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Section 38.07 addresses two different actors: the correctional official who lets someone go, and the outsider who helps certain people in custody get away.

What the Statute Says

(a) An official or employee of a correctional facility commits an offense if he knowingly permits or facilitates the escape of a person in custody.

(b) A person commits an offense if he knowingly causes or facilitates the escape of one who is in custody pursuant to: (1) an allegation or adjudication of delinquency; or (2) involuntary commitment for mental illness under Subtitle C, Title 7, Health and Safety Code, or for chemical dependency under Chapter 462, Health and Safety Code.

Penalties

CircumstanceOffense level
General offenseClass A Misdemeanor
Person in custody was under arrest for, charged with, or convicted of a felony; or confined in a correctional facility other than a secure facility after a felony convictionThird-Degree Felony
Circumstances involving a deadly weapon used or threatened, or confinement in a secure correctional facility after a felony convictionSecond-Degree Felony

The Knowledge Element

Both subsections require knowing conduct. This is the heart of most defenses, particularly for jail and juvenile facility staff:

  • An unsecured door, a miscounted roster, or a failure to follow procedure is negligence, not knowledge.
  • Understaffing and competing demands routinely produce lapses that look deliberate only in hindsight.
  • Internal policy violations are frequently offered as proof of knowledge; they are not the same thing.

For subsection (b) — the outsider theory — the State must prove the accused knew the person was in custody under one of the two specified categories. Giving a ride to a friend, without knowing they had walked away from a commitment or a juvenile placement, does not satisfy the statute.

Related Offenses

Prosecutors often charge this section alongside hindering apprehension or prosecution (Section 38.05) and tampering with evidence. For correctional employees there is also a realistic prospect of a parallel federal investigation and an employment proceeding — counsel should be involved before any internal statement is given.

Related

Charged in Harris County?

Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.

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Frequently Asked Questions


What is permitting or facilitating escape?
Under Section 38.07, an official or employee of a correctional facility commits an offense if he knowingly permits or facilitates the escape of a person in custody. A separate subsection applies to any person who knowingly causes or facilitates the escape of someone in custody under a delinquency allegation or an involuntary mental health or chemical dependency commitment.
What is the penalty?
The offense is generally a Class A misdemeanor. It is a third-degree felony if the person in custody was under arrest for, charged with, or convicted of a felony, or was confined in certain facilities after a felony conviction. It rises to a second-degree felony in circumstances involving the use or threat of a deadly weapon.
Does it require knowledge?
Yes. The statute requires that the official or person act knowingly. Negligence — a door left unsecured, a headcount error, a procedural lapse — is not the same as knowingly permitting an escape.
Who counts as an official or employee of a correctional facility?
The terms are defined broadly and reach jail and prison staff, contractors performing correctional functions, and employees of juvenile facilities. 'Correctional facility' is defined in Section 1.07.
Is this the same as escape?
No. Escape by the person in custody is a separate offense under Section 38.06. Section 38.07 targets the official who permits it or the outsider who facilitates it.

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