The opinion
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
p. 1225
. .
. .
*
The Honorable W. J., Estelle, page 7 (H-261)
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DAVID M. I IU3ND.---, -..-a- .*.s..
Opinion Committee
p. 1226