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
| Circumstance | Offense level |
|---|---|
| General offense | Class 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 conviction | Third-Degree Felony |
| Circumstances involving a deadly weapon used or threatened, or confinement in a secure correctional facility after a felony conviction | Second-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
- Official oppression (39.03)
- Section 9.53 — maintaining security in a correctional facility
- Harris County Jail — 700 N. San Jacinto
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.