Retaking out-of-state offenders

The Interstate Compact for Adult Offender Supervision (ICAOS, found in Government Code Chapter 510) is one of those relatively obscure areas of the law that arises from time to time, depending on how many offenders a particular jurisdiction takes in or sends out of state. It has its own body of law, and following is a short introduction to a small part of that law, retaking offenders.
    How would a prosecutor receive a case where an offender must be retaken? The most common situation is when an offender who is on probation in Texas but whose probation has been transferred on request to another state commits a new offense or violates the terms of his supervision. Under the ICAOS, the new state can require Texas to take him back. When this happens, the local CSCD director or a probation officer will ask the prosecutor to file a motion to revoke and will request a warrant—and the prosecutor cannot say no. Why?
    The Interstate Compact for Adult Offender Supervision is an act adopted by all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands, to establish the policies and procedures governing the interstate movement of criminal offenders. Its commission is composed of one representative of each state and has the power to “promulgate rules which have the force and effect of statutory law and [are] binding in the compacting states.”1 The compact and the rules promulgated under it supersede any conflicting state or local law; however, when inconsistent with state constitutional provisions, the constitution controls.
    Interstate Compact rules are located at the commission’s website, www.interstatecompact.org.

The process
When an offender must be retaken by Texas, a warrant must be issued. The commission defines “warrant” as “a written order of the court or authorities … which commands law enforcement to arrest an offender and which must be entered in the National Crime Information Center (NCIC) Wanted Person File” (emphasis added).2 A TCIC-only warrant will not suffice; only an NCIC warrant is acceptable because only an NCIC warrant will be recognized and executed outside of Texas.
    A prosecutor may be asked to file a motion to revoke and issue a warrant for reasons other than the offender committing a new offense or violating his probation, including: 
•    an offender who has been allowed to return to the state in which he lived at the time he committed the offense in Texas.3 Although the offender is given permission to go to his state, the receiving state must be given an opportunity to investigate the plan of supervision for up to 45 days. If authorities there reject the offender, if the offender fails to show up after being allowed to leave Texas, or if Texas does not send a timely transfer request to the receiving state, the offender will be required to return to Texas.
•    Offenders may travel or reside outside Texas with the approval of the receiving state or under a maximum 45-day travel permit issued by Texas.4 If Texas should fail to follow those procedures and allow an offender to leave the state, either to reside or stay for more than 45 days, the state that discovers the offender’s presence can require Texas to direct the offender to return within 15 calendar days. If the offender does not return to Texas, a warrant must be issued.
    Instances where a prosecutor may be asked to issue a warrant for an offender for violation of supervision include:
1An offender commits three or more significant violations arising from separate incidents that establish a pattern of non-compliance with the conditions of supervision in the receiving state or a subsequent receiving state. A “significant violation” under ICAOS rules is one for which a receiving state would revoke supervision for its own offender.5
2An offender is convicted of a new felony offense in the receiving state.6 This offender must be retaken after completion of a term of incarceration for the felony conviction or placement under supervision unless the receiving state consents otherwise. A warrant and detainer must be filed with the holding facility.
3When an offender cannot be found by supervising authorities in the receiving state, he is declared an absconder. The receiving state notifies Texas of its unsuccessful attempts to locate the offender, and Texas then issues a warrant and detainer.7
4A receiving state can require the sending state to retake a violent offender who has committed only one significant violation or any offender who has been convicted of a violent crime.8
    It is particularly important to note that any warrant issued for an Interstate Compact offender is not subject to bail or bond.9
    The sending state, specifically the local sheriff or other law enforcement agency that is responsible for safely transporting offenders, pays the costs for retaking. The state that has detained the offender is responsible only for incarcerating the offender until Texas comes to retake him. To defray the cost of retaking, several states and some Texas counties have imposed a fee or bond on the transferring offender prior to the transfer.

The importance of compliance
How do these compact rules, adopted by unelected representatives of the member states, trump state law? Because the U.S. Supreme Court said so. In Cuyler v. Adams,10 the court found that the fact that an interstate detainer compact was given congressional approval transformed it into federal law.11 A few years later, in Carchman v. Nash,12 the court held that the congressionally consented compact was subject to federal construction and resolution. Therefore, we apply the same principles of federal supremacy as if Congress enacted the compact’s provisions.
    There can be serious consequences for non-compliance, including fines, fees, costs and judicial enforcement in U.S. District Court. For a more detailed explanation of the actions that can cause sanctions to be brought by the commission, go to www.interstatecompact.org, click on the Legal tab, then the Liability Whitepaper button to read, “Why your state can be sanctioned upon violation of the Compact or the ICAOS Rules.”
    Staff members at the Texas Interstate Compact Office are available to assist with any questions or concerns you may have. Both of us are available by phone or email (contact info is below) to confer on any questions that may arise in handling Interstate Compact cases. Training for groups of attorneys and judges can also be arranged if requested.

Editor’s note: Regina Grimes is available at 512/406-5989 and regina [email protected], and Kathie Winckler can be reached at 409/771-5444 and [email protected] .com.

Endnotes

1 Tex. Gov’t Code, §510.017, art. IV(b).
2 ICAOS Rule 1.101.
3 ICAOS Rule 3.103 (a)(1).
4 ICAOS Rule 2.110.
5 ICAOS Rule 1.101.
6 ICAOS Rule 5.102.
7 ICAOS Rule 5.103-1.
8 ICAOS Rule 5.103-2.
9 ICAOS Rule 5.111.
10 449 U.S. 433 (1981).
11 Id. at 440.
12 473 U.S. 716 (1985).