Cooper v. State
400 S.W.2d 890
Tex.
1966
Check Treatment

*1 Galveston, Damiani, Atty., Jr., Dist. Jules COOPER, Relator, Samuel Harold respondents. for NORVELL, Justice. al., Respondents. STATE of Texas et for mandamus original action an No. A - 11109. Article in this Court § filed Supreme Court of Constitution, Ann.St. Vernon’s Texas Ann.Tex.Stats. Vernon’s and Article to a crim- proceeding relates Although this District Court pending cause now

inal Texas, County, of Galveston is vested mandamus the writ of issue of Criminal in the Court rather than Procedure Tex- Appellate Appeals. See Coop- relator, Harold as, 1.4. The Samuel § unlawfully possess- er, charged with stands 29,067 No. Cause ing marihuana of Galveston District Court docket of the District, now and he County, 56th Judicial an order com- he is entitled contends that bring him of Texas manding the State charge or dis- upon such speedily Article He miss invokes § the Sixth Constitution of the Texas Con- Amendments Fourteenth States, and names Texas, County respondents the State of Galveston, Judge of W. Damiani, Jr., Court, and Jules of Galveston District Criminal County. prisoner. indigent federal

Relator is an re- state marihuana May 1962 and filed on turned and February On admitted to bail. lator on a narcotics 1963, he convicted years of five charge and sentenced District Court United States present he At of Texas. Western Correctional in the Federal is incarcerated Texas, Texarkana, at Institution thus Bu- Department of

through its reau action, the predicate present Austin, As a Clinton, Jr.,

Sam Houston for re- lator. filed a prosecutions ac “In criminal Constitution all § Artiele public part provides: shall have ” n jury. impartial *2 corpus rangements expenses ad in the 56th District for payment are brought he he be actually Court in which that prisoner made before the to Galveston and tried the marihuana on place moved to the of trial.” charge charge or that said be dismissed. In State rel. Moreau respondent, by His was denied judge, 114 Tex. 271 S.W. Stone, Judge Hon. W. E. court. prisoner that when was Court held a granted, Had this been it would have institution, plea penal confined in Texas a necessary request been prisoner “wholly that such without and was produce federal authorities to be- district court of the fore the ** try him for another offense” plea to bar a not law sufficient stipulation of facts and exhibits filed prisoner’s right speedy trial under herein that indicate should state au- provisions of Article 10§ proceed thorities elect or be ordered to with However, cases despite some Constitution. prosecution of the state marihuana appears holding contrary, that it comply with certain conditions sepa- different rule when two specified by prison authorities, rate produced the relator would be for trial in pre- state court. These conditions are Fessenden, In Ponzi v. scribed in a bulletin on October issued 607, 22 A.L.R. S.Ct. by Bureau of Prisons. The direc- that, recognized it was “We live that, tive among things prescribes sovereignties” the jurisdiction of two a state jurisdic- or other local non-federal Attorney comity, under the doctrine of prisoner pro- desires that a federal be General of the United vested duced in a non-federal connection prisoner with discretion render a federal with prosecution, proper a criminal of- available to a state court for trial ficer application of the state must make under offense such as he conditions therefor the Director Bureau might prescribe. Obviously a state does not prescribed are Various conditions possess control care, relating custody, to the shelter and compel pro- General’s discretion and him to prisoner. Deputy subsistence of the federal prisoner duce a federal a state court before federal marshalls must at all times accom- problem for trial. The dissolves into one pany and retain of him squabble of sovereignty and not mere away while from the federal insti- prescribed over presently conditions or tution. The directive then concludes: may by prescribed which be hereafter relating pro- specifically “Unless modified the duction of a federal before a state Director, Prisons, Bureau of these con- court. accepted applicant ditions must be by the in the lead- clearly pointed out This was before an inmate in the Schechtel, parte 103 Colo. ing Ex case of produced may up- Federal Government be 82 P.2d corpus. habeas general recognized The Colorado Court responsibility "sovereign may an ac- Mar- rule not that a proper shal to that see writ of habeas reason of person ** corpus prosequendum, ad that he incarcerated circumstance the case of a defendant a criminal sovereign’s penal institutions ceeding, should presented be to him as under a conviction sentence in a authority his satisfactory However, sovereign”.2 court of ar- it was See, holding

2. This is in accordance with the of the Moreau case. 118 A.L.R. 1037. manner recognized held that in what discretionary way may another when held sov- A comity. contrary view ereignty. speaking directly point, to this the doctrine In only not seems obnoxious of one’s under the Colorado Court in Schechtel said: *3 but sovereignty, the standing of nature of very “Obviously, a situation different anomaly. apparently theoretical embraces a where, here, exists as the United States If of the Justice acquired jurisdiction has first and cus- any allow circumstance to refuses tody petitioner and at the time the penitentiary to leave a federal returned, state indictment was aswell court, the purpose the of trial in a state during period delay, of the the federal of his deprived right is not government, and not of the state Colo- but, state, Depart speedy by a trial rado, has had him con- under exclusive prisoner to willing ment to allow the is (cid:127) trol. Under such circumstances it would penitentiary under certain stated leave the unless, during seem certain that conditions, then if it not ac the state does sentence, petitioner’s of an un- federal cept bring and such conditions qualified reposed right absolute prisoner’s consti trial does violate require the Colorado authorities to patent rights. position seems tutional This permit presence of ly regards If a the federal unsound. state petitioner trial before Colo- guard, transportation other charge for rado court which the is exorbitant, should a determina services as pending, presence and without which no taken test of of excessiveness be as the held, prosecuting trial could be rights? Obviously not. one’s constitutional charged officers the state not be of could power and au The true test should be the failing with unreasonable by any thority of the state unaided ceed trial state with the on the indict- permission any of au or act of ment.” majority rule thority. This be the seems to Frankel v. adhere to Wood we it. pointed clearly again This 360, 1926), rough, (8th 10 F.2d 361 Cir. panel judges of of an eminent out (8th 163 F.2d 768 Nolan v. United of Kan McCary v. State Tenth Circuit 846, den., cert. 333 68 S.Ct. U.S. Cir. denied, sas, (1960, 364 cert. 281 185 Petition, Yager’s 1130), Re 73), 94, 5 where L.Ed.2d 81 S.Ct. U.S. F.Supp. (Dist.Ct.Ky.1956), United 138 717 in it was said: F.Supp. Jackson, (Dist.Ct. 134 States v. 872 failure of settled that well State, 47 Ky.1955), Lee v. 185 Ark. trial on bring a defendant state State, 143 (1932), Tenn. Raine S.W.2d his con- during period of Hall, (1920), S.W. penal institution on finement 266 Minn. N.W.2d support claim charge will not a federal Larkin, 256 of Minn. Minnesota speedy trial the state of a denial Melton, (1959), Application of N.W.2d 70 rule is that The reason for (Okl.Cr.App.1959), Petition P.2d penal in- the federal he is in Norman, Kir (Del.Sup.1962), wrongdoing of his own State, 222 Md. and control den., 81 S.Ct. cert. court, though the state 5 L.Ed.2d 74. request of grant the might government the defendant custody of the state for stated, we relator’s For the reasons on the state purpose prayer Judge Hon. W. added.) (Emphasis charge.” Court, be to issue ordered 56th corpus ad and author question 29,- Cause No. to trial said way dependent how no ity and is in undisputed docket Under the facts of this case Court, or, alternative, said the dismiss state has to afford trial, speedy has been and no valid excuse why should not

offered as to Petition for mandamus denied. especially be exercised. true since required any is not to surrender its give in order to the relator HAMILTON, (dissenting). requested. the relief respectfully recog I The relief for in the relator’s writ nizes that law in this state as well as granted. of mandamus should-be majority rule in most other states an accused must be afforded *4 CALVERT, J.,C.

after indictment SMITH though incar GREENHILL, join JJ., cerated in this sovereign’s that same in conviction and sen tence. State rel. Moreau v. (1925);

Tex. S.W. 379 Moreover, court has held in Bowman,

Wilson v. (Tex. 381 S.W.2d 320

Sup.1964) pros both the court and positive prevent

ecution are under duty

unreasonable in bringing an accused power and when the court has the NORTH EAST INDEPENDENT SCHOOL DISTRICT, Petitioner, to act it do so. v. However, the court holds that differ- Guy ALDRIDGE, Respondent. ent rule is sep- here because two No. A-10983. arate It holds though effect that even Supreme instant case has the to afford the ac- speedy trial, cused a duty it is under no so, do it has derived its to af- speeedy

ford a permis- trial from

sion act sovereign- of the federal

ty. The opinion writer is of the

more reasonable rule and the more in one

harmony purpose, with the constitutional federal,

both state and providing or in-

suring speedy accused, trial for the is that

where the state has the afford the

accused speedy duty trial it is under a Piscitello,

do People so. 7 N.Y.2d (1960); N.Y.S.2d 165 N.E.2d 849 Patton, N.J.Super. 353, affirmed N.J. (1964); McGrath, Commonwealth v.

Mass. (1965); N.E.2d State ex Fredenberg Byrne,

rel. 20 Wis.2d (1963); Taylor

123 N.W.2d 305 U.S.App.D.C.