                      ihKxTr!cuX   BR. 7rEme




                      September 10, 1962

Honorable Ward W. Markley                Opinion No. WW-1436
County Attorney
Jasper, Texas                            Re:   Questions relative to the
                                               construction of Article
Dear Mr. Markley:                              511Ba, V.C.S.
     You have requested the opinion of the Attorney General con-
cerning the construction of Article 5118a, V.C.S., by asking the
following questions.
     1.   Can the Sheriff permit a prisoner to leave a jail
          to attend a Church service and then return to the
          jail without a guard?
     2.   Can the Sheriff permit a prisoner the privilege to
          go home at night and return the following morning?

     3.   Can the Sheriff permit a prisoner to go home and
          sit up with a sick member of his family and return
          the next day?
     4.   Can the Sheriff permit a prisoner to work upon
          County property without a guard?

     5.   Can the Sheriff permit a prisoner to drive his
          private automobile, sending him on errands with-
          out guard?
     6.   Can the Sheriff permit a prisoner who has been
          committed to jail to go to a store and buy ciga-
          rettes and return to the jail without a guard?
     Article 5118a, Vernon's Civil Statutes, provides in part
the following:
        "In order to encourage county jail discipline
    a distinction may be made in the term of prisoners
    so as to extend to all such as are orderly, indus-
    trious and obedient, comforts and privileges accord-
    ing to their deserts; the reward to be bestowed on
    prisoners for good conduct shall consist of such re-
    laxation of strict county jail rules, and extension
Honorable Ward W. Markley, page 2   (w-1436)
     of social privileges as may be consistent with proper
     discipline." (underscoring ours)
     Article 787, Vernon's Code Criminal Procedure,   provides
in part:
         "When a judgment has been rendered against a
     defendant for a pecuniary fine, if he is present,
     he shall be imprisoned in jail until discharged as
     provided by law . . . v
     Article 319, Vernon's Penal Code, provides:
         "Any officer, jailer, or guard having the legal
     custody of a ..^
                   person
                      .. accused
                             .   or convicted of a misde-
     meanor wno wilr~ullypermits sucn person to escape or
     to be rescued shall be fined not exceeding one thousand
     dollars."
     Article 42, Vernon's Code Criminal Procedure,    provides:
     "When a prisoner is committed to jail by warrant from
     a magistrate or court, he shall be placed in jail by
     the sheriff. It is a violation of duty on the part
     of any sheriff to permit a defendant so committed to
     remain out of jail, except that he may, when a defend-
     ant is committed for want of bail, or when he arrests
     in a bailable case, give the person arrested a reason-
     able time to procure bail; but, he shall so guard the
     accused as to prevent escape."
     Article 5116, Vernon's Civil Statutes, provides in part as
follows:
         "Each sheriff is the keeper of the jail of his
     county. He shall safety keep therein-all prisoners
     committed thereto by lawful authority, subject to
     the order of the proper court, and shall be respon-
     sible for the safe keeping of such prisoners."
     (Emphasis added)
     The courts have consistently held that prisoners must remain
in jail until they have been lawfully discharged. See Ex Parte
Wyatt, 16 S.W. 301, 29 Tex. App. 398 (18911, wherein the court
held:
         "It is manifest from these provisions of our
     law, that, whenever a party is committed to jail
     by order of the court, it means imprisonment in
     the jail; and no other kind of custody, whether
d      -




    Honorable Ward W. Markley, page 3    (WW-1436)
           agreed to by the sheriff or not, will answer or
           discharge such punishment. The sheriff has no
           right, no matter what his motives, whether of
           humanity or not, to commute or alter this punish-
           ment, and any act of his doing so is a violation
           of his duty, and absolutely void e e . . Until he
           has served the allotted time in jail, he has not
           complied with the judgment, nor has he discharged
           it; it cannot be otherwise discharged . . . . The
           agreement of the sheriff to permit him to go at
           large being absolutely void, the law for such time
           will treat him as a prisoner at large, without
           authority, in other words, as an escaped prisoner."
         In Dufek v. Harrison County 289 S.W. 741 (1926), the court
    held that it was the sheriff's d:ty to hold the prisoner in jail
    until he was lawfully ordered to discharge him, unless the pri-
    soner in the meantime furnished a bail bond as re uired by law.
    This court quoted Luckev v. State, 14 Tex. 400 (1855) which held:
               "The imprisonment, authorized by the Statute,
           is an actual imprisonment, within the four walls
           of the jail; and where the Sheriff permits a con-
           vict committed to his custody to go at large, he
           is liable for an escape."
         The Supreme Court of North Carolina in Sutton v. Williams,
    155 S.E. 160 (1930), held that the sheriff and jailor, by allowing
    a prisoner to drive an automobile on their errands or-for other -
    purposes, permitted an escape; and the fact that the prisoner was
    a trusty was no justification.
         "Escape" has been defined by the courts as that which takes
    place when the prisoner gets out of prison or any place in which
    he may be confined, or from and out of the authority in whose
    custody he is, and unlawfully regains his liberty, freed from the
    authoritv and control of the Dower entitled to restrain him.
    Carter vi State, 14 S.W. 350,.29 Tex. Ap   5 (1890); Safron-v.
    David McBurney and Son, 112 A. 675 (19217:

         The caption of H.B. 290, 54 Leg.R.S., 1955, Ch. 461, P. 1182,
    which is now Article 5118a, V.C.S., is worded in part thusly:
               "An Act to encourage discipline in county jails;
           authorizing a system of reward for good jailee con-
           duct; . . . It
         Based upon the above statutes and cases, it is the opinion of
    this office that the only interpretation of the quoted part of
    Article 5118a, V.C.S., that is consistent with a practical analy-
    sis of the statutes and existing cases cited herein is one that
Honorable Ward W. Markley, page 4   (~-1.436)
limits the relaxation of discipline set out in Article 5118a to
the internal affairs of a county jail. There is nothing in
Article 511&a, V.C.S., that indicates that the sheriff is author-
ized to let a prisoner out of jail prior to the expiration or
commutation of his sentence. Its only application is to prison-
ers within the four walls of the county jail and does not extend
outside of the county jail,
     Articles794, Vernon's Code Criminal Procedure, provides in
part:
        "Where the punishment assessed in a conviction
     for misdemeanor is confinement in jail for more than
     one day, or where in such conviction the punishment
     is assessed only at a pecuniary fine and the party
     so convicted is unable to pay the fine and costs ad-
     judged against him, those so convicted shall be re-
     quired to do manual labor in accordance with the pro-
     visions of this article under the following rules and
     regulations . . .
        "4. Those so convicted shall be so guarded while
     at work as to prevent escape.
        '15. They shall be put to labor upon the public
     roads, bridges or other public works of the county
     when their labor cannot be utilis:d in the county
     workhouse or county farm . e e o
     Article 5116, makes the sheriff the keeper of the jail
and provides that he shall safely keep "therein" all prisoners
committed thereto by lawful authority subject to the order of the
proper court. Article 5118a merely allows the sheriff to relax
discipline within the jail under the conditions set out therein.
Article 794 allows prisoners to be used as manual labor on certain
public works only when properly guarded. This is the only ex$ep-
tion allowing a prisoner to perform work outside the jail.
therefore hold in answer to your questions that, unless guarded,
prisoners must remain within the jail at all times, unless a court
order permits otherwise. Ex Parte Monevhun, 274 S.W.2d 546 (Tex.
Crim. 1955); Ex Parte Griffin, 258 S.W.2d 324 (Tex. Crim. 1953);
Ex Parte Morgan, 262 S.W.2d 728 (Tex. Crim. 1953).
                       SUMMARY
     Unless guarded, prisoners must remain within the
   jail at all times, unless a court order permits
   otherwise. Article 5118a, V.C.S., merely allows
   the sheriff to relax discipline within the jail
Honorable Ward W, Markley, page 5   (W-1436)
   under the conditions set out therein.
                           Yours very truly,
                           WILL WILSON
                           Attorney General of Texas



                           BY
                                Charles R. Lined
                                Assistant Attorney General
CRLzsm
APPROVED;
OPINION COMMITTEE:
W. V. Geppert, Chairman
Elmer McVey
Dudley McCalla
Sam Wilson
Frank Booth
REVIEWED FOR THE ATTORNEP GENERAL
BY: Leonard Passmore
