ihKxTr!cuX BR. 7rEme

September 10, 1962 HonorableWard W. Markley CountyAttorney Jasper,Texas Dear Mr. Markley: OpinionNo. WW-1436 Re: Questions relative to the constructionof Article 511Ba,V.C.S. You have requested the opinion of the Attorney General concerning the constructionof 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 jailwithout a guard? Can the Sheriff permit a prisoner the privilege to go home at night and return the followingmorning? Can the Sheriff permit a prisoner to go home and sit up with a sickmember of his family and return the next day? Can the Sheriff permit a prisoner to work upon County propertywithout a guard? Can the Sheriff permit a prisoner to drive his private automobile, sendinghim on errandswithout guard? Can the Sheriff permit a prisonerwho has been committed to jail to go to a store and buy cigarettes and return to the jailwithout a guard? Article 5118a,Vernon's Civil Statutes,provides in part the following:

"In order to encourage county jail discipline a distinctionmay be made in the term of prisoners so as to extend to all such as are orderly, industrious and obedient, comforts and privilegesaccording to their deserts; the reward to be bestowed on prisoners for good conduct shall consist of such relaxation of strict county jail rules, and extensionHonorable Ward W. Markley, page 2 (w-1436) of socialprivilegesas may be consistentwith proper discipline." (underscoringours) Article 787,Vernon's Code Criminal Procedure, provides in part: "When a judgmenthas been rendered against a defendant for a pecuniary fine, if he is present, he shallbe imprisoned in jail until discharged as providedby law

. . . v Article 319, Vernon's Penal Code, provides: "Any officer, jailer, or guard having the custody of a person accused or convictedof a

..^
.. . legalmisdefol meanorwno wilr~ully permits sucn person to escape or to be rescued shallbe fined not exceeding one thousand dollars." Article 42, Vernon's Code Criminal Procedure, provides: "When a prisoner is committed to jailby warrant from a magistrate or court,he shallbe placed in jailby the sheriff. It is a violation of duty on the part of any sheriff to permit a defendant so committedto 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 procurebail; 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-allprisoners committed theretoby lawful authority, subject to the order of the proper court, and shallbe responsible for the safe keeping of such prisoners." (Emphasisadded) The courtshave consistentlyheld that prisonersmust remain in jail until they have been lawfullydischarged. See Ex Parte Wyatt, 16 S.W. 301, 29 Tex. App. 398 (18911,wherein the court held: "It ismanifest from these provisions of our law, that, whenever a party is committedto jail by order of the court, itmeans imprisonment in the jail; and no other kind of custody,whetherd -

HonorableWard W. Markley, page 

### 3 (WW-1436) agreed to by the sheriff or not, will answer or discharge such punishment. The sheriffhas 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 absolutelyvoid e e . . Until he has served the allotted time in jail,he has not compliedwith the judgment,nor has he discharged it; it cannotbe otherwise discharged

. . . . The agreement of the sheriff to permit him to go at large being absolutelyvoid, the law for such time will treat him as a prisoner at large,without authority, in otherwords, as an escapedprisoner." In Dufek v. Harrison County 289 S.W. 

### 741 (1926),the court held that itwas the sheriff'sd:ty to hold the prisoner in jail until he was lawfully ordered to dischargehim, unless the prisoner in the meantime furnished a bail bond as re This court quoted Luckev v. State, 

### 14Tex. 400 uired by law. (1 

### 55)which held: 8 "The imprisonment,authorizedby 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 trustywas no justification.and the fact that the prisonerwas
"Escape"has been definedby the courts as thatwhich takes place when the prisoner gets out of prison or any place in which he may be confined, custodyhe 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 restrainhim. Carter vi State, 

### 14 S.W. 

### 350,.29Tex. 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:

"AnAct to encouragediscipline 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 interpretationof the quotedpart of Article 5118a,V.C.S., that is consistentwith a practicalanalysis of the statutes and existing cases cited herein is one thatHonorableWard W. Markley, page 4 

### (~-1.436)

limits the relaxation of discipline set out inArticle 5118a to the internal affairs of a county jail. There is nothing in Article 511&a,V.C.S., that indicatesthat the sheriff is authorized to let a prisoner out of jailprior to the expiration or commutationof his sentence. Its only application is to prisonerswithin the four walls of the county jail and does not extend outside of the county jail, Articles794,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 againsthim, those so convicted shallbe required to do manual labor in accordancewith the provisions of this article under the following rules and regulations

. . . 

### "4. Those so convicted shall be so guardedwhile at work as to prevent escape. 

### '15.They shallbe put to labor upon the public roads, bridges or other publicworks 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 disciplinewithin the jail under the conditions set out therein. Article 794 allows prisoners to be used as manual labor on certain publicworks onlywhen properly guarded. This is the only ex$eption allowing a prisoner to performwork outside the jail. therefore hold in answer to your questions that, unless guarded, prisonersmust remainwithin 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 ParteMorgan, 262 S.W.2d 728 (Tex.Crim. 

### 1953). SUMMARY Unless guarded, prisonersmust remainwithin the jail at all times, unless a court order permits otherwise. Article 5118a,V.C.S.,merely allows the sheriff to relax disciplinewithin the jailHonorable 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 AssistantAttorney 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