## TY~A'ITORNEY GENERAL OF TEXAS

June 14, 1939 Honorable O.J.S. RIlIngson General Manager Texas~PrlsonSystem Huntsville, Texas
Dear Sir: ODinionNO. 0-965 R;: Does Texas~Prlson System have the right to deduct the cost of recapture and return to prison from any money the escapedprisonermay have on deposit with the System?

ask We are in receipt of your opinionrequest wherein you us the followingquestion:
'Does Texas Prison System have the right to deduct the cost of recapture ,andreturn to prison from ang money the~'escaped prisoner may have on deposit with the System?"
In this regard~youmay be advised that the Constitution of the State of Texas, Article 1, Bill ofRights, Section 21, provides as follows:

"No conviction shallwork corruption of blood. or forfeiture of estate, and the estates of 'chelr own lives.shalidescend or vest as natural death." thosewho destroy In the case of

Article 50 of the Revised Penal Code, follows: 1925, provides as

"Whena convict 1s executed or ImprIsoned for life, there shallbe no forfeiture of any kind to the State, nor shall any costs of the prosecutionbe collected from his estate." Article 51 of the Revised Penal Code of Texas, 1925, provides as follows:

"Whena convict Is Imprisoned in the penitentiary, his property shall be controlled as directed by law; but there shall In no criminal case be a forfeiture of any kfnd to the State."Honorable O.J.S. Elllngson, June 14, 1939, page 2 o-965

Although it Is true that a personwho has been convicted of a crime and who is sentenced to the penitentiary Is deprived of his rights as a citizen as to his liberty, it.is also true thatunder the Constitutionand statutes of the State of Texas he still is entitled to-his property rights as they existedprior to the date of his convi~ctlon.The courts have held that convicted felonsmay be sued and may dispose of their property by will or deed, if otherwisepossessed of the statutoryqualifications essential to testamentary capacity. See: Avery v. Everett, 110N.Y. 317, 18 N.E. Rep. 148; Davis etux v. Laning, (SupremeCourt of Texas), 19 S.W. 826a Therefore, it is the opinion. of thisDepartment and ycxl are so advised that the Texas Prison Systemdoes nothave the right to deduct the cost of recapture and return to'prison from any moneythe escapedprisonermay have on depositwith the System. Under the law,when a prisoner gets out of a prison or any place inwhich he may be conflned, or from and out of the authority inwhose custody he Is andunlawfully regains his liberty, thereby becoming freed from the authority and control of the power entitledto restrain him it is our opinion that samewill not work a forfeiture of estate;but that rather, on the other hand, it is the duty and the burden of the incarcerating authorftg to hold such prisoner In Its custody and control and the law does not contemplate that he shall escape therefrom. It Is our opinion, that shouldwe hold to the contrary, itwould in fact be taking the property of the prisoner In questionwtthout due process of law and would thereforebe violating the constitutionalrights and privileges of said convict.

Trusting that thiswill satisfactorilyanswer the question propoundedby you, we remain
Yours truly
ATTORNEY GENERAL OF TEXAS By s/Edgar Gale Edgar Gale Assistant EC:AMW:wc
APPROVED JUR 17, 1939 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/RWF Chairman