       T




Hon. Larry 0. Cox
Executive Director
Board for Texas State Hospitals
  and Special Schools
Austin, Texas            Opinion No,   V-1454

                        Re:   Legality of accepting
                              day students at Austin
                              State School who have
                              not been committed by
Dear Sir:                     a county co~urt.
          Your request for an opinion reads in part
as follows:
         "We desire the opinion of yo'urof-
    fice regarding the legality of accepting,
    educating, and instructing feeble-minded
    day students at the Austin State School,
    without having them committed by a co.unty
    court.
         "The Board for Texas State Hospitals
    and Special Schools at a special meeting on
    February 25, 1952, approved a plan to edu-
    cate such feeble-minded day students, sub-
    ject to a favorable opinion from your de-
    partment.
         "The day st,udentswo,uldcome within
    the definition of feeble-minded children
    as defined In Article 3233 (V.C.S,), but
    they would not be committed and wouqd re-
    turn to their homes each day after classes.
    They wo,uldattend the same classes as the
    committed cases.
         "The Board has some doubt as to Its
    legal power,or authority to train s~uchstu-
    dents without commitment, and your opinion
    is necessary on account of the conflict;-
    ing views of the Board Members. D e a
                                                         -.-




Hon. Larry 0. Cox, page 2     (V-1454)


          The control and management of the A,ustin
State School, a State institution for the care of
feeble-minded persons, is vested in the Board for
Texas State Hospitals and Special Schools. Arts.
317413,Sets. 2 and 3, 3177, and 3234, V.C.S. Its
operation Is financed by biennial appropriations
out of the general revenue and local funds of the
institution. H.B. 426, Acts 52nd Leg. R.S. 1951
ch. 499, Art. II, at p- 1257;'Art. 3236, V.C.S. bn-
der Section 5 of Article 3174b, the Board may pro-
mulgate such rules and regulations as It deems proper
for the efficient administration of the institution,
          Articles 3233 through 3238, V.C.S., have
specific application to the admission and care ,of
the feeble-minded in the Austin State School. For
the purpose of those statutes, a feeble-minded child
is defined in Article 3233 as follows:
          "A feeble minded child . . D is one
     of such feeble mental or moral powers as
     to be ,unableto profit by the ordinary
     methods of education as employed in the
     common schools."
          With respect to the admission of the feeble-
minded in that School, Articles 3235 and 3238 are ap-
plicable. They provide:
          Article 3235 - "The Board shall pro-
    vide accomodations for only such number of
    inmates from year to year as can be advan-
    tageo,usly cared for with the appropriation
    granted for that year, giving preference
    first to girls and women of child bearing
    age, and to those of both sexes who are
    most likely to profit by the special educa-
    tion and training."
         Article 3238 - "In all cases in which
    the parent or guardian of a feeble minded
    person is financially able to pay the ex-
    penses of supporting and training such
    feeble minded person in the school, in whole
    or in part, he shall be required to do so.
    In all other cases there shall be no fees
    or charges."
         Article   3236   then provides in part:
. .. -




         Hon. Larry 0. Cox, page   3   (V-1454)


                   "All persons committed or admlt-
              ted to said institution shalTremaIn
              Fits   oustody as permanent wards,of
              this State until released by the manage-
              ment thereof. The superintendent and
              Board may in their discretion e . D at
              any time, parole any such person in the
              custody of parent or guardian for an in-
              definite period. D . .' (Emphasis ours.)
                   Thus, in the laws pertaining to the Austin
         State School there is fo,undno provision which.req,uires
         that a feeble-minded child, as therein defined, must be
         adjudged and committed by a court as such, before he may
         be admitted to that institution.
                   Articles 3867 through 3871, V,C.S., are
         the procedural laws providing for the adjudication
         and commitment of the feeble-minded to the Austin
         State School by a proper co,untycourt. Article 3871
         reads as follows:
                  "If such.person be found to be
             feeble minded, the court shall enter
             its order SO adjudging him, and that
             he be committed to the c,ustodyof the
             Austin State School. Upon the entry of
             such order, the court shall cause to be
             prepared a transcript of the proceedings
             and'evidence, which shall show the age,
             sex, race, status and mental condition
             of the patient, . . . and transmit the
             same to the superintendent of such school.
             If the patient is entitled to be received
             into the school, and there Is sufficient
             room therein, the superintendent shall
             notify said judge thereof, whereupon the
             .judge shall arrange to send such person
             to said school in like manner in all re-
             spects as is provided for the sending of
             insane patients to an asylum."
                   It Is pertinent to note that Articles
         x867-71, which have their origin in Senate Bill
         321, Acts 38th Leg., R.S. 1923, ch. 82, ps 172,
         were enacted several years after the laws governing
         admissions into the Austin State School. H.B. 73,
         Acts 34th Leg., R.S. 1915, ch. 90, p0 143.  Sec-
         tion 10 of Senate Bill 321, s'upra,specifically
                                                              .^ .. . _




Hon. Larry 0. Cox, page 4     (V-1454)


provides that the adjudication-commitment law "shall
not suspend the right to have feeble minded persots
admitted to such institution under existing laws.
The statutes respecting the Austin State School for
feeble-minded persons and commitment of patients
thereto should be liberally construed in order to
accomplish beneficent and humanitarian objectives
thereof as nearly as possible. Schultz vi Brown
152 S.W.2d 801 (Tex. Clv. App. 1941,'error di8m.j.
          Accordingly, it is our opinion that the
governing board of the Austin State School may legal-
ly accept, educate and instruct feeble-minded ,children,
as defined in Article 3233 and authorized in Article
3235, without their having been committed by a county
court, subject to the laws concerning their admission
in that institution. Since Article 3236 permits the
release of admitted persons Taothe custody of a parent
or guardian for an Indefinite period, such non-committed
children may, at the discretion of the Board, be permit-
ted to return to their homes each day after special edu-
cation:
                            SUMMARY
           The Board for Texas State Hospitals
     and Special Schools may legally accept,
     educate and instruct in the Austin State
     School feeble-minded children, as defined
     in Article 3233, V.C.S., without their
     having been committed by a county court,
     subject to applicable laws concerning
     their admission. Art. 3235, V.C.S. At
     the Board's discretion, such admitted
     children may be permitted to ret.urnto,
     their homes each day after classes. Art.
     3236,  V.C.S.
                                      Yours very truly,
APPROVED:                               PRICE DANIEL
                                      Attorney General
E. Jacobson
Reviewing Assistant
                                      Bym         2x%=-&J
Charles D. Mathews
First Assistant                          Chester E. Ollison
                                                  Assistant
CEO:mh
