                       Janu@py 11,   1951

Hon. Larry 0. 00x
Hxecutlve Mreator
Board for Texae Stat@
  Hospitals and Spoolal Schools
Austin, Texas                     opfalon Ho. v-1141.
                                  Rw Lqgaity    0r admlt-
                                      tlng   en brbltuel
                                      clmnkardtoa    State
                                      hospital under a
                                      aarltamt    made by
Dea~rSirs                             l o o wlty judge,



            *Recently sevmal oamnltm6nts  oi babi-
     tual drunkard8 have been made by county
       udges to Stat& bospltnls ?or the Insaner
     dme of the oomitmentm hnve been by jury
     trial, aa set out in Title 92 oS Vernon88
     Civil statutes.    Other oomltmantrr have been
     for a period 9f ninety (90) aay6 a6 set out
     3ii*rtlol*   319304 of VOmIc0”8 CfVil stat-
              The judgments 1~ each of the cam8 ad-
     jud&d the person to be an ‘babltual drunk-
     ard’ Instead 0r a Vp~roa or ua800116.mind.’
     Hovevec, the j      at oFaerse the person
     conmitteQ to a TS ate hospital.
          “It is our intsrpmtatfon  that a per-
     BOLIwould have to be adjudged wntnlly ill
     to be ooamlttad tmdep Aptiole >lg>o-1, or
     vould hfive to be deckFed * pewon of ua-
     sound mind under Title 92.
          “It ie evidently the IntrzQPetatlolaof
     nome county Judy    that the a?oramentioasd
     gaFgsd        a lov a complitment OS an babl-
                  0
           ‘Plume 8dviss whether  0~0not an babl-
     tual drunkerd can ti lsgallg cmmittsd under
     tha provlslo~  of eLtheP Article 31930~1 or"
     Title 92,.
Hon. Larry 0. Cox, page 2    (V-1141)


           With respect to the commitment to the insane
asylums operated by this State of persons adjudged under
the provisions  of Title 92, VarnonDs Civil Statutes,  Arti-
cles 5554 and 5557, V.C.S., provide in part:
           Art. 5554. “Upcn Peturn of a verdict
     finding that the defendant ie of unsound
     mind and that It is necessary that
     med     under restraint, judgment shall be
     entered adjudging the defendant to be a
     person of unsound mind and order-
     to be comltt d for restpaint and treat-
     ment to any &ane   ar)ylum operated by the
     State of Texas in which them may be avail-
     able. room, a e .”

          Art. 5557. %nmedI.atelyafter any
     person Is adjudged a person of unsound
     mind, the county judge shall caumunicate
     8%   the supelrlntendentsof the Insane
     asylums within this State, and if it Is
     ascertained   that there fs a vacancy in
     any of such asylums, or that the patient
     may be accommodated.,thereln,  he shall is-
     sue his warrant to the sheriff    or to some
     other suitable person dSrecting him to
     convey the pepson of unsound mind to the
     asylum deslgnated in such warpant, _I a *”
     (Emphasfs added throughout m)
           Under Article  5552, V.C.S,, before one charged
with being of unsound mind can legally be committed indef-
initely  to a State hospital,  there must be a jury ver-
dict not only that he :$.sof unsound mind but that his
mental condftlon is such as to render it necessary that
he be placed under restPaint,    Hatton v, State Board of
Control,  146 Tex. 160, 204 SbW02d 390 (1947),
          With respect to mentally~lll   persons ,ndjuclge,ed
and consuLtted under the provisions  of Article  3X.930-1.,
v.c.s*, it Is ploovlded
           “Section 1.   (a)   If information    in
     writing and under oath be gLven to any Coun-
     ty Judge that any pepson in Ns county who
     is not chalaeed with a c~lmlnal    offense.    is
     beli&nd    to-be mentallv il.& and that the
     welfare of himself and/or others requires
     that he be placed in a State hospital       for
     the mentally ill for not exceeding ninety
,Hon. Larry 0. Cox, page 3     (Q-1141)


      (90) days for observation      and/or treatment,
     and such County Judge shall believe such
      InformatIon to be true, he shall Sorthwlth
             fix a day and place for the hearing
     ini determining af the matter, . * . and
      shall give notice to such person of the time
     and place of such war             IS, upon the hear-
      ing of such matter, two 5) reputable physi-
      cians authorized by law to prnctlce medicine
     in the State OS Texas, neither of whom is on
      the staff of any Texas ‘State Hospital,       and
      each of whom has examkned the nerson alleRed
      to be mentally ill withln the preceding five
       5) days of said hearing, shall swear that in
      each of their prof'esslonal     opinions such per-
      son is mentally 11 , is neither feebleminded,
     an idiot.    an lmbec e. nor an eVileDtiC . and
      that in his opinion such ‘person- should be
      temporarily   committed for observation      and/or
      treatment to some .State hospital      authorized
     by law to care for and’ treat mentally ill per-
     .SOllS, and IS thereupon the County Court finds
     m      such person should Abe temporarily      commit-
      ted to a State hospital     for observation    and/or
      treatment, he shall so state in his order of
      connaitment which shall be entered upon the
     minutes of said Court and a writ of coxmnit-
     ment issued thereupon commltti          said person
      temporarily   for observation    nnd7 or treatment
      to acme State hospital authorized by law to
      care for and treat mentally ill persons -”
           It was held In Ex parte Giannatti,     189 S.W.2d
191 (Tex.Civ.App.   1945) that under Article    I, Section 15
of the Constitution   of Texas and Artfcle .31930-l, V.C.S.,
a county court has general jurisdfctfon     to commit persons
who are mentall~lll    to State hospitals   for a period of
not exceeding ninety days without first     allowing a ury
trial.   See Att ‘y Gen. bps. O-4411 (1942)) v-86 (19 7).
           Article 4102, V.C,S., relates to the appointment
of a guardian for *persons of unsound mind and habitual
drunkards o” Subsections   3 and 4 of Article    4104, V.C.S.,
define for purposes of guardianship:     (1) persons of un-
sound mind as ‘Idiots,   lunatics and insane persons,” and
12) habitual drunkard as “one whose mind has become so im-
paired by the use of Intoxicating    liquors OP drug6 that he
is incapable of taking care of himself “‘It Thus, Article
4104 does not classify   persons who may be habitual drunir-
ards with persons defined to be of unsound mind. HOP do
Hon. Larry 0. Cox, page 4   (Q-1141)


other legal definitions  oi 'habitual drunkarda Impute
mental illness or insanity.    19 Uorde and Phrases (Perm.
Nlog1940) 29; 2 Bouvler's Law Dictionary (8th Ed. 1914)
       The lav entertainsn dfstinctlonbetween a person
'of &sound mind" and one who is an "habitual drunkard."
See also Arts. 41214123, 4267 et seq., V.C.S.; Greenwood
v. Purr, 251 S.W. 332 (Tox.C;V.APP.   1923).
           We find no intendment,erpressed or implied, in
the laws governing our State hospitals for the mentally
Ill or in those laws governingthe commitment of persons
to such ~nstltutlona,that such hospitals are to be used
as sanatoriums for persons designated or adjudged as hablt-
Ual drunkards. It may be that 4 the medical or other
fields of sclenoe an habitual drunkard is regarded as a
person who is mentally ill or oS unsound mind. But the
latisherein cited authorize the commitment to our State
hospitals for the mentally ill oS only those persons le-
pl$y adjudged or Sound to be of unsound mind or mentally
      Arts. 5554 and                  They do not authorize
the'commltment                             persons adjudged
or Sound to be
          We do not menn to Infer herein that an habitual
drunkard cannot be adjudged to be a person of unsound mind
and Indefinitelycommlttedas n person of unsound mind to
a State asylum, nor that an habitual drunkard cannot be
fmnd to be n person Vho Is mentally ill and temporarily
commltted,as a person adjudged mentally Ill, to a State
asylum for observation or cnre for his mental illness.
But it does not follow, merely because some habitual
drunkards may properly be determined or adjudged to be
persons of unsound mind OF persons mentally ill, that all
habitual drunkards are, In legal contemplation,unsound
of mind or mentally ill,


          A person adjudged OF found to be an
     habitual drunkard cannot legally be com-
     mitted under such finding or adjudication,
     temporarily OP otherniae, to the State hos-
     pitals and ns lums authorized to care SOP
     and treat meneally 111 pex!sons.
APPROVED2     .                    Yours v&y truly,
J. C. Davis Jr.                      PRICE WRIEL
County Affairs Mviqion             Attorney General
Jesse P, Luton, Jr.
Assistant
