        OFFICE   OF THE ATTORNEY      GENERAL     OF TEXAS
                                                              /
                             AUSTIN




Mr. 0. J. S. Elllngson
General Manager
Texas Prison Syetem
Huu~svllle,  Texas

Dear Sir:




             Your lette~ec\~yd&emed                     to thle     orrice
reads   as follows:
                                                 es, 1938 to
                                                 Bureau of Re-
                                                self-explanatory:
                                                 dated November
                                                 nch Warrant to
                                                 eoember 17,
                                                 rrant to Hunts-


                         te in an Interview with the Claaslfl-
                         t on November 21, 195S ". . . that
                         ve day8 afber he was released  on
                        o Limestone County on 12-17-37 he
                      to the Department of Public Safety at
                             as a mechanlo for the Departxmnt
        0r Public sarety . . . that for two months of this
        time he was carried on the payroll   aa a mechanic at
        $75.00 per month . . . that during a part of this
        ten month8 period he lived with his wife and family
        at 1207 Viest 34th Street In Austin . . . that it
        was decided that it wa8 best for him to return to the
        Texas Prison System after the Arthur Huey chse had
Mr. 0. J. 5. Elllngson,   Page 2



     received    so muoh publlolty and that it was possible
     that he might return to work for the Department in
     the event that he was suooeseful    in obtaining  an
     early   rsleass  by olemenop.

            “‘Inasmuoh as this prisoner was in the oustody
     of the Sheriff    only five days of the period that
     elapsed between Deoember 17, 1937 and November 15,
     193S, he should be oredited ‘on his sentence during
     this period only fire days as we will have to oon-
     alder the rest of the tlae the same as ii he were
     an esoape as we do not know of any right that the
     Sheriff    or anyone else may have had to release this
     inmate to anyone exoept at the expiration     oi his
     term or through a reprieve,    parole or some bther
     form of 0lemBnoy.’

          “I would like    to know if   my ruling   as General
     Manager is legally    oorreot.
                                   Respeotfully,

                    (Signed)       0. J. S: Elllngson
                                   General Manager
     0JSE:wr

     P.S.    I also enolose full oopy of his olassltloatlon
     report which is attaohed hereto for any other informa&
     tion you may desire regarding his interview      with our
     Claesitloatlon   Department.”

          In the ease of Ex Parte Lowe, .‘94 Tex.      Grim. Rep.   307,
the Court or Criminal Appeals saldt

            “Vie know of no statute   in terns dlreotlng    the
      issuance ot the warrant in question,       but at oommon
      law and in practice,   a warrant issued from the
      benoh or court for the arrest of a party is denominated
      a *benoh warrant’ . Webster’s      Dlot . See also Cyo. of
      Law k Prao. Vol. 12, p. 343.       It is the writ used to
      oompel the attendancr    in oases ot oontempt committed
      out of oourt (Cyo. Vol.     40, p. 2163,)    It is also the
      writ used to bring a oonvlct      confined  in the penlten-
      tlary to trial   in another ease.      See Hernandez Y. State,
.   .




        xr.   0.   J. 9. RlllngsOn,   Page 3



               4 Texa8 Crlm. App. 425; Gaines Y, State, 63 S.W.
               Rep. 623; Warhlngton v. State, 1 Texas Grim. App.
               6471 Rx Parte Jones, 38 Texas Crlm. Rep. 142.”

                     While you de not state ior what purpose the benoh
        warrant wa8 168ued, we must presume that it was issued by a
        Court or Judge oorrmandlng the General Lanagsr or Warden o?
        the Texas Prlron System to deliver     the custody o? the named
        oonvlot    to the oifloer  named in the warrant end oommanding
        the o??loer    to bring said oonvlot before the issuing authority
        ?or the purpose stated in the warrant.       In obedlenoe to the
        warrant, the oonvlot was relearned rrom the penitentiary     by
        delivering    him to the Shorl?? o? Limestone County,

                    It is made to appear that said sherl??,      about iire
        days after ho obtained oustody o? the oonvlot,       released   him
        to the Department o? Pub110 Saietp o? the State o? Texas.
        By what authority   he was 80 released   is not shown.      But rrom
        the etatements made by the oonvlot to the penitentiary         o??l-
        olals aster his return to the penitentiary,       we lnier   it was
        et the request o? that Department; that the Department held
        no benoh warrant ?or the oonviot;     but desired   to um him as
        an Qnderoover    man” in the apprehension o? other orlmlnals.
        A representative   of the Department, ramlllar with all o? the
        iaots oonoernlng the release    of the oonvlot to the Department
        by the Sheriff,   has advised the writer that the convlot was
        released   to the Department wlthout the iomallty       o? legal
        prooess,    It is undisputed that the oonvlot had reoelved        no
        ions o? olexenoy iron the Governor whloh would exouae his ab-
        senoe irom the penitentiary.
                   What the convlot did and was permitted to do arter
        he was released by the Sherl?? to the Department up to the
        time he was returned to the     nltentlary     is stated in your
        letter  and in the Bureau o? r lasal?lcatlon~s     report on this
        oonvlot attaohed thereto.

                  In view o? all the faots and olroumstanoea    therein
        etated, it may be said that the oonvlot was an eecape tram
        the time he was released  by the sherl?? until he was received
        at the penitentiary,  a period o? nearly eleven months.

                      There are several kinds o? escape recognized   by our
        atatutea     and oourts.  Articlee  318, 31Sa,  319, 320, 321, 322
        Vernon’s     Penal Code, and cases there olted;   17 Tex. Jur. p. 57
.   .:   ,




             Mr. 0. J. 9. Elllngson,     Page 4


             et seq.   These statutes and authorities.  pertain more to orrl-
             oere, their duties and llabllltles    than to the subject or what
             oonetltut ea an eeoape.

                         An escape may be made in eeveral        different    ways.  The
             elements   of escape are stated in 10 R.C.L.        pp. 579,    580, as ?ol-
             lows :
                          WElsments of Esoape .-     Escape, prison breaking
                  and rescue have in oommon one purpose and that 1s
                  the regaining     by a person in the custody of the law
                  of his unrestrained      freedom.     They differ,    however,
                  in the method by whloh that freedom is attained.
                  The. escape may be defined to be the voluntary             de-
                  parture o? a person without force from the law?ul
                  custody of an o??lOer or from any place where he
                  le law?ully oonilned.         It is also the dellveranoe
                  of a prleoner     who is laniully     imprisoned before he
                  la entitled    to such dellveranoe      by law.     Escapee
                  are eometlmes olasslfled        as aotual and oonetruotlve,
                  negligent    and voluntary.      A oonstruotlve     escape
                  takes place when the prisoner obtains M)re liberty
                  than the law allows although he still           remain8 in
                  oonflnement.      Voluntary esoape has been defined by
                  etatuts to oonslst      in voluntarily     suiferlng,     permlt-
                  tlng or conniving at the escape of a prisoner from
                  custody or permitting       him to go at large by the
                  officer   having law?ul oustody of him.           It is not
                  neoessary that the officer        do this with the intent
                  to save the prisoner from trial         or the execution       of
                  a sentence,     and therefore    euoh intent le not one of
                  the elements oonstltuting        ths offense.      An escape
                  in law has two separate meanings.           The one involves
                  the aot of the prisoner,        the other the act of the
                  orrloer   having him in oustody~. When the prisoner
                  goes away from his place of law?ul oustody, the escape
                  is the act of the prisoner;         but when the prisoner        18
                  allowed to leave his place of con?lne.nent,            either
                  negligently     or voluntarily,     by the offloer     having
                  him in oustody,     the escape is the act of the otfloer.
                  In either event, whether a person under lawful arrest
                  and restrained     of hle liberty     evades suoh arrest and
                  restraint    through his own act or by sufferance            of the
                  offloer,    and goes at large before delivered          by due
                   oourae of law, an escape is committed.”
.-,   .




          Mr. 0. J, 3. Ellingeon,   Page 6



                        ir our opinion that the aonvlot Van Thurman,
                       It
          NO. 85961,  should be oonaldered  as on esoepe from the tie
          he was r&leased   by the Sheriff of Llmwtone County until he
          was received baok et the penitentiary.
                                               Yours very   truly

                                             ATTORNEYGDIERALOF



                                                      Bruoe W. Bryant
                                                            Assistant

          BWBIBBB



             APPROVECJCJN
                       24, 1939



             A**ORNE-Y
                     GENERALOF TmB
