The opinion
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
pe 2081
The Honorable W. J. Estelle, Jr., page 4 (H-451)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 2082