Opinion

Ex Parte: Ronald Phipps

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Aug 11, 1993
Status
Published
Cited by
0 cases
Authority
More cited than 35.7%

The opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-93-306-CR

EX PARTE: RONALD PHIPPS,

APPELLANT

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NO. 20,935, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING

PER CURIAM

This is an appeal from an order of the district court, made following a hearing on

appellant's writ of habeas corpus, remanding appellant for extradition to Kentucky. Tex. R. App.

P. 44. The supporting documents reflect that appellant is wanted in Kentucky to answer to an

alleged parole violation.

In his first point of error, appellant urges that there is a fatal variance in the papers

supporting the governor's warrant. Appellant refers to an affidavit from the chairperson of the

Kentucky Parole Board, which states that appellant "has violated the terms and conditions of

parole in the following instance, to wit: See attached certified copies of California Judgments."

The attached documents reflect convictions in the United States District Court, Central District

of California. Contrary to appellant's argument, we find no discrepancy between the affidavit and

the attached judgments. The affidavit does not state that the judgments are from a California state

court. Point of error one is overruled.

In point of error two, appellant contends that Kentucky did not diligently seek his

return and thereby waived its jurisdiction. Appellant was released on parole in 1980. Appellant

testified that Kentucky authorities were informed of his federal convictions in 1981, but did not

place a detainer on appellant until sixty hours before his scheduled release from federal prison.

Appellant asserts that by its inaction, Kentucky forfeited its right to revoke his parole.

Once the governor of the asylum state has granted extradition, a court considering

release on habeas corpus can do no more than decide whether the extradition documents on their

face are in order, whether the petitioner has been charged with a crime in the demanding state,

whether the petitioner is the person named in the request for extradition, and whether the

petitioner is a fugitive. Michigan v. Doran , 439 U.S. 282, 288-89 (1978); Wray v. State , 624

S.W.2d 573 (Tex. Crim. App. 1981). The effect, if any, of Kentucky's failure to lodge a detainer

sooner than it did is not a proper subject for consideration in this cause. Upon his return to

Kentucky, appellant may advance his contention in an appropriate forum. Point of error two is

overruled.

The order of the district court is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: August 11, 1993

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