specially concurring.
I concur with the majority opinion on the first two issues. However, in my view the trial court did not err in assuming jurisdiction on the third issue, namely, petitioner’s claim that he was not given a constitutionally adequate hearing when the Corrections Division terminated petitioner’s participation in the school release program.
The majority opinion states that the Corrections Division’s action in terminating petitioner’s school release and ordering him back to the penitentiary was an interinstitutional transfer mentioned in ORS 421.195,① and that therefore any appeal from this action must be to this court rather than to the circuit court. To treat this as an ‘institutional transfer’ is inconsistent with the existing statutes as well as prior decisions of this court dealing with the legal status of educational and work release enrollees.
The only statutory provisions that I have been able to find which deal with the transfer of inmates between state institutions are the following:
Transfers of inmates from one state institution *6to another state institution are provided for generally in ÓRS 179.473 et seq.
Transfers of inmates from Oregon correctional institutions to penal institutions outside the state or to a county jail in this state are provided for in ORS 421.205 et seq.
It. is my conclusion after examining these statutes that the term ‘institutional transfer’ has had, up to the present, a settled usage in our statutes; and that the action taken by the Corrections Division in the case at bar was not an ‘institutional transfer’ as that term has been used heretofore in Oregon statutes dealing with transfer of inmates of the various state institutions.
As an additional reason for my conclusion I call attention to the following: We are dealing here with an inmate of our penitentiary who was enrolled in an educational release program at the University of Oregon. The educational release program is officially part of the work release program. ORS 144.420. An inmate outside the penitentiary on educational or work release is considered as still being in the constructive custody of the penal institution where he was previously confined. ORS 144.490(2) and 144.500. If he leaves his assignment without permission and does not return, he is guilty of escape from the penal institution. ORS 144.500; State v. Wolfe, 10 Or App 118, 497 P2d 1222 (1972).
In Kneefe v. Sullivan, 2 Or App 152, 465 P2d 741, Sup Ct review denied (1970), we held that a work release enrollee who escaped while he was in physical custody in Multnomah County in connection with work release was still in the constructive custody of the Oregon State Correctional Institution in Marion County, and therefore could be tried on the escape charge either in Multnomah County or Marion County.
*7Actions taken by the Corrections Division in carrying ont work release programs, including termination of enrollment of inmates in a program of higher education, are exempt from provisions of the Administrative Procedures Act. Paola/Ryan v. Cupp, 11 Or App 43, 500 P2d 739, Sup Ct review denied (1972).
ORS 144.500(1) provides:
“If a person enrolled in the work release program violates any law, or any ride or specific condition applicable to him under ORS 144.450, the division may immediately terminate that person’s enrollment in the work release program and transfer him to a penal or correctional institution for the remainder of his sentence.”
I can find no statute which provides for judicial review of the action of the division terminating an inmate’s enrollment in the work release program for violation of “any rule or specific condition” applicable to the enrollee. However, assuming that under Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974), an enrollee such as petitioner is entitled to judicial review of such action as well as an administrative hearing, it would appear that such review would be in the circuit court in the first instance under habeas corpus, rather than in this court.
Stated differently, since the Corrections Division’s action was not a transfer to a different institution, or any other action listed in ORS 421.195, I believe the trial court was correct in taking jurisdiction of and reviewing petitioner’s third contention in a habeas corpus proceeding.
I would affirm the trial court on the third issue on the authority of Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968).
ORS 421.195 provides in part:
“If an order places an inmate in segregation or isolation status for more than seven days, institutionally transfers him for disciplinary reasons or provides for noncertification to the Governor of a deduction from the term of his sentence under paragraphs (a) and (b) of subsection (1) of ORS 421.120, the order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 30 days of the order for which review is sought. * * * ”