We are in receipt of your opinion request wherein you us the following question: ask

'Does Texas Prison System have the right to deduct the cost of recapture ,and return to prison from ang money the ~'escaped prisoner may have on deposit with the System?"

In this regard~youmay be advised that the Constitution of the State of Texas, Article 1, Bill of Rights, Section 21, provides as follows:

"No conviction shall work corruption of blood. or forfeiture of estate, and the estates of those who destroy 'chelr own lives. shali descend or vest as In the case of natural death." 1925, provides as

Article 50 of the Revised Penal Code, follows:

"When a convict 1s executed or ImprIsoned for life, there shall be no forfeiture of any kind to the State, nor shall any costs of the prosecution be collected from his estate."

Article 51 of the Revised Penal Code of Texas, 1925, provides as follows:

"When a convict Is Imprisoned in the penitentiary, his property shall be controlled as directed by law; but there shall In no criminal case be a forfeiture of any kfnd to the State."

Honorable O.J.S. Elllngson, June 14, 1939, page 2 o-965

Although it Is true that a person who has been convic- ted of a crime and who is sentenced to the penitentiary Is de- prived of his rights as a citizen as to his liberty, it. is also true that under the Constitution and statutes of the State of Texas he still is entitled to-his property rights as they existed prior to the date of his convi~ctlon. The courts have held that convicted felons may be sued and may dispose of their property by will or deed, if otherwise possessed of the statutory qualifications essential to testamentary capacity. See: Avery v. Everett, 110 N.Y. 317, 18 N.E. Rep. 148; Davis et ux v. Laning, (Supreme Court of Texas), 19 S.W. 826 a

Therefore, it is the opinion. of this Department and ycxl are so advised that the Texas Prison System does nothave the right to deduct the cost of recapture and return to'prison from any moneythe escaped prisoner may have on deposit with the System. Under the law, when a prisoner gets out of a prison or any place in which he may be conflned, or from and out of the authority in whose custody he Is and unlawfully regains his liberty, thereby becoming freed from the authority and control of the power entitled to restrain him it is our opinion that same will not work a forfeiture of estate; but that rather, on the other hand, it is the duty and the burden of the incarcer- ating authorftg to hold such prisoner In Its custody and con- trol and the law does not contemplate that he shall escape therefrom. It Is our opinion, that should we hold to the con- trary, it would in fact be taking the property of the prisoner In question wtthout due process of law and would therefore be violating the constitutional rights and privileges of said convict.

Trusting that this will satisfactorily answer the ques- tion propounded by you, we remain

Yours truly ATTORNEY GENERAL OF TEXAS By s/Edgar Gale Edgar Gale Assistant EC:AMW:wc

APPROVED JUR 17, 1939

s/Gerald C. Mann

ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/RWF Chairman