              TIE        A4m~~~~~G~~~~~~A
                             OF-TEXAS
                          AUSTIN.     -rExAs 787ll


                                November    18.    1974


The Honorable   W. .I. Estelle. Jr.               Opinion No.   H-   451
Director
Texas Department of Corrections                   Re:     Whether prison inmate is
Huntsville, Texas 77340                                   subject to discipline for
                                                          infraction committed while
Dear Mr.   Estelle:                                       on emergency    reprieve.

    You have requested    an opinion from us as to whether

        . . . an inmate of Texas Department     of Corrections
        is subject to disciplinary  action by The Department
        of Corrections   under its rules and regulations while
        he is on a Board of Pardons and Paroles      reprieve to
        a hospital,  some other institution,  or a funeral,  or
        is his conduct subject only to other authorities under
        other legal provisions?

    The Board has established      a procedure through which inmates of the
Texas Department of Corrections       may be granted permission     to leave
those facilities   to obtain medical care, and to attend to critical illness
or deaths within the inmate’s immediate       family. Board of Pardons and
Paroles,    Handbook on Parole and Executive Clemency in Texas at pp. 112-
114 (1970).    In your letter you speak of such procedures   as “reprieves.  I’

     There is no constitutional    nor statutory definition of reprieve.     Texas
cases have described it as a postponement         of the execution of the sentence
to a day certain.     Snodgrass v. State, 150 S. W. 162,      165 (Tex. Crim.App.
1912).    It has been said that it is the withdrawing of a sentence for an
interval of time, that it does not and cannot defeat the ultimate execution
of the judgment of the court, and that the period of a reprieve is not to
be counted upon service of the person’s       prison term nor credit given
therefor.     Ex parte Black, 59 S. W. 2d 828, 829 (Tex. Crim. App. 1933).        In
view of these authorities we believe that in cases other than capital,        a
reprieve     contemplates  temporary    freedom from custody or supervision.




                                       po 2079
The Honorable    W.   J. Estelle,   Jr.,    page 2   (H-451)




     Thus it is our opinion that an inmate on reprieve is removed from the
custody and supervision    of the Texas Department of Corrections,      and he
may receive no credit on his sentence during the period of the reprieve.
However,   this time may be commuted,     Handbook on Parole and Executive
Clemency in Texas at p. 104 (1970).     The reprieve  completely   suspends
the Department’s   authority over the inmate,   and thus the Department
has no basis on which to discipline him for conduct during the reprieve
period.   However,   he would of course be subject to prosecution    for criminal
acts committed during the period, and is subject to arrest and return to
prison should he fail to return upon expiration of the reprieve.       Ex parte
Brown, 220 S. W. 2d 154 (Tex. Grim. App. 1949).

     It is unclear from your opinion request if the situation about which you
have asked - that is, where an inmate is temporarily      beyond the immediate
facilities  of TDC for medical    treatment or to attend a funeral - is actually
a reprieve with the attendant. consequences     described above.   If the inmate
who is temporarily     beyond TDC facilities  is receiving credit on his sentence
for the time spent outside TDC facilities    and is within the custody and control
of TDC personnel,     then the inmate is not, in our opinion, on reprieve.

    We believe that TDC may exercise    its custody and~control over inmates
beyond the immediate  confines of the prison in certain instances,    and in
such instances the inmates may remain subject to disciplinary      action by
the TDC.

    Article 6166a.      V. T. C. S., states that inmates shall have humane treat-
ment.    Article    6166g,   V. T. C. S., provides that the Texas Board of
Corrections     together with the Director of TDC shall be responsible           for the
“proper care, treatment,         feeding,  clothing and rmnagement      of the prisoners
confined therein. ” Several cases have held that prison authorities            in fact
have an affirmative      duty to provide medical care for inmates.         See Camp-
bell v. Beto, 460 F. 2d 765 (5th Cir.       1972), Taylor  v. Sterrett,    344 F. Supp.
411 (N. D. Tex.. 1972), aff’d. in part, vacated in part, and remanded,             499
F. 2d 367 (5th Cir. 1974).

    In some instances,   it may be reasonable  and necessary   for the Depart-
ment to exercise  its custody and control over a prisoner   in need of proper
medical care by placing the inmate in a medical facility outside the prison
and making reasonable    provision or arrangements  for supervision   of the
inmate in that context.




                                           p. 2080
The Honorable    W.   J. Estelle,   Jr.,    page 3      (H-451)




     In our opinion, “humane treatment” certainly includes adequate
medical care, and arguably is broad enough to encompass           permitting
attendance at sick beds or funerals of immediate         family.  In such cases,
the inmate would remain a prisoner,        subject to all applicable rules and
regulations   of the Department,   and would be subject to disciplinary
action by the Department     even though not within the immediate      confines
of the prison.    However,   beyond provision of medical care, we believe
this is an appropriate   area for legislative    standards and guidelines.
+,     for example,  Article 6166x-3,    V. T. C.S.,   providing for work
furloughs.

     See also Letter Advisory      No. 12 (1973), in which this office advised
that Senate Bill 373 of the 63rd Legislature,       which would have allowed
TDC to grant temporary       furloughs to inmates for the purpose of obtaining
medical treatment or of attending to family emergencies         was not unconsti-
tutional since the temporary      furloughs were not reprieves,     commutations
of punishment,    pardons,    or paroles,   over which the Governor and the
Board of Pardons and Paroles have been given exclusive jurisdiction            by
the Constitution.    In Letter Advisory    No. 12 this office relied on the fact
that the Department would exercise proper security and custody precautions.

                                SUMMARY

             An inmate beyond the immediate    confines of the
        prison for special purposes not amounting to a reprieve
        remains a prisoner    subject to the Department’s   rules
        and regulations  and to its security and custody pre-
        cautions.

                                             Very    truly yours,




                                             Attorney     General   of Texas




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The   Honorable   W.   J. Estelle,   Jr.,    page 4     (H-451)




DAVID M. KENDALL,           Chairman
Opinion Committee




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