dissenting.
I respectfully disagree with my fellow judges and agree with appellant’s fifth ground of error in that the indictment is fundamentally defective and I would reverse the conviction and order the indictment dismissed.
The appellant was indicted under Section 39.021(a)(1) of the Texas Penal Code Ann. (Vernon Supp.1982-83) titled Violation of the Civil Rights of a Prisoner. The indictment contained two paragraphs.
The relevant parts of the indictment state:
PARAGRAPH ONE
Alleged that appellant did then and there ... unlawfully as a peace officer, namely a Harris County, Texas, Deputy Sheriff, intentionally subject Steven Barnette, hereafter styled the complainant, a person in the Defendant’s custody to bodily injury by striking the complainant with his hand and leg knowing his conduct was unlawful and the death of the complainant occurred as a result of said bodily injury.
*633PARAGRAPH TWO
Alleged that the appellant did then and there ... unlawfully as a peace officer, namely, a Harris County, Texas, Deputy Sheriff, having in his custody Steven Barnette, hereafter styled the complainant, intentionally subject the complainant to bodily injury by striking the complainant with his hand, and by pulling the complainant’s hair with his hand, and by standing on the complainant with his foot knowing his conduct was unlawful.
The jury acquitted the appellant of the charge in paragraph one and found him guilty of the charge in paragraph two of the indictment.
Section B9.021 of the Texas Penal Code provides:
(a) A peace officer or a jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections commits an offense if he:
(1) intentionally subjects a person in his custody to bodily injury knowing his conduct is unlawful;
Tex.Penal Code Ann. § 39.021(a) (Vernon Supp.1982-83). My reading and interpretation of Section 39.021(a)(1) is that a peace officer or a jailer or guard must be employed at a municipal or county jail or by the Texas Department of Corrections in order to have committed an offense under this section of the penal law.
The indictment in our case did not charge or allege that the appellant was employed at a municipal or county jail or by the Texas Department of Corrections; therefore, it is fundamentally defective. It is my interpretation of Section 39.021(a)(1) that it does not apply to situations involving a street arrest by a deputy sheriff but applies specifically to acts of violence committed upon the person of a prisoner by peace officers or jailers or guards employed at municipal or county jails or by the Texas Department of Corrections.
In 1983 the Texas legislature amended Section 39.021(a) to include as prohibited acts those civil violations committed by all peace officers as well as those previously proscribed acts committed by guards and jailers.
The amended act reads as follows:
(a) A jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections or a peace officer commits an offense if he:
(1) intentionally subjects a person in custody to bodily injury knowing his conduct is unlawful; (emphasis ours).
The appellant was tried under Section 39.021(a)(1) as it was written in 1979 and it is clear to me that he did not violate this particular statute.
Since the indictment fails to allege that the appellant was a peace officer or jailer or guard employed by either a municipal or county jail or by the Texas Department of Corrections, the indictment fails to state an offense against Section 39.021 of the Texas Penal Code.
I would reverse the conviction and order the indictment dismissed.