examples of the documents that have been previously filed in your county. If that doesn’t pan out, call on a neighboring county, or find sample forms at tdcaa.com (look for this article in the Journal section).
If you are tasked with preparing the forms, the key information you will need is the defendant’s name (and aliases if any are known), the demanding state, and the crime the defendant is accused of committing there. The method of getting this information will vary from county to county and, perhaps, from extradition to extradition. In Rusk County, it is not unheard of for us to assemble waiver of extradition paperwork based on information gleaned from TCIC/NCIC, out-of-state arrest warrants, and requests that were provided to the jail by the demanding state. With time, you will become adept at zeroing in on the relevant information.
What can I share with partner agencies and victims that could ease their concerns about a defendant slated for extradition?
First and foremost, remember that extradition is a two-way street. We can go out and demand the return of a Texas fugitive from any other state just as easily as those other states can from us. The law requires other states’ law enforcement officers to assist Texas by “delivering up” fugitives from justice in exactly the same way we are required to assist other states. If a victim or law enforcement agency is worried that a defendant will escape justice by leaving the state, remind them that we have the extradition tool at our disposal.
Also remind them that while the process is pretty straightforward, it is not automatic. Some affirmative steps need to be taken for a fugitive to waive extradition. In cases where extradition is not waived, an attorney will have to offer up proof that the defendant is, in fact, a fugitive from justice. However, this proof is simply a certified copy of the indictment or a sworn affidavit. There won’t be a need to call a bunch of witnesses either. While there are due process protections in place for the defendant and he has the right to an attorney, the court hearing the extradition is prohibited from getting into the issue of the defendant’s guilt or innocence. The circumstances of the arrest are the only subject into which the court can inquire.
You may want to prepare crime victims for the possibility that a defendant will be granted bail prior to being turned over to the demanding state or picked up by Texas law enforcement in another state. The court is not required to give bail in an extradition case, and it is prohibited from giving bail in cases where the defendant is accused of committing a crime punishable by death or life imprisonment in the demanding state. If the defendant fails to appear as required after posting bail, the court has the same powers to forfeit the bail and issue an arrest warrant as it would in an ordinary criminal case.
If a defendant has committed crimes in Texas and the demanding state, Texas does not forfeit or otherwise concede its authority to prosecute someone for crimes committed in Texas by delivering the person up to the demanding State.
If you have more questions, just ask
If you take away anything from this column, it is this: All your coworkers, regardless of their title, want to see you succeed. If you have questions that a lawyer, investigator, or other seasoned staff member can answer, please ask. The law can be challenging, especially in uncommon proceedings like extraditions.
 18 USCS §3182.
 Tex. Code Crim. Proc. Ch. 51 (Fugitives from Justice).
 Tex. Code Crim. Proc. Art. 51.13.