                           August5, 1971

Hon. James H. Cotten                   Opinion Ao. M-918
District Attorney
43rU Judicial District                 Re: Whether the Sheriff of
County Courthouse                          Parker County h&s the
Wea$h?riord, Texas 76096                   authority to release
                                           prisoners from custody
                                           prior to the expiration
                                           oi the sentences Imposed
                                           by the Court, whether
                                           mandsms will lie agrlnst
                                           the sheriff to force him
                                           to properly execute the
                                           sentences,and whether the
                                           sureties on the sheriff’s
                                           bond are liable for neces-
                                           sary expenses Incurred In
Dear Mr. Cotten:                           bringing a mandeanusaction.
     You have asked an opinion of this Office In connection with
the release of county jail prisoners prior to the expiration of
their sentences.
      The following facts were submitted by you. Two persons
pleaded guilty to the misdemeanor offense of possession  of tin-
gerous drugs and were sentenced to term of eighteen months
cpniinement  in the Parker County Jell on August 10, 1970, the
seqtences comen&g     on said date.
     On.8e fember 27, 1970, one of the prisoners was released
from jail 1y the Parker County Sheriff after serving one month
aqd seventsen days of the eighteen month sentence.
     0~ I)o~ember  21, 1970, the second prisoner was released
$tom cQniipeplent  by the sheriff after serving four months and
       Nyc; of f;he eighteen month sentence.
&levetiir
     You ask’li the sheriff “18 authorized to release prisoners
from jail” under the above facts, and you further ask that It
such release lr unauthorlsed,whether ‘a writ of mandamus out
of thq gls$rl$t court directing the sheriff to rearrest the
         .

                              -4473-
Hon. James M. Cotten, page 2     (M-918)


prisoners end incarceratethem for the remainder of their
sentence (would) be the proper procedure to follow".
     Finally, you request our view as to whether "the sheriff's
bondsmen would be liable for those necessary expenses incurred
by re-Imprisoning the defendants"if the release of the pris-
oners was Improper and mandamus would lie to compel the rein-
carceratlon of the two prisoners in question.
     The office of "sheriff" is provided for by Section 23,
Article 5 of the Texas Co;stltutlon,said Section stating, In
part, that the sheriff's . . . duties shall be prescribed
by the Legislature , . ,s .
     Duties of the sheriff set by the Legislature Include the
obligation to preserve the peace with his jurisdiction (Art.
2.13 and 2.17 C.C.P.), the supervisionof the County Court-
house (Art. 6872, V.C.S.), and the execution of legal process
and precepts (Art. 6873, V.C.S.). Pertinent to the instant
opinion request, is the responsibilityfor custody of prls-
oners as set out in Article 2.18, Code of Criminal Procedure,
which provides,
     "Art. 2.18.    Custody of Prisoners
          "When a prisoner is committed to jail by war-
     rant from a magistrate or court, he shall be placed
     in jail by the sheriff. It is a vioIat.ionof duty
     on the part of any sheriff to permit a defendant so
     committed to remain out of jail, except that he may,
     when a 'defendant1s committed for want of ball, or
     when he arrests in a bailable case, give the person
     arrested a reasonable time to procure ball; but he
     shall so guard the accused as to prevent escape."

     The sheriff's duties In safely keeping prisoners is fur-
ther defined In Article 5116, Vernon's Civil Statutes, which
provides in pertinent part,
     "Art. 5116.    Sheriff and jellor
          "Each sheriff is the keeper of the jail of his
     county. He shall safely 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.  . . .s

                               -4474-
Hon. James M. Cotten, page 3            W-918)


     Article 43.13, Code of Criminal Procedure,provides for
the release of a prisoner sentenced to jail ee follows:
     "Art.   43.13.   Discharge of defendent
          “A defendant who he8 remained In jell the
     length of time required by the judgment and sen-
     tence shell be dlscherged. The sheriff shell
     return the copy of the judgment end sentence, or
     the cepies under which the defendantwas lmprls-
     oned, to the proper court, stating how it was
     executed.”

     The only exception to service of the entire sentence has
been provided for by the Legislature in Article 5118a, Vernon’s
Civil Statutes. whIch.provides in pertinent part es follows:
     “Art. 5118 a.    Commutation for good conduct; forfeiture
                      of commutation; record
          “In order to encourage county jail dIsclpllne,
     a distinctionmay be made in the terms of prisoners
     so as to extend to ell such es are orderly, lndus-
     trious and obedient, comforts and privileges eccord-
     lng to their deserts; the reward to be bestowed on
     prisoners for good conduct shall consist of such
     relaxation of strict county jell rules, end exten-
     sions of social privileges es may be consistent with
     proper disclpllne. Cormmrtetlon  of time for good
     conduct, industry and obedience may be grented the
     inmetes of each county jail by the sheriff in cherge.
     A deduction In time not to exceed one third (l/3) of
     the original sentence may be mede from the term or
     terms of sentences when no charge of misconduct he8
     been sustained egainsf the prisoner.         No other
     time allowance or credits in addlt!on io'tie commuta-
     tion of time for good conduct herein provided for may
     be deducted from the tens or terms of sentences. The
     sheriff shell keep or ceuse to be kept a conduct Te-
     cord In card or ledger form end e calender card on
     each Inmate showing all forfeituresof commutetlon
     time and the reasons therefor.”
     Under the facts stated In your opinion request, It would
have been possible, If the circumstancesand requirements of


                               -4475-
Hon.   James M. Cotten,   page 4     (M-918)


Article 511&a had been met and complied with, for the prls-
oners involved to heve been releesed when 2/3 of the sentences
imposed had been served, or after 12 month Imprisonmentin
j&%11. Of course, to support this eerly releese, the eppro-
prlete records celled for by the commutationstatute would
heve necessarilybeen kept.
     However, in the cases you describe the release of the
prisoners was mede much before service of 2/3 o? the eighteen
month sentences, and no legal reason can be found to excuse
or justify such release.
     As was observed by the Court in Ex arte W att, 16 S.W. 301
(Ct.App. 1891) (In construing Article-!YhXEbe        or Criminal
Procedure In effect at such time, said Article 51 being a pred-
ecessor statute to the present Article 218, Code of Criminal
Procedure of 1965);
            "Our statute (Code CrIm. Proc. Art. 51) provides
       that, when e prisoner is committed to jail by lawful
       warrant from a magistrate or court, he shell be placed
       in jell by the sheriff; end it is a violation of duty
       on the part of any sheriff to permit a defendant so
       committed to remain out of jell, etc.        The
       sheriff has no right, no matter what his motives,
       whether of humanity or not, to cosssuteor alter this
       punishment, and any act of his doing so 18 a viole-
       tlon of his duty, end absolutely void."
     Accordingly,your first question Is answered in the efflrma-
tive, i.e., the Sheriff of Parker County had no authority to.re-
lease the prisoners on the detes you have Indicated.
     Turning next to the question of the procedure for rlghU.;g
the sheriff18 "violation of duty", the Court in Ex perte Wy
supre, described the Improperly released prlsloner es e "prls-'
oner et large, without authority; in other words, . . . an
esceped prisoner".
     Therefore, a sheriff mey, if he prematurely releases a
prisoner left In his custody, re-errest the prisoner and re-
confine the prisoner until the belance of the Imposed sentence
is served. See Article 15.29, C.C.P.
     Moreover, the sherlrr can be compelled to perform his duty
of making a re-arrest end re-confinement. The district courts


                                   -4416
Hon. James M. Cotten, page 5     (M-918)


or Texas "have the power to issue writs of . . . mandamus,
      and all writs necessary to enforce their jurisdiction".
A&le    5, Section 8, Constitutionor Texas.

     It Is possible, although there Is no authority directly
in point, that the convictingdistrict court still has juris-
diction over the two defendantsin this case so as to be em-
powered to Issue a writ “necessaxyto enforce its jurlsdlctlon,
i.e., the issuance of a caplas for the re-arrest of the defend-
ant and the issuance of a summary order to the sheriff to re-
tain the prisonersuntil the sentences are served".
      However, it Is clearer and more certain that the district
court has the jurisdictionto entertain an original mandsms
action filed by the county or dlstrlct attorney to compel the
sheriff to perform his posltlve and minlsterlal duty of exe-
cuting sentences Imposed according to the terms of the judg-
ment and sentence in question. Wortham v. Walker, 138 S.W.2d
1138,  1149, 1151 (Tex.Sup.1939); Terre11 v. Greene, 31 S.W.
631 (Tex.Sup. 1895); Republic Watlonal Sank of Dallas v. Rose,
254 S.W.2d 220 (Civ.App.1953, no wri~~~,T;y *ax relmVance v.
Clawson, No. 44043, -     S.W.2d             im 197T)
     Your second question Is therefore answered in the afflrma-
tive; a writ of mandamus will lie to direct the sheriff to re-
arrest and reincarceratethe two prisoners until their sentences
have been fully served.
     Your third question requests our view as to whether the
sureties are liable on the sheriff's bond for expenses Incurred
In bringing an action to compel the sheriff to properly execute
the two sentences imposed.
     Article 6866,   Vernon's Civil Statutes, provides In part:
          "Every person elected to the office of sheriff
     shall, before entering upon the duties of his ofrice,
     give a bond with two or more good and sufficient
     sureties, to be approved by the Comalssloners~Court
     or his county, for such sum as may be directed by
     such Court, not less than Five Thousand ($5,000.00)
     Dollars nor more than Thirty Thousand ($30,000.00)
     Dollars payable to the Governor and his sucessors In
     office, conditionedthat he will . . . faithfilly
     perform all such duties as may be required of him by
     Law.”




                               -4477-
Hon. James M. Cotten, page 6      (M-918)



     Our opinion, as previously noted, Is that the sherlrr has
committed a breach of his duties In releasing the two defend-
ants prior to the completion of their sentences.
        It therefore follows that the sureties on the bond are
subject to liability for the failure of the sherlrf to perform
his    duty if damages can be proved and suit may be brought a-
gainst the sheriff and his sureties In an Independent action.
Grimes    v. Bosque County 240 S.W.2d  511 (C1v.A p.1951 error
re!'.n.r.e.); Taylor v. 'McKenzie 49 S W 26 8 x Clv hpp 1932
no writ history); Branch v. Gwl&, 242’S:W.     4g2 [Civ:App: 1922:
no writ); Terre11 v. Greene, supra,

                        SUMMARY
          A sheriff has no authority to release prisoners
     In his custody prior to the expiration of sentences
     imposed; a sherifr may be compelled by mandamus to
     re-arrest prematurely released prisoners and confine
     such prisoners until their sentences have been fl-
     nally executed; the sureties on a sheriff's bond are
     subject to liablllty for expenses Incurred In brlng-
     ing a mandamus action to direct the sheriff to prop-
     erly execute the sentences of prisoners legally de-
     livered Into his custody.




                               &tAWiO       -Cc.MARTIN
                               Attorn       General of Texas
Prepared by Lenny F. Zwiener
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Charles Parrett
Fisher Tyler
Dunklln Sullivan
Sam Jones
                               -4470-
Hon. James M. Cotten, page 7     (M-918)


MEADEF. GRIFFIN
Stair Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITg .
First Assist&M




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