OFFICE OF THE ATTORNEY GENERAL OF TEXAS
/
AUSTIN
Mr. 0. J. S. Elllngson
General Manager
Texas Prison Syetem
Huu~svllle, Texas
Dear Sir:
Your lette~ec\~yd&emed to thle orrice
reads as follows:
es, 1938 to
Bureau of Re-
self-explanatory:
dated November
nch Warrant to
eoember 17,
rrant to Hunts-
te in an Interview with the Claaslfl-
t 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 oon-
alder 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 penlten-
tlary 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??l-
olals 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 ab-
senoe 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 nltentlary is stated in your
letter and in the Bureau o? r 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
et seq. These statutes and authorities. pertain more to orrl-
oere, their duties and llabllltles than to the subject or what
oonetltut ea an eeoape.
An escape may be made in eeveral different ways. The
elements of escape are stated in 10 R.C.L. pp. 579, 580, as ?ol-
lows :
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 de-
parture 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, permlt-
tlng 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
ir our opinion that the aonvlot Van Thurman,
It
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
ATTORNEYGDIERALOF
Bruoe W. Bryant
Assistant
BWBIBBB
APPROVECJCJN
24, 1939
A**ORNE-Y
GENERALOF TmB