                             AUSTINXU.TEXAS
PWB~:EDANXEL.


                             February   25,     1952

          Hon. Austin F. Anderson         Opinion No. V-1414
          Criminal District Attorney
          Bexar County Courthouse         Re:    Proper procedure for
          San Antonio 5, Texas                   a sanity hearing for
                                                 a person who has been
                                                 placed on adult proba-
                                                 tion following convlc-
                                                 tion of a felony and
                                                 who has subsequently
                                                 been arrested for an-
          Dear Sir:                              other crime.

                   Your request for our opinion reads in part
          as follows:
                    "On September 15, 1951, Subject was
                convicted of burglary, on a plea of guilty,
                by the Criminal District Court of Bexar
                County, Texas. No issue was raised as to
                his sanity. Subject was sentenced to serve
                four years on probation. Subsequently on
                October 19, 1951, Subject committed forgery
                and was arrested. While lodged in the
                county jail, and on the 7th day of Novem-
                ber 1951, he was examined b the County
                Health Officer, and on the 6 th day of
                November 1951, by a psychiatrist in pri-
                vate practice; both of whom found Subject
                to be psychotic, I.e. insane. Both the
                County Judge of Bexar County and the Judge
                of the Criminal District Court of Bexar
                County were cognizant of the facts and were
                amenable to a trial in either court.
                    "On December 12, 1951, after expira-
                tion of t,heterm at which Subject was con-
                victed, the questions arose:
                    n1. Should Subject be committedto
                the State Hospital by following the proce-
                dure outlined in Art. 5561a, V.C.S., or by
                following Art. 921 et seq. V.C.C.P.? and
Hon. Austin F. Anderson, page 2   (V-1414)


         "2. Could Subject be committed to
     the State Hospital for a period not to ex-
     ceed ninety days for observation and/or
     treatment by virtue of Art. 31930-l V.C.S.?
     and

         "3. Is either the civil or the crim-
     inal procedure set out above exclusive of
     the other?
        "4 , Would the County Court have juris-
    diction to try the defendant for insanity if
    he had not committed a crime while on proba-
    tion?"

         Subsequent to your request you advised us
that the complaint in the foregoing case is still
pending and no indictment has been returned.
        Article 5561a, V.C.S., provides in part:
        "If information in writing under oath
    be given to any county judge that any person
    in his county, not charged with a criminal
    offense, is a person of unsound mind, and
    that the welfare of either such person or
    any other person orpersons requires that
    he be placed under restraint, and such coun-
    ty judge shall believe such information to
    be true, he shall forthwith issue a warrant
    for the apprehension of such person, or, if
    such like information be given to any justice
    of the peace in such county, said justice may
    issue a warrant for the apprehension of said
    person, making said complaint and warrant
    returnable to the county court of said coun-
    ty, and said county judge in either event
    shall fix a time and place for the hearing
    and determination of the matter, either in
    term time or in vacation, which place shall
    be either at the court house of the county,
    or at the residence of the person named, or
    at any other place in the county, as the
    county judge may deem best for such hearing.
    . . .
         Article 31930-1, V.C.S., authorizes the
county judge to commit mentally ill patients to      -
,-    Hon. Austin F. Anderson, page 3   (V-1414)


      State Hospitals for ninety days for observation and
      treatment.
               Article 921, V.C.C.P., provides:
               "If at any time after conviction
          and by the manner and method as herein-
          after provided, it be made known to the
          Judge of the Court in which the indict-
          ment has been returned, that the defend-
          ant has become insane, since his convic-
          tion, a jury shall be empaneled as in
          ordinary Criminal cases to try the ques-
          tion of insanity.'
                Article 932a, V.C.C.P., provides in part:
                "Section 1. In any case where inaan-
           ity is interposed as a defense and the de-
           fendant is tried on that issue alone, before
           the main charge, and the jury shall find
           the defendant insane, or to have been fn-
           sane at the time the act is alleged to have
           been committed, and shall so state in their
           verdict, and further find the defendant:
                "a. To have been insane at the time
           the act is alleged to have been committed,
           but sane at the time of the trial, he shall
           be immediately discharged;
                "b. To have been insane at the time
           the act is alleged to have been committed
           and insane at the time of trial, or sane
           at the time the act is alleged to have been
           committed and insane at the time of trial,
           the Court shall thereupon make and have
           entered on the minutes of the Court an or-
           der committing the defendant to the custody
           of the sheriff, to be kept subject to the
           further order of the County Judge of the
           county, and the proceedings shall forthwith
           be certified to the County Judge who shall
           at once take the necessary steps to have
           the defendant committed to and confined in
           a State hospital for the insane until he
           becomes sane.
 _-
Hon. Austin F. Anderson, page 4   (V-1414)


          'Sec. 2. When the defense on the
     trial of the main charge is the Insanity
     of the defendant the jury shall be instruct-
     ed, if they acquit him on that ground, to
     state that fact with their verdict, and if
     they further find the defendant:
         'a. To have been insane at the time
    the act is alleged to have been committed,
    but sane at the time of the trial, he shall
    be immeddately discharged;
         'b. To have been insane at the time
    the act is alleged to have been committed
    and insane at the time of trial, or sane at
    the time the act is alleged to have been com-
    mitted and insane at the time of the trial,
    the Court shall thereupon make and have
    entered on the minutes of the Court an order
    committing the defendant to the custody of
    the sheriff, to be kept subject to the furth-
    er order of the County Judge of the county
    and the proceedings shall forthwith be cer-
    tified to the County Judge who shall at once
    take the necessary steps to have the defend-
    ant committed to and confined in a State hos-
    pital for the insane until he becomes sane.


          In Rx  arte
              44y,    is ,ta;~;z'JhxeGrim. 110, 178
                   it Knox
S.W.2d 661 (1.9
         "Relator was under the accusation of
    felony theft, as evidenced by certain com-
    plaints filed in a justice court of Hidalgo
    County, and was held thereunder by virtue
    of a warrant issued out of such court on
    December 20, 1943; that while held in jail
    on such warrant by the sheriff of such
    county, on February 9, 1944, relator's wife
    filed an affidavit in lunacy in the county
    court, alleging that relator was a person
    of unsound mind, etc., and requesting that
    he be !;r:;ed
                thereunder in the county court
    of'such county. On February 23, 1944, the
    grand jury of Hidalgo County indicted re-
    lator for felony theft in three cases, and
Hon. Austin F. Anderson, page   5   (v-1414)



     returned same into the district court of
     that county, they being the aame cases under
     which he was held by virtue of the justice
     court warrants.
         “Relator now makes application to this
    court requesting that we issue our writ of
    habeas corpus herein, and that we also issue
    writ of mandamus to the county judge of
    Hidalgo County, directing him to forthwith
    try relator in such county court under the
    affidapit in lunacy in order to determine
    his sanity thereunder.
         "It appears from the record that prose-
    cution had begun in the matter of the felony
    thefts by a filing of complaints in the prop-
    er court prior to the attempt to have the
    question of relator's sanity inquired into
    by the county court, and that at the time
    of such filing of the insanity affidavit pro-
    secution was pending in the felony cases.
    See 5 Words and Phrases, Perm. Ed., p. 281.
    Therefore relator was at such time charged
    with a criminal offense, and the statute re-
    lative to the determination of his sanity
    is found in Art. 932a; Vernon's Ann. C.C.P.,
    and not in Art. 5561a, Vernon's Texas Stat-
    utes 1939, Cumulative Supplement. . . ."
          In view of the foregoing, it is our opin-
ion that the county court has no jurisdiction to com-
mit the defendant to the State hospital under the
provisions of either Article 5561a, V.C.S., or 31930-1,
V.C.S.
          In McKibben v. State, 140 Tex. Crim. 1, 148
S.W.2d 423 (1940), it is stated:
          "Appellant was convicted in Comanche
     County of robbery and his punishment as-
     sessed at five years in the penitentiary.
          "Appellant gave notice of appeal to
     this court and the record was filed here on
     the 26th day of February, 1940. It is now
     shown by proper certified copies of orders
     and judgments that on May 3, 1940, there
     was pending in Eastland County, Texas, a
Hon. Austin F. Anderson, page 6   (V-1414)


    prosecution against appellant in which he
    was charged with a felony, to-wit, forgery.
         "On the date last mentioned an affi-
    davit was filed in the District Court of
    Rastland County where the forgery charge
    was pending averring that appellant was
    then insane, and requesting that he be first
    tried on that issue before putting him to
    trial upon the forgery charge. A jury was
    impaneled and it returned a verdict find-
    ing that appellant was then insane. Said
    judgment was certified to the County Judge
    of Eastland County, who by proper orders
    committed appellant to the asylum at Wichita
    Falls, where he is now confined.
         "Art. 925, C.C.P., provides: 'Upon
    the trial of an issue of insanity, If the
    defendant is found to be insane, all fur-
    ther proceedings in the case against him
    shall be suspended until he becomes sane.'
         *Counsel for appellant has filed a
    motion asking that under the provision of
    the article quoted further proceedings in
    the present cause be suspended until this
    court is properly advised that appellant has
    become sane. The article in question ap-
    plies to proceedings in the Court of Crim-
    inal Appeals as well as to the trial court.
    See Williams v. State, 135 Tex. Cr. R. 585,
    124 S.W.2d 990; Jones v. State, 137 Tex.
    Cr. R. 150, 128 S.W.2d 815.
          "Under the provision of Article 921,
    C.C.P., as amended in 1931, Acts 42nd
    Legislature, page 82, Chapter 54, Vernon's
    Ann. Tex. C.C.P. art. 921, it is contemplated
    that the issue of insanity after conviction
    should be tried and determined by the Dis-
    trict Court in which the conviction oc-
    curred. Rx parte Milliken, 108 Tex. Cr. R.
    121, 299 S.W. 433; Rx parte Davenport, 110
    Tex. Cr. R. 326, 7 S.W.2d 589, 60 A.L.R.
    1403; Escue v. State, 88 Tex. Cr. R. 447,
    227 S.W. 483; Bland v. State, 137 Tex. Cr.
    R. 486, 132 S.W.28 274, 130 S.W.2d 292.
    Mone of the cases mentioned presents a
     BOII.       Austin F. Anderson, page 7   (V-1414)


                 situation similar to that here present and
                 in enacting the statute referred to the
                 Legislature apparently did not foresee nor
                 contemplate a situation as bas arisen here.
                 The judgment of present insanity of appel-
                 lant was not in the District Court where
                 the instant conviction occurred, but was
                 in a District Court where another felony
                 charge was pending against appellant. There
                 can be no question, therefore, of the juris-
                 diction of the Mstrict Court of Eastland
                 County to determine the issue of present ln-
                 sanity of appellant as it related to the
                 charge of forgery pending against him in
                 that county. . . .
                      "The question is not free from dlffi-
                 cultg. However, without going into a fur-
                 ther discussion of the matter at this time we
                 have concluded that no harm can ultimately
                 result to either the State or appellant to
                 direct the retirement of this case from the
                 docket, and the stay of further proceedings
                 therein until this Court is advised by
                 proper orders and judgments that appellant
                 has been restored to sanity, and it Is so
                 ordered.'
               In view of the foregoing lt Is our opinion
     that the Issue of insanity could be tried in the Ms-
     trict Court to which the Indictment is returned under
     the provisions of Artich  932a, V.C.C.P., or in the
     District Court wNch placed the defendant on probation
     under the provisions of Article 921 et seq., V.C.C.P.
               Passing now to your fourth~question it
     T?.s&heldin Attorney General's Opinion V-712 f1948)
             :
                      "A convict, who becomes insane while
                 out of the penitentiary on parole, condl-
                 tional pardon, or reprieve, is within the
                 purview of Article 921, and the issue of
                 his insanity can be tried and determined
                 only in the District Court in which he was
                 convicted, and then only when his applica-
                 tion for a trial as to his Insanity, ac-
.-               companied by one or more of the affidavits
Hon. Austin F. Anderson, page    8    (V-1414)


    required by Article 922, is presented to
    the Judge of the Court- Dotson v. State,
    195 S.W.2d 372.
          "The fact that a convict becomes in-
     sane wNle out of the penitentiary on parole,
     conditional pardon, or reprieve does not
     deprive the District Court in which he was
     convicted of its exclusive jurisdiction to
     try and determine the Issue of Ns insanity."
          If a defendant is still serving Ns sentence
under probation (Art. 781b, V.C,C.P.), and has not sub-
sequently committed another crime, the rule announced
in the above Attorney General's Opinion is applicable
and the MstrLct Court which placed the defendant on
probation has exclusive jurisdiction to try the issue
of defendant's insanity.




                            SUMMARY

          Where a person who Is convicted of
     burglary and is placed on probation, sub-
     sequently commits forgery the County Court
     has no authority to commit such person to
     a State Hospital for insanity under the pro-
     visions of either Article 5561a OF 31930-1,
     V.C.S.

          The issue of insanity should be tried
     in the Mstrict Court wNch placed Nm on
     probation under Article 921, V.C.C.P., or
     in the District Court in which the indict-
     ment is returned for forgery under the pro-
     visions of Article g32a, V.C.C.P.
     Knox 147 Tex. Grim. 110, 178 S.W.2d
     fi~;$;K;1;""';,v~l;tate, 140 Tex. Crim.
       ,     a 0             .
                                                          -.
          The   County   Court
                           would not have juris-
     diction to try such person for insanity
Hon. Austin F. Anderson, page 9   (V-1414)


     during the period of probation, even If he
     had not committed a crime during such period,
     since the District Court which placed him on
     probation has exclusive jurisdiction to try
     the issue of Insanity under Article 921,
     V.C.C.P. Att'y Gen. Op. V-712 (1948).
                                  Yours very truly,

APPROVED:                           PRICE DARIEL
                                  Attorney Genera.1
J. C. Davis, Jr.
County Affairs Division
E: Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant
BA:mh
