OFFICE OF THE ATTORNEY GENERAL OF TEXAS /

Mr. 0. J. S. Elllngson General Manager Texas Prison Syetem Huu~svllle, Texas Dear Sir: AUSTIN

Your lette~ec\~yd&emed to thle 

### orrice reads as follows:
es, 1938 to Bureau of Reself-explanatory: dated November nch Warrant to eoember 17, rrant to Huntste in an Interview with the Claaslflt onNovember 21, 195S ".

. . that ve day8afber hewas released on oLimestone County on 12-17-37 he to the Department of Public Safety at

as amechanlo for the Departxmnt 

### 0rPublic 

### sarety

. . . that for two months of this time hewas carried onthe payroll aa a mechanic at $75.00 per month

. . . that during a part of this ten month8period he lived with his wife andfamily at 1207Viest 34th Street In Austin

. . . that it was decided that it wa8best for himto return to the Texas Prison System after the Arthur Hueychse hadMr. 0. J. 5. Elllngson, Page 2

received so muohpubllolty andthat it was possible that he might return to work for the Department in the event that hewas suooeseful in obtaining an early rsleass by olemenop.

“‘Inasmuoh as this prisoner was in the oustody of the Sheriff only five days of the period that elapsed between Deoember 17, 1937 andNovember 15, 193S, heshould be oredited ‘on his sentence during this period only fire days as wewill haveto oonalder the rest of the tlae the sameas ii he were an esoape as wedo not knowof any right that the Sheriff or anyone else mayhave had to release this inmate to anyone exoept at the expiration oi his term or through areprieve, parole or some bther form of 0lemBnoy.’

“I would like to knowif myruling as General Manager is legally oorreot. Respeotfully,

(Signed) 0. J. S: Elllngson

General Manager 0JSE:wr P.S. I also enolose full oopy of his olassltloatlon report which is attaohed hereto for any other informa& tion you maydesire regarding his interview with our Claesitloatlon Department.” In the ease of ExParte Lowe,

.‘94Tex. Grim. Rep. 307, the Court or Criminal Appeals saldt

“Vieknow of no statute in terns dlreotlng the issuance ot the warrant in question, but at oommon lawand in practice, awarrant issued from the benoh or court for the arrest of a party is denominated a *benoh warrant’

. Webster’s Dlot

. See also Cyo. of Lawk Prao. Vol. 12, p. 343. It is the writ used to oompel the attendancr in oases ot oontempt committed out of oourt (Cyo. Vol. 40, p. 2163,) It is also the writ used to bring a oonvlct confined in the penltentlary to trial in another ease. See Hernandez Y. State,. .

xr. 0. J. 9. RlllngsOn, Page 3

4Texa8 Crlm. App. 425; Gaines 

### Y, State, 63 S.W. Rep. 623; Warhlngton v. State, 1Texas Grim. App. 6471 RxParte Jones, 38Texas Crlm. Rep. 142.” While you de not state ior what purpose the benoh warrant wa8 168ued, wemust presume that it was issued **by** a Court or Judge oorrmandlng the General Lanagsr or Warden o? the Texas Prlron System to deliver the custody o? the named oonvlot to the oifloer namedin the warrant end oommanding the o??loer to bring said oonvlot before the issuing authority ?or the purpose stated in the warrant. In obedlenoe to the warrant, the oonvlot was relearned rrom the penitentiary by delivering himto the Shorl?? o? Limestone County,

It is madeto appear that said sherl??, about iire days after ho obtained oustody o? the oonvlot, released him to the Department o? Pub110Saietp o? the State o? Texas. Bywhat authority hewas 80released is not shown. But

### rrom the etatements madeby the oonvlot to the penitentiary o??lolals aster his return to the penitentiary, welnier it was et the request o? that Department; that the Department held no benoh warrant ?or the oonviot; but desired to um himas an Qnderoover man” in the apprehension o? other orlmlnals. Arepresentative of the Department, ramlllar with all o? the iaots oonoernlng the release of the oonvlot to the Department by the Sheriff, has advised the writer that the convlot was released to the Department wlthout the iomallty o? legal prooess, It is undisputed that the oonvlot had reoelved no ions o? olexenoy iron the Governor whloh would exouae his absenoe irom the penitentiary.

Whatthe convlot did andwas permitted to do arter hewas released by the Sherl?? to the Department up to the time hewas returned to the r nltentlary is stated in your letter and in the Bureau o? lasal?lcatlon~s report on this oonvlot attaohed thereto.

In view o? all the faots and olroumstanoea therein etated, it maybe said that the oonvlot was aneecape tram the time hewas released by the sherl?? until hewas received at the penitentiary, a period o? nearly eleven months.

There are several kinds o? escape recognized by our atatutea andoourts. Articlee 318, 31Sa, 319, 320, 321, 322 Vernon’s Penal Code, and cases there olted; 17Tex. Jur. p. 57. .: ,

Mr. 0. J. 9. Elllngson, Page 4

and authorities. pertain moreto 

### orrloere, their duties and llabllltles than to the subject or what oonetltut ea aneeoape. et seq. These statutes

Anescape maybe madein eeveral different ways. The elements of escape are stated in 10R.C.L. pp. 579, 580, as ?ollows: WElsmentsof Esoape.- Escape, prison breaking andrescue have in oommonone purpose andthat 1s the regaining by a person in the custody of the law of his unrestrained freedom. They differ, however, in the method bywhloh that freedom is attained. The.escape maybe defined to bethe voluntary departure o? a person without force from the law?ul custody of ano??lOer or from any place where he le law?ully oonilned. It is also the dellveranoe of a prleoner whois laniully imprisoned before he la entitled to such dellveranoe by law. Escapee are eometlmes olasslfled as aotual andoonetruotlve, negligent andvoluntary. Aoonstruotlve escape takes place whenthe prisoner obtains M)re liberty than the law allows although hestill remain8 in oonflnement. Voluntary esoape hasbeen defined by etatuts to oonslst in voluntarily suiferlng, permlttlng or conniving at the escape of a prisoner from custody or permitting himto go at large by the officer having law?ul oustody of him. It is not neoessary that the officer dothis with the intent to save the prisoner from trial or the execution of a sentence, andtherefore euoh intent le not one of the elements oonstltuting ths offense. Anescape in law hastwo separate meanings. Theone involves the aot of the prisoner, the other the act of the orrloer having himin oustody~. Whenthe prisoner goes awayfrom his place of law?ul oustody, the escape is the act of the prisoner; but whenthe prisoner 

### 18 allowed to leave his place of con?lne.nent, either negligently or voluntarily, by the offloer having him in oustody, the escape is the act of the otfloer. In either event, whether a person under lawful arrest and restrained of hle liberty evades suoh arrest and restraint through his ownact or by sufferance of the offloer, andgoes at large before delivered by due oourae of law, an escape is committed.”.-, .

Mr. 0. J, 3. Ellingeon, Page 6

It ir our opinion that the aonvlot VanThurman, NO.85961, should be oonaldered as on esoepe from the tie he was r&leased by the Sheriff of Llmwtone County until he was received baok et the penitentiary.Yours very truly ATTORNEYGDIERAL OF

BWBIBBB Bruoe W. Bryant Assistant

APPROVECJCJN

24, 1939

A**ORNE-Y

GENERAL

OFTmB