March 18, 1974

The Honorable W.J. Estelle, Jr. Director Texas Department of Corrections Huntsville, Texas 77340

Dear Mr.~ Estelle: Opinion No. H- 261 Re: Authority of Department of Corrections to transport prisoners to legislative hearing and liability for criminal acts by inmate Your Department has been asked to transport twelve inmates to Austin for the purpose ofappearing before the Joint Committee on Prison Reform. YOUhave declined to comply with this request and have asked for our opinion on two questions:

1. Under what authority can the Texas Department of Corrections transport inmates toAustin for the purpose ofappearing before the Joint Committee on Prison Reform? 2. What is’the liability of the Board of Corrections and its agents in the event an inmate commits a criminal act under such conditions’? Your inquiry raises the issues of the committee’s authority to request your co-operation in bringing prisoners to testify, and ofyour obligation tocomply with such a request, even if authority to’s0 transport prisoners exists. The Joint Committee on Prison Reform was set upto “study needed reforms in the Texas system of imprisonment ofconvicted persons with the purpose of seeking meaningful alternatives for the present anti-social aspects of the system which are not conduc;ive to the rehabilitation of inmates and their return to society as productive, useful, and law-abiding

p. 1220The Honorable W.J. Estelle, Jr., page 2 (H-261)

citizens.
. . .” Senate Concurrent Resolution No. 87, Acts 1973,63rd Leg., Regular Session, p. 2277. Obtaining the testimony of current prisoners in the Department of Corrections is clearly within the scope of the study which the Committee has been authorized tounder,take. There is noquestion that the Joint Committee has authority under Article 616622, V. T. C.S., tovisit the Department of Corrections and to take the testimony of inmates. That article provides:

“The Governor, and all other members ofthe Executive and Judicial Departments of the State and members of the Legislature shall be admitted into the prisons, camps and other places where prisoners are kept or worked, at all proper hours, for the purpose of observing the conduct thereof, and may hold conversation with the convicts apart from all prison officers. Other persons may vidit the penitentiary under such rules and regulations as may be established. ” A special committee such as the Joint Committee on Prison Reform haa the same authority as is granted toa standing committee by the Legislative Reorganization Act of 1961. Section 7, Art. 5429f, V.T. C.S. Section 18ofthat Act provides in pertinent part as follows:

“Sec. 18. Each standing committee is hereby authorized and empowered to request the assistance, where needed in the discharge ofits duties, ofthe State Auditor’s Department, the Texas Legislative Council, the Texas Department ofPublic Safety, the Attorney General’s Department, and all other State agencies, departments, and offices, and it shall be the duty of such departments, agencies and offices to assist each such Committee when requested to so do,

. . .”

p, 1221The Honorable W.J. Estelle, Jr., page 3 (H-261)

It does not appear that the Joint: Commi,ttee onPrison Reform is authorized to compel the attendance of witnesses. Express authorization by the resolution establishing the commitlee or by the rules of procedure of the House establishing the committee is aprerequisite to the exercise of subpoena powers bya standing or special committee. Section 12, Article 5429f, V.T. C.S.;Attorney General Opinion No. WW1235 (1962). Such specific authorization is not contained in the Joint Committee’s resolution, S.C.R, no. 87, Acts 1973, p. 2277. While the House Rules authorize House standing committees to issue process, 540,Rule 8,Rules ofthe House ofRepresentatives, 1973, neither the Senate Rules nor the Joint Rules contain such authorization. Authorization to issue process by only one House is not sufficient for ajoint committee. Thus, in carrying out its responsibilities, the Joint Committee onPrison Reform has authority to take the testimony ofprisoners within the confines of the Department of Corrections, and in other locations it may receive the voluntary testimony of witnesses and may request the assistance of the agencies, departments, and offices ofthis State.Since the Committee is without the power to issue process for witnesses to appear, the question ofwhether the Committee might compel the attendance ofprisoners at its hearings in Austin is not presented here. The Texas Board of Corrections is responsible through its agent, the Director ofthe Texas Department of Corrections, “for the management ofthe affairs ofthe Prison System and for the proper care, treatment, feeding, clothing and management ofthe prisoners confined therein. ” Article 6166g. V, T. C.S.

The only specific statutory authorization regarding transportation ofprisoners pertains to bringing them to the prison. The director is to make provision for transportation ofprisoners byarrangement with the sheriff ofthe county where the prisoner is held, if the sheriff is willing toprovide such service more economically than the director could do it otherwise. Article 6166r, V. T. C.S. This language clearly implies the authority to transport prisoners tothe prison if that alternative is most economical.

p” 1222The Honorable W.J. Estelle, Jr., page 4 (H-261)

Ofcourse there are several ways in which prisoners may be taken outside the prison for temporary periods. They may be attached toappear and testify in any court in this state, Art. 24. 13,V.T.CCP., and may be compelled toappear for trial upon abench warrant, which is the writ used to bring a confined convict to trial in another case. Ex parte Lowe, 251S.W. 506 (Tex. Crim.App. 1923). And the Board ofPardons and Paroles apparently has authority tohave prisoners appear before it for interviews prior to adecision on parole byvirtue of $15,Art. 42.12, V. T. C.C.P., although we understand that in practice such interviews are conducted at the prison. You also have authority to transport prisoners to acollege campus for work under Art. 6166x-2, V. T. C.S., and towork under the work furlough program ofArt. 6166x-3, V. T. C.S. While there is no specific statutory authorization for you to transport prisoners to the site ofa Legislative Committee hearing, we believe that the statutory duty imposed on State departments toassist legislative committees under ! 18, Art. 5429f, V. T. C.S., combined with your general authority for the managemeti of prisoners, Art. 6166g, V.T.C.S.. is sufficient toauthorize the transportation ofprisoners to such ahearing. However, even though your department has a general obligation to assist the Committee upon its request, the extent towhich you are able to comply will depend upon a number offactors. Determinations must be made astowhat resources are available to provide the assistance requested, and how it can be provided in a manner consistent with your principle responsibility of maintaining control ofprisoners in your custody. These matters are at least initially within your discretion. Prison officials are vested with broad discretion in safekeeping and securing prisoners committed to their custody, and courts traditionally have been reluctant to interfere with their decisions onappropriate methods ofhandling their wards unless paramount constitutional or statutory rights are at stake. Cruz v. Beto, 405 U.S. 319(1972); Johnson v. Avery, 393 U.S. 483 (1969): Milligan v. State, 178S.W. 2d

p. 1223The Honorable W.J. Estelle, Jr., page 5 (H-261)

524 (Tex. Crim. 1944); Wilmans v. Harstol, 234 S.W. 233 (Tex. Civ. ----. App. Dallas, 1921,no writ). Even where such rights are involved, the cases recognize the need to deal with them in relation tothe demands for prison security and orderly administration. In this situation, the Legislative Committee has avalid interest in obtaining the testimony ofprisoners in order to carry out its duties. You have a duty to maintain control ofprisoners committed to your custody by thejudiciary. The Commit.tee’s desire to take testimony of prisoners outside the prison requires your cooperation and assistance. Rendering such assistance involves problems of control beyond the normally available physical security facilities ofthe prison. Your obligation to assist the Committee cannot exceed your duty ofproper management ofprisoners. Ina situation involving such possibly conflicting interests between two branches ofgovernment, the Texas Supreme Court has said:

“Coordination or co-operation oftwo or more

branches or departments ofgovernment in the solution ofcertain problems is both the usual and expected thing. ‘I Stat.e Board ofInsurance V. Betts, 308S.W. 2d 846, 852 (Tex. 1958). To directly answer your first question, the Texas Department of Corrections can transport an Inmate toAustin for the purpose ofappearing before the Joint Committee o,nPrison Reform under the authority ofArt. 5429f. $18, above, but i,ndoing so should adopt, all reasonable means to provide effective control of such prisoner. As toyour second question, the State is not ordinarily liable for the torts or negligence of officers, agents, or servants engaged in the performance ofa governmental function, unless it has expressly assumed that liability. Tex. Jur. Ld, p. 293 (1963). Members of the Department cannot beheld personally liable for injuries negligently inflicted bya prisoner without a showing that they were, in their personal rrlatioR guilty dfmisfeasance or malleasance or co-operated in some way with the prisoner in his tortious al:L. Texas Prison Board v. Cabeen. 159 -- S.W. 2d 523 (Tex. Civ. App. Beaumont, 194L, writ ref ’d).

po 1224’. The Honorable W.J. Estelle, Jr., page 6 (H-261)

It is doubtful that the Texas Tort Claims Act would be applicable toany fo,reseeable circumstances in view of the exceptions contained in 514ofthe Act which except from the application ofthe Act claims arising out offailure to provide, or the method ofproviding police protection, and claims arising out ofassault, battery, false imprisonment or any other intentional tort. Subsections t4(9) and 14(10), Art. 6252-19, V. T. C.S. See Davis v. County of Lubbock, 486 S.W. 2d 109 (Tex. Civ.App. Amarillo, 1972, nowrit) (custody of prisoner in county jail a police function), and Beggs v. Texas Department ofMental Health and Mental Retardation, 496 S.W. 2d 252 (Tex. Civ.App. San Antonio, 1973, writ ref

’d).(mentalpatient doused another with lighter fluid and .ignited, not within Tort Claims Act waiver ofimmunity). Your liability, if any, for criminal acts ofa prisoner under circumstances involving a legislative hearing would probably be the same as you face when transporting prisoners toa college campus for work under Art. 6166x-2, V. T. C.S., or towork under the work furlough program ofArt. 6166x-3, V. T. C.S., or onany other authorized activity which requires prisoners to go beyond the immediate confines of the pcnetentiary. However, the question of liability ofthe State or the pereonal liability ofits agents for negligence involving prisoners will depend upon the particular facts and circumstances ofeach case. SUMMARY The Department of Corrections has authority to transport prisoners toa Legislative Committee hearing in Austin at the Committee’s request. Yours very truly,

Attorney General of Texas

p. 1225. .

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### TheHonorable W.J.,Estelle, page 7 (H-261)



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