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 on November 21, 195S ". . . that 

ve day8 afber he was released on 

o Limestone County on 12-17-37 he 

to the Department of Public Safety at 

as a mechanlo for the Departxmnt 

0r Public sarety . . . that for two months of this 

time he was carried on the payroll aa a mechanic at 

$75.00 per month . . . that during a part of this 

ten month8 period he lived with his wife and family 

at 1207 Viest 34th Street In Austin . . . that it 

was decided that it wa8 best for him to return to the 

Texas Prison System after the Arthur Huey chse had 
Mr. 0. J. 5. Elllngson, Page 2 

received so muoh publlolty and that it was possible 

that he might return to work for the Department in 

the event that he was 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 and November 15, 

193S, he should be oredited ‘on his sentence during 

this period only fire days as we will have to oonalder the rest of the tlae the same as ii he were 

an esoape as we do not know of any right that the 

Sheriff or anyone else may have had to release this 

inmate to anyone exoept at the expiration oi his 

term or through a reprieve, parole or some bther 

form of 0lemBnoy.’ 

“I would like to know if my ruling 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 may desire regarding his interview with our 

Claesitloatlon Department.” 

In the ease of Ex Parte Lowe, .‘94 Tex. Grim. Rep. 307, 

the Court or Criminal Appeals saldt 

“Vie know of no statute in terns dlreotlng the 

issuance ot the warrant in question, but at oommon 

law and in practice, a warrant issued from the 

benoh or court for the arrest of a party is denominated 

a * benoh warrant’ . Webster’s Dlot . See also Cyo. of 

Law k 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 

4 Texa8 Crlm. App. 425; Gaines Y, State, 63 S.W. 

Rep. 623; Warhlngton v. State, 1 Texas Grim. App. 

6471 Rx Parte Jones, 38 Texas Crlm. Rep. 142.” 

While you de not state ior what purpose the benoh 

warrant wa8 168ued, we must 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 named in 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 him to the Shorl?? o? Limestone County, 

It is made to appear that said sherl??, about iire 

days after ho obtained oustody o? the oonvlot, released him 

to the Department o? Pub110 Saietp o? the State o? Texas. 

By what authority he was 80 released is not shown. But rrom 

the etatements made by the oonvlot to the penitentiary o??lolals aster his return to the penitentiary, we lnier it was 

et the request o? that Department; that the Department held 

no benoh warrant ?or the oonviot; but desired to um him as 

an Qnderoover man” in the apprehension o? other orlmlnals. 

A representative 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. 

What the convlot did and was permitted to do arter 

he was released by the Sherl?? to the Department up to the 

time he was 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 may be said that the oonvlot was an eecape tram 

the time he was released by the sherl?? until he was received 

at the penitentiary, a period o? nearly eleven months. 

There are several kinds o? escape recognized by our 

atatutea and oourts. Articlee 318, 31Sa, 319, 320, 321, 322 

Vernon’s Penal Code, and cases there olted; 17 Tex. Jur. p. 57 
. .: , 

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

and authorities. pertain more to orrloere, their duties and llabllltles than to the subject or what 

oonetltut ea an eeoape. 

et seq. These statutes 

An escape may be made in eeveral different ways. The 

elements of escape are stated in 10 R.C.L. pp. 579, 580, as ?ollows : 

WElsments of Esoape .- Escape, prison breaking 

and rescue have in oommon one purpose and that 1s 

the regaining by a person in the custody of the law 

of his unrestrained freedom. They differ, however, 

in the method by whloh that freedom is attained. 

The. escape may be defined to be the voluntary departure o? a person without force from the law?ul 

custody of an o??lOer or from any place where he 

le law?ully oonilned. It is also the dellveranoe 

of a prleoner who is laniully imprisoned before he 

la entitled to such dellveranoe by law. Escapee 

are eometlmes olasslfled as aotual and oonetruotlve, 

negligent and voluntary. A oonstruotlve escape 

takes place when the prisoner obtains M)re liberty 

than the law allows although he still remain8 in 

oonflnement. Voluntary esoape has been defined by 

etatuts to oonslst in voluntarily suiferlng, permlttlng or conniving at the escape of a prisoner from 

custody or permitting him to go at large by the 

officer having law?ul oustody of him. It is not 

neoessary that the officer do this with the intent 

to save the prisoner from trial or the execution of 

a sentence, and therefore euoh intent le not one of 

the elements oonstltuting ths offense. An escape 

in law has two separate meanings. The one involves 

the aot of the prisoner, the other the act of the 

orrloer having him in oustody~. When the prisoner 

goes away from his place of law?ul oustody, the escape 

is the act of the prisoner; but when the 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 own act or by sufferance of the 

offloer, and goes 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 Van Thurman, 

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 OF TmB