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 of appearing before the Joint Committee on 

Prison Reform. YOU have 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 to Austin for the 

purpose of appearing 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 of your 

obligation to comply with such a request, even if authority to’s0 transport prisoners exists. 

The Joint Committee on Prison Reform was set up to “study needed 

reforms in the Texas system of imprisonment of convicted 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. 1220 
The 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 to under,take. 

There is no question that the Joint Committee has authority under 

Article 616622, V. T. C. S., to visit the Department of Corrections and 

to take the testimony of inmates. That article provides: 

“The Governor, and all other members of the 

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 to a standing committee by the Legislative Reorganization Act of 1961. Section 7, Art. 5429f, V. T. C.S. Section 

18 of that 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 of its duties, of the 

State Auditor’s Department, the Texas Legislative 

Council, the Texas Department of Public 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, 1221 
The Honorable W. J. Estelle, Jr., page 3 (H-261) 

It does not appear that the Joint: Commi,ttee on Prison 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 a prerequisite 

to the exercise of subpoena powers by a 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, 

5 40, Rule 8, Rules of the House of Representatives, 1973, neither the 

Senate Rules nor the Joint Rules contain such authorization. Authorization to issue process by only one House is not sufficient for a joint 

committee. 

Thus, in carrying out its responsibilities, the Joint Committee 

on Prison Reform has authority to take the testimony of prisoners 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 of this State.Since 

the Committee is without the power to issue process for witnesses to 

appear, the question of whether the Committee might compel the attendance of prisoners at its hearings in Austin is not presented here. 

The Texas Board of Corrections is responsible through its agent, 

the Director of the Texas Department of Corrections, “for the management of the affairs of the Prison System and for the proper care, treatment, feeding, clothing and management of the prisoners confined therein. ” 

Article 6166g. V, T. C. S. 

The only specific statutory authorization regarding transportation 

of prisoners pertains to bringing them to the prison. The director is to 

make provision for transportation of prisoners by arrangement with the 

sheriff of the county where the prisoner is held, if the sheriff is willing 

to provide 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 to the prison if that alternative is most 

economical. 

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

Of course there are several ways in which prisoners may be 

taken outside the prison for temporary periods. They may be attached 

to appear and testify in any court in this state, Art. 24. 13,V.T.CCP., 

and may be compelled toappear for trial upon a bench warrant, which 

is the writ used to bring a confined convict to trial in another case. 

Ex parte Lowe, 251 S. W. 506 (Tex. Crim.App. 1923). And the Board 

of Pardons and Paroles apparently has authority to have prisoners 

appear before it for interviews prior to a decision on parole by virtue 

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 a college campus 

for work under Art. 6166x-2, V. T. C.S., and to work under the work 

furlough program of Art. 6166x-3, V. T. C. S. 

While there is no specific statutory authorization for you to transport prisoners to the site of a Legislative Committee hearing, we 

believe that the statutory duty imposed on State departments to assist 

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 to authorize the transportation of prisoners to 

such a hearing. 

However, even though your department has a general obligation 

to assist the Committee upon its request, the extent to which you are 

able to comply will depend upon a number of factors. Determinations 

must be made as to what 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 of prisoners 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 on appropriate methods of handling 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, 178 S. W. 2d 

p. 1223 
The 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 to the demands 

for prison security and orderly administration. 

In this situation, the Legislative Committee has a valid interest 

in obtaining the testimony of prisoners in order to carry out its duties. 

You have a duty to maintain control of prisoners committed to your 

custody by the judiciary. 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 of the prison. Your obligation to assist the Committee cannot exceed your duty of proper management of prisoners. In a situation involving such possibly conflicting 

interests between two branches of government, the Texas Supreme Court 

has said: 

“Coordination or co-operation of two or more 

branches or departments of government in the solution 

of certain problems is both the usual and expected 

thing. ‘I Stat.e Board of Insurance V. Betts, 308 S. W. 

2d 846, 852 (Tex. 1958). 

To directly answer your first question, the Texas Department of 

Corrections can transport an Inmate to Austin for the purpose of appearing 

before the Joint Committee o,n Prison Reform under the authority of Art. 

5429f. $18, above, but i,n doing so should adopt, all reasonable means to 

provide effective control of such prisoner. 

As to your second question, the State is not ordinarily liable for 

the torts or negligence of officers, agents, or servants engaged in the 

performance of a governmental function, unless it has expressly assumed 

that liability. Tex. Jur. Ld, p. 293 (1963). Members of the Department 

cannot be held personally liable for injuries negligently inflicted by a 

prisoner without a showing that they were, in their personal rrlatioR 

guilty df misfeasance 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 

to any fo,reseeable circumstances in view of the exceptions contained 

in 5 14 of the Act which except from the application of the Act claims 

arising out of failure to provide, or the method of providing police 

protection, and claims arising out of assault, 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, no writ) (custody of prisoner in county 

jail a police function), and Beggs v. Texas Department of Mental 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 of immunity). 

Your liability, if any, for criminal acts of a prisoner under circumstances involving a legislative hearing would probably be the same 

as you face when transporting prisoners to a college campus for work 

under Art. 6166x-2, V. T. C. S., or to work under the work furlough 

program of Art. 6166x-3, V. T. C. S., or on any other authorized activity which requires prisoners to go beyond the immediate confines of 

the pcnetentiary. 

However, the question of liability of the State or the pereonal liability of its agents for negligence involving prisoners will depend upon 

the particular facts and circumstances of each case. 

SUMMARY 

The Department of Corrections has authority 

to transport prisoners to a Legislative Committee 

hearing in Austin at the Committee’s request. 

Yours very truly, 

Attorney General of Texas 

p. 1225 
. . 

. . 

* 

The Honorable W. J., Estelle, page 7 (H-261) 

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DAVID M. I IU3ND.---, -..-a- .*.s.. 

Opinion Committee 

p. 1226