dissenting.
The majority concludes that, if an escaped prisoner violates the Department’s rules of conduct while he is outside the walls of the institution, he cannot be punished for those violations. By so holding, the majority permits this inmate to author his own justice. Because I believe that the rules do cover petitioner’s misconduct, I respectfully dissent.
This court previously has addressed the circumstances under which an individual is subject to the Correction Division’s rules of conduct. In Shobe v. OWCC, 28 Or App 657, 660, 560 P2d 676, rev den 278 Or 393 (1977), we stated the rule:
“The Corrections Division is authorized to adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the division. ORS 421.180. The Corrections Division and OWCC have adopted Major Rules of Conduct pursuant to ORS 421.180 and unless the petitioner can establish that she was not in the legal custody of the Corrections Division or OWCC, she is subject to the rules.” (Emphasis supplied.)
We noted:
“ ‘The word “custody” does not always mean the same thing. An officer or agency may have physical custody separate and apart from, or in combination with, the legal custody of a different officer or agency. The term is elastic and may mean actual imprisonment or other physical detention, or it may refer to mere power, legal or physical, of imprisoning or of taking manual possession. * * *.’ Kneefe v. Sullivan, 2 Or App 152, 155, 465 P2d 741, Sup Ct review denied (1970).” 28 Or App at 660.
Despite his escape, petitioner remained in the legal custody of the Department. It follows that he was subject to its disciplinary rules.
Contrary to the majority’s suggestion, the rules do express an intent to govern conduct that occurs outside the institution. OAR 291-105-005(2) states: “The purpose of this rule is to define the rules of conduct governing inmates * * *.” (Emphasis supplied.) OAR 291-105-010(9) specifically defines *666an “inmate” as “[a]ny person under the supervision of the Department of Corrections who is not on parole or probation status.” Thus, if petitioner continued to be under the Department’s supervision, either actually or constructively, the rules covered his conduct, despite his escape.
The majority concludes, without explanation, that “OAR 291-105-005 et seq do not purport to govern inmate conduct outside the Department’s actual supervision by constructive supervision.” 99 Or App at 664.1 That simply is not the case. By their terms, the rules apply to inmates on “Short-Term Temporary Leave.” See OAR 291-105-010(14). They also apply to persons in the work release program. See ORS 144.490(2);2 State v. Hutcheson, 251 Or 589, 592, 447 P2d 92 (1968). Because inmates in those situations are not always under the actual supervision of the Department, the term “supervision” within the meaning of OAR 291-105-005 et seq must include constructive supervision.
Following the majority’s analysis to its logical conclusion, a prisoner who breaks a disciplinary rule while on work release and returns on time is subject to the disciplinary rules, while one who commits the same misconduct and never returns on his own is not. Neither the statutes nor the rules require that result.3 “ ‘[A]n inmate is considered confined within a “correctional facility” from time of original commitment until lawfully discharged.’ ” State v. Dillenburg, 49 Or App 911, 916, 621 P2d 1193 (1980) (quoting Criminal Law Revision Commission, Proposed Criminal Code, Final Draft 94.) (Emphasis supplied.) Because defendant was never lawfully discharged, he remained under the Department’s supervision and was subject to its rules.
*667In short, we should not reward petitioner for escaping. An inmate does not run away from the rules by running away from the prison. I believe that the Department’s disciplinary rules apply to inmates who escape confinement, and I would affirm the Superintendent’s order.
Deits and Riggs, JJ., join in this dissenting opinion.Given our broad construction of the term “custody,” there is no reason to give “supervision” the majority’s very narrow meaning. To “supervise” means, inter alia, “to superintend”; in turn, “to superintend” means, inter alia, “To have charge and direction of; * * * to regulate with authority.” Black’s Law Dictionary 1606-07 (revised 4th ed 1968). The notion of constructive supervision fits within those definitions.
ORS 144.490(2) provides:
“For purposes of this chapter, a person enrolled in the work release program established under ORS 144.420 is considered to be an inmate of a Department of Corrections institution.”
Nothing in the rules states that their purposes are solely “to protect inmates from each other and to promote the safe internal operation of the state’s correctional facilities.” 99 Or App at 663. Rather, their stated policy is broad— “to insure that both staff and inmates understand what behavior is unacceptable.” OAR 291-105-005(3).