The opinion
CORNELIUS, Judge,
dissenting.
I respectfully dissent from the majority opinion in this case. Relying upon the separation of powers provision in Article II, section 2 of the Constitution of Tennessee, I would hold that a trial judge has no authority to proscribe work release eligibility for individuals subject to confinement in a county jail or workhouse.
The majority summarily states, “Obviously work release is a form of probation.... ” I fail to recognize the “obvious” similarities in the two concepts, however. The work release program is a tool of the Executive Branch administered by employees of nonjudicial agencies of the state government. See, e.g., T.C.A. §§ 41-2-134 and 41-2-135. 1 As such, I believe Article II, section 2 of our Constitution prohibits judicial interference in the decisions of those bodies. Having assured itself that the constitutional rights of the prisoner have been safeguarded, the trial court constitutionally should not undertake to set guidelines governing the confinement of an inmate in a correctional institution, or any other agency of the Executive Branch.
Any attempt by the legislature to delegate such authority is repugnant to constitutional ideals and will lead to mass confusion between the courts and the correctional institution. The judiciary has no more power to order or prohibit participation in a work release program than it has to direct the activities of the governor in the exercise of the pardon and commutation powers. 2
I would declare a judicial determination under T.C.A. § 40-35-302(d) to be an unconstitutional exercise of power and would, therefore, modify the judgment in this ease to excise any reference to restraints on the appellant’s participation in a work release program.
. See T.C.A. § 41-21-510 for work release programs for inmates subject to confinement in the State Penitentiary.
. The legislature created “Work release” and it may abolish, alter, or restrict its utility; provided it does not violate a constitutional mandate such as the separation of powers clause.