            TY~A'ITORNEY             GENERAL

                      OF     TEXAS




                                         June 14, 1939
Honorable O.J.S. RIlIngson
General Manager
Texas ~Prlson System
Huntsville, Texas
Dear Sir:            ODinion NO. 0-965
                     R;: Does Texas~Prlson System have the
                          right to deduct the cost of recap-
                          ture and return to prison from any
                          money the escaped prisoner may have
                          on deposit with the System?
       We are in receipt of your opinion request wherein you
ask us the following question:
      '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 of Rights, Section 21,
provides as follows:
       "No conviction shall work corruption of blood. or
    forfeiture of estate, and the estates of those who destroy
    'chelrown lives.shali descend or vest as In the case of
    natural death."
       Article 50 of the Revised Penal Code, 1925, provides as
follows:
       "When a convict 1s executed or ImprIsoned for life,
    there shall be no forfeiture of any kind to the State,
    nor shall any costs of the prosecution be collected from
    his estate."
       Article 51 of the Revised Penal Code of Texas, 1925,
provides as follows:
       "When a 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 person who has been convic-
ted of a crime and who is sentenced to the penitentiary Is de-
prived of his rights as a citizen as to his liberty, it.is
also true that under the Constitution and statutes of the
State of Texas he still is entitled to-his property rights as
they existed prior to the date of his convi~ctlon. The courts
have held that convicted felons may be sued and may dispose
of their property by will or deed, if otherwise possessed of
the statutory qualifications essential to testamentary
capacity. See: Avery v. Everett, 110 N.Y. 317, 18 N.E. Rep.
148; Davis et ux v. Laning, (Supreme Court of Texas), 19 S.W.
826 a

       Therefore, it is the opinion.of this Department and ycxl
are so advised that the Texas Prison System does nothave the
right to deduct the cost of recapture and return to'prison from
any moneythe escaped prisoner may have on deposit with the
System. Under the law, when a prisoner gets out of a prison
or any place in which he may be conflned, or from and out of
the authority in whose custody he Is and unlawfully regains his
liberty, thereby becoming freed from the authority and control
of the power entitled to restrain him it is our opinion that
same will not work a forfeiture of estate; but that rather, on
the other hand, it is the duty and the burden of the incarcer-
ating authorftg to hold such prisoner In Its custody and con-
trol and the law does not contemplate that he shall escape
therefrom. It Is our opinion, that should we hold to the con-
trary, it would in fact be taking the property of the prisoner
In question wtthout due process of law and would therefore be
violating the constitutional rights and privileges of said
convict.
       Trusting that this will satisfactorily answer the ques-
tion propounded by 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 Committee By s/RWF Chairman
