                                     March    18, 1974



The     Honorable  W. J. Estelle,   Jr.                    Opinion   No.   H-    261
Director
Texas Department     of Corrections                        Re:       Authority   of Depart-
Huntsville,   Texas 77340                                  ment of Corrections         to
                                                           transport      prisoners   to
                                                           legislative     hearing   and
                                                           liability    for criminal    acts
Dear   Mr.~ Estelle:                                       by inmate

       Your Department   has been asked to transport    twelve inmates  to
Austin for the purpose  of appearing  before  the Joint Committee    on
Prison   Reform.   YOU have declined  to comply with this request and
have asked for our opinion on two questions:

               1. Under what authority        can the Texas Department
               of Corrections     transport    inmates   to Austin for the
               purpose    of appearing    before   the Joint Committee    on
               Prison   Reform?

               2. What is’the   liability of the Board         of Corrections
               and its agents in the event an inmate           commits     a
               criminal  act under such conditions’?

        Your inquiry      raises    the issues of the committee’s       authority  to
request    your   co-operation       in bringing prisoners   to testify,   and of your
obligation    to comply     with   such a request,    even if authority    to’s0 trans-
port prisoners      exists.

        The Joint Committee    on Prison    Reform   was set up to “study needed
reforms    in the Texas system of imprisonment        of convicted   persons with
the purpose    of seeking  meaningful  alternatives    for the present anti-social
aspects   of the system   which are not conduc;ive to the rehabilitation     of
inmates   and their return to society    as productive,    useful,  and law-abiding




                                             p.   1220
The Honorable         W. J.   Estelle,   Jr.,        page    2    (H-261)




citizens.      . . . ” Senate     Concurrent         Resolution     No.     87, Acts   1973,63rd
Leg.,       Regular   Session,    p. 2277.

       Obtaining       the testimony    of current prisoners in the Department
of Corrections        is clearly  within the scope of the study which the Commit-
tee has been authorized           to under,take.

        There  is no question  that the Joint Committee    has authority                     under
Article   616622, V. T. C. S., to visit the Department    of Corrections                      and
to take the testimony   of inmates.    That article provides:

                          “The Governor,     and all other members      of the
                 Executive    and Judicial    Departments    of the State and
                 members      of the Legislature    shall be admitted    into
                 the prisons,     camps and other places where prisoners
                 are kept or worked,       at all proper hours,    for the pur-
                 pose of observing     the conduct thereof,     and may hold
                 conversation     with the convicts    apart from all prison
                 officers.     Other persons     may vidit the penitentiary
                 under such rules and regulations         as may be established.               ”

       A special   committee    such as the Joint Committee      on Prison   Reform
haa the same authority      as is granted   to a standing committee     by the Legis-
lative Reorganization    Act of 1961. Section      7, Art. 5429f, V. T. C.S. Section
18 of that Act provides    in pertinent   part as follows:

                          “Sec.   18. Each standing committee          is hereby
                  authorized     and empowered     to request    the assistance,
                  where needed in the discharge         of its duties,    of the
                  State Auditor’s     Department,    the Texas     Legislative
                  Council,    the Texas Department       of Public Safety,      the
                  Attorney    General’s    Department,     and all other State
                  agencies,     departments,    and offices,    and it shall be
                  the duty of such departments,        agencies    and offices    to
                  assist   each such Committee       when requested       to so
                  do, . . . ”




                                                p,    1221
The Honorable      W. J.   Estelle,   Jr.,     page    3   (H-261)




       It does   not appear    that the Joint: Commi,ttee            on Prison   Reform   is
authorized   to compel the attendance            of witnesses.     Express     authoriza-
tion by the resolution       establishing     the commitlee      or by the rules of
procedure    of the House establishing           the committee      is a prerequisite
to the exercise     of subpoena powers          by a standing or special       committee.
Section 12, Article      5429f, V. T. C. S. ; Attorney         General    Opinion No. WW-
1235 (1962).    Such specific       authorization    is not contained      in the Joint
Committee’s      resolution,      S. C. R, no. 87, Acts 1973, p. 2277.             While
the House Rules authorize           House standing committees           to issue process,
5 40, Rule 8, Rules of the House of Representatives,                1973, neither     the
Senate Rules nor the Joint Rules contain such authorization.                    Authori-
zation to issue process        by only one House is not sufficient           for a joint
committee.

        Thus, in carrying      out its responsibilities,        the Joint Committee
on Prison    Reform    has authority      to take the testimony       of prisoners    with-
in the confines    of the Department         of Corrections,     and in other locations
it may receive     the voluntary     testimony     of witnesses     and may request       the
assistance    of the agencies,     departments,        and offices    of this State.Since
the Committee      is without the power to issue process             for witnesses     to
appear,    the question   of whether      the Committee      might compel      the attend-
ance of prisoners     at its hearings       in Austin is not presented       here.

        The Texas Board of Corrections        is        responsible    through its agent,
the Director    of the Texas Department      of        Corrections,     “for the manage-
ment of the affairs     of the Prison  System          and for the proper     care,  treat-
ment, feeding,     clothing   and management            of the prisoners    confined  therein.   ”
Article   6166g. V, T. C. S.

        The only specific      statutory  authorization     regarding   transportation
of prisoners     pertains   to bringing   them to the prison.        The director    is to
make provision       for transportation     of prisoners    by arrangement      with the
sheriff   of the county where the prisoner         is held, if the sheriff    is willing
to provide     such service    more economically        than the director    could do it
otherwise.      Article   6166r, V. T. C. S.     This language clearly      implies    the
authority    to transport    prisoners   to the prison if that alternative       is most
economical.




                                             p” 1222
The Honorable      W. J.   Estelle,   Jr.,        page   4   (H-261)




       Of course there are several    ways in which prisoners       may be
taken outside the prison for temporary     periods.     They may be attached
to appear and testify  in any court in this state, Art.     24. 13,V.T.CCP.,
and may be compelled     toappear for trial upon a bench warrant,        which
is the writ used to bring a confined   convict  to trial in another    case.
Ex parte Lowe,      251 S. W. 506 (Tex. Crim.App.          1923). And the Board
of Pardons    and Paroles     apparently    has authority   to have prisoners
appear before     it for interviews     prior to a decision    on parole   by virtue
of $ 15, Art.   42.12, V. T. C.C.P.,       although we understand      that in prac-
tice such interviews     are conducted      at the prison.

       You also have authority   to transport  prisoners to a college campus
for work under Art.    6166x-2,  V. T. C.S.,  and to work under the work
furlough  program   of Art.  6166x-3,  V. T. C. S.

         While there is no specific       statutory    authorization    for you to trans-
port prisoners       to the site of a Legislative       Committee     hearing,    we
believe     that the statutory     duty imposed     on State departments       to assist
legislative     committees     under ! 18, Art.      5429f, V. T. C. S., combined
with your general        authority   for the managemeti        of prisoners,    Art. 6166g,
V.T.C.S..        is sufficient   to authorize   the transportation      of prisoners     to
such a hearing.

       However,     even though your department           has a general    obligation
to assist  the Committee       upon its request,     the extent to which you are
able to comply will depend upon a number of factors.                 Determinations
must be made as to what resources           are available      to provide   the assist-
ance requested,     and how it can be provided         in a manner consistent        with
your  principle   responsibility    of maintaining      control   of prisoners    in your
custody.     These matters      are at least initially     within your discretion.

         Prison   officials    are vested with broad discretion       in safekeeping
and securing      prisoners      committed    to their custody,   and courts tradi-
tionally    have been reluctant      to interfere    with their decisions    on appro-
priate methods        of handling   their wards unless paramount         constitutional
or statutory     rights are at stake.       Cruz v. Beto, 405 U.S. 319 (1972);
Johnson v. Avery,           393 U.S. 483 (1969): Milligan      v. State,  178 S. W. 2d




                                             p.    1223
The Honorable       W. J.   Estelle,    Jr.,    page   5     (H-261)




524 (Tex. Crim.    1944); Wilmans
                          ----.      v. Harstol,    234 S. W. 233 (Tex. Civ.
App. Dallas,    1921, no writ).   Even where such rights are involved,       the
cases recognize    the need to deal with them in relation     to the demands
for prison security   and orderly   administration.

         In this situation,    the Legislative         Committee      has a valid interest
in obtaining     the testimony     of prisoners        in order to carry out its duties.
You have a duty to maintain           control    of prisoners       committed     to your
custody by the judiciary.          The Commit.tee’s          desire    to take testimony
of prisoners      outside the prison requires            your cooperation      and assistance.
Rendering      such assistance      involves     problems      of control    beyond the nor-
mally available       physical   security     facilities    of the prison.      Your obliga-
tion to assist the Committee           cannot exceed your duty of proper               manage-
 ment of prisoners.         In a situation     involving     such possibly     conflicting
 interests    between two branches         of government,         the Texas Supreme        Court
has said:

                        “Coordination   or co-operation    of two or more
                branches    or departments    of government     in the solution
                of certain   problems   is both the usual and expected
                thing. ‘I Stat.e Board of Insurance     V. Betts,   308 S. W.
                2d 846, 852 (Tex.     1958).

        To directly  answer  your   first question, the Texas Department    of
Corrections    can transport  an Inmate to Austin for the purpose of appearing
before the Joint Committee      o,n Prison   Reform  under the authority of Art.
5429f. $18, above,   but i,n doing so should               adopt, all   reasonable   means   to
provide effective  control  of such prisoner.

       As to your second question,            the State is not ordinarily          liable for
the torts or negligence        of officers,     agents,    or servants     engaged in the
performance        of a governmental       function,    unless it has expressly           assumed
that liability.      Tex. Jur. Ld, p. 293 (1963).         Members       of the   Department
cannot be held personally         liable for injuries       negligently    inflicted     by a
prisoner     without a showing that they were,            in their personal        rrlatioR
guilty df misfeasance        or malleasance        or co-operated       in some way with
the prisoner      in his tortious    al: L. Texas
                                             --      Prison     Board    v. Cabeen.        159
S. W. 2d 523 (Tex. Civ. App. Beaumont,                194L, writ ref’d).




                                               po 1224’
.


    The Honorable       W. J.   Estelle,   Jr.,        page    6   (H-261)




              It is doubtful that the Texas Tort Claims             Act would be applicable
     to any fo,reseeable       circumstances        in view of the exceptions       contained
     in 5 14 of the Act which except from the application                 of the Act claims
     arising     out of failure    to provide,     or the method of providing        police
     protection,      and claims     arising   out of assault,     battery,    false imprison-
     ment or any other intentional           tort.    Subsections     t4(9) and 14(10), Art.
     6252-19, V. T. C. S. See Davis v. County of Lubbock,                     486 S. W. 2d 109
     (Tex. Civ.App.       Amarillo,       1972, no writ) (custody of prisoner          in county
     jail a police function),        and Beggs v. Texas Department              of Mental Health
     and Mental Retardation,           496 S. W. 2d 252 (Tex. Civ.App.            San Antonio,
      1973, writ ref’d).(mentalpatient          doused another with lighter fluid and
    .ignited,     not within Tort Claims Act waiver            of immunity).

           Your liability,    if any, for criminal        acts of a prisoner    under cir-
    cumstances     involving    a legislative    hearing    would probably    be the same
    as you face when transporting           prisoners    to a college  campus for work
    under Art.    6166x-2,    V. T. C. S., or to work under the work furlough
    program    of Art.    6166x-3,    V. T. C. S., or on any other authorized         acti-
    vity which requires      prisoners      to go beyond the immediate       confines   of
    the pcnetentiary.

           However,     the question of liability   of the State or the pereonal lia-
    bility of its agents for negligence    involving    prisoners  will depend upon
    the particular   facts and circumstances       of each case.

                                                  SUMMARY

                           The Department    of Corrections               has authority
                   to transport   prisoners  to a Legislative               Committee
                   hearing   in Austin at the Committee’s                 request.

                                                   Yours       very   truly,




                                                   Attorney        General     of Texas




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                  The Honorable W. J., Estelle,     page 7      (H-261)




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                  DAVID M. I  IU3ND.---,   -..-a- .*.s..
                  Opinion Committee




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