ihKxTr!cuX BR. 7rEme 

September 10, 1962 

Honorable Ward W. Markley 

County Attorney 

Jasper, Texas 

Dear Mr. Markley: 

Opinion No. WW-1436 

Re: Questions relative to the 

construction of Article 

511Ba, V.C.S. 

You have requested the opinion of the Attorney General concerning the construction of Article 5118a, V.C.S., by asking the 

following questions. 

1. 

2. 

3. 

4. 

5. 

6. 

Can the Sheriff permit a prisoner to leave a jail 

to attend a Church service and then return to the 

jail without a guard? 

Can the Sheriff permit a prisoner the privilege to 

go home at night and return the following morning? 

Can the Sheriff permit a prisoner to go home and 

sit up with a sick member of his family and return 

the next day? 

Can the Sheriff permit a prisoner to work upon 

County property without a guard? 

Can the Sheriff permit a prisoner to drive his 

private automobile, sending him on errands without guard? 

Can the Sheriff permit a prisoner who has been 

committed to jail to go to a store and buy cigarettes and return to the jail without a guard? 

Article 5118a, Vernon's Civil Statutes, provides in part 

the following: 

"In order to encourage county jail discipline 

a distinction may be made in the term of prisoners 

so as to extend to all such as are orderly, industrious and obedient, comforts and privileges according to their deserts; the reward to be bestowed on 

prisoners for good conduct shall consist of such relaxation of strict county jail rules, and extension 
Honorable Ward W. Markley, page 2 (w-1436) 

of social privileges as may be consistent with proper 

discipline." (underscoring ours) 

Article 787, Vernon's Code Criminal Procedure, provides 

in part: 

"When a judgment has been rendered against a 

defendant for a pecuniary fine, if he is present, 

he shall be imprisoned in jail until discharged as 

provided by law . . . v 

Article 319, Vernon's Penal Code, provides: 

"Any officer, jailer, or guard having the 

custody of a person accused or convicted of a ..^ . . . 

legal 

misdefol 

meanor wno wilr~ully permits sucn person to escape or 

to be rescued shall be fined not exceeding one thousand 

dollars." 

Article 42, Vernon's Code Criminal Procedure, provides: 

"When a prisoner is committed to jail by warrant from 

a magistrate or court, he shall be placed in jail by 

the sheriff. It is a violation of duty on the part 

of any sheriff to permit a defendant so committed to 

remain out of jail, except that he may, when a defendant is committed for want of bail, or when he arrests 

in a bailable case, give the person arrested a reasonable time to procure bail; but, he shall so guard the 

accused as to prevent escape." 

Article 5116, Vernon's Civil Statutes, provides in part as 

lows: 

"Each sheriff is the keeper of the jail of his 

county. He shall safety keep therein-all prisoners 

committed thereto by lawful authority, subject to 

the order of the proper court, and shall be responsible for the safe keeping of such prisoners." 

(Emphasis added) 

The courts have consistently held that prisoners must remain 

in jail until they have been lawfully discharged. See Ex Parte 

Wyatt, 16 S.W. 301, 29 Tex. App. 398 (18911, wherein the court 

held: 

"It is manifest from these provisions of our 

law, that, whenever a party is committed to jail 

by order of the court, it means imprisonment in 

the jail; and no other kind of custody, whether 
d - 

Honorable Ward W. Markley, page 3 (WW-1436) 

agreed to by the sheriff or not, will answer or 

discharge such punishment. The sheriff has no 

right, no matter what his motives, whether of 

humanity or not, to commute or alter this punishment, and any act of his doing so is a violation 

of his duty, and absolutely void e e . . Until he 

has served the allotted time in jail, he has not 

complied with the judgment, nor has he discharged 

it; it cannot be otherwise discharged . . . . The 

agreement of the sheriff to permit him to go at 

large being absolutely void, the law for such time 

will treat him as a prisoner at large, without 

authority, in other words, as an escaped prisoner." 

In Dufek v. Harrison County 289 S.W. 741 (1926), the court 

held that it was the sheriff's d:ty to hold the prisoner in jail 

until he was lawfully ordered to discharge him, unless the prisoner in the meantime furnished a bail bond as re 

This court quoted Luckev v. State, 14 Tex. 400 

uired by law. 

(1 8 55) which held: 

"The imprisonment, authorized by the Statute, 

is an actual imprisonment, within the four walls 

of the jail; and where the Sheriff permits a convict committed to his custody to go at large, he 

is liable for an escape." 

The Supreme Court of North Carolina in Sutton v. Williams, 

155 S.E. 160 (1930), held that the sheriff and jailor, by allowing 

a prisoner to drive an automobile on their errands or-for other - 

purposes, permitted an escape; 

a trusty was no justification. 

and the fact that the prisoner was 

"Escape" has been defined by the courts as that which takes 

place when the prisoner gets out of prison or any place in which 

he may be confined, 

custody he is, 

or from and out of the authority in whose 

and unlawfully regains his liberty, freed from the 

authoritv and control of the Dower entitled to restrain him. 

Carter vi State, 14 S.W. 350,.29 Tex. Ap 

David McBurney and Son, 112 A. 675 (19217: 

5 (1890); Safron-v. 

The caption of H.B. 290, 54 Leg.R.S., 1955, Ch. 461, P. 1182, 

which is now Article 5118a, V.C.S., is worded in part thusly: 

"An Act to encourage discipline in county jails; 

authorizing a system of reward for good jailee conduct; . . . It 

Based upon the above statutes and cases, it is the opinion of 

this office that the only interpretation of the quoted part of 

Article 5118a, V.C.S., that is consistent with a practical analysis of the statutes and existing cases cited herein is one that 
Honorable Ward W. Markley, page 4 (~-1.436) 

limits the relaxation of discipline set out in Article 5118a to 

the internal affairs of a county jail. There is nothing in 

Article 511&a, V.C.S., that indicates that the sheriff is authorized to let a prisoner out of jail prior to the expiration or 

commutation of his sentence. Its only application is to prisoners within the four walls of the county jail and does not extend 

outside of the county jail, 

Articles 794, Vernon's Code Criminal Procedure, provides in 

part: 

"Where the punishment assessed in a conviction 

for misdemeanor is confinement in jail for more than 

one day, or where in such conviction the punishment 

is assessed only at a pecuniary fine and the party 

so convicted is unable to pay the fine and costs adjudged against him, those so convicted shall be required to do manual labor in accordance with the provisions of this article under the following rules and 

regulations . . . 

"4. Those so convicted shall be so guarded while 

at work as to prevent escape. 

'15. They shall be put to labor upon the public 

roads, bridges or other public works of the county 

when their labor cannot be utilis:d in the county 

workhouse or county farm . e e o 

Article 5116, makes the sheriff the keeper of the jail 

and provides that he shall safely keep "therein" all prisoners 

committed thereto by lawful authority subject to the order of the 

proper court. Article 5118a merely allows the sheriff to relax 

discipline within the jail under the conditions set out therein. 

Article 794 allows prisoners to be used as manual labor on certain 

public works only when properly guarded. This is the only ex$eption allowing a prisoner to perform work outside the jail. 

therefore hold in answer to your questions that, unless guarded, 

prisoners must remain within the jail at all times, unless a court 

order permits otherwise. Ex Parte Monevhun, 274 S.W.2d 546 (Tex. 

Crim. 1955); Ex Parte Griffin, 258 S.W.2d 324 (Tex. Crim. 1953); 

Ex Parte Morgan, 262 S.W.2d 728 (Tex. Crim. 1953). 

SUMMARY 

Unless guarded, prisoners must remain within the 

jail at all times, unless a court order permits 

otherwise. Article 5118a, V.C.S., merely allows 

the sheriff to relax discipline within the jail 
Honorable Ward W, Markley, page 5 (W-1436) 

under the conditions set out therein. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BY 

Charles R. Lined 

Assistant Attorney General 

CRLzsm 

APPROVED; 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Elmer McVey 

Dudley McCalla 

Sam Wilson 

Frank Booth 

REVIEWED FOR THE ATTORNEP GENERAL 

BY: Leonard Passmore