                   THEA            ORNEY           GENERAL
                                  OF?B-ExAS              '
                                AUSTIN    1% TEXAS

WILL      WILSON

                                  July 10,     1961

   Honorable Robert Galloway             Opinion No. WW-1088
   District Attorney
   84th Judicial District                Re:    Whether a person who has been
   Borger, Texas                                convicted for a felony, and
                                                while his appeal is pending
                                                and being confined in the
                                                County Jail becomes mentally
                                                ill, may be transferred to a
                                                State mental hospital by viture
                                                of Article 932-1, Sec. 12 of
       Dear Mr. Galloway:                       the Code of Criminal.Procedure.

                 Your request for an opinion of this office concerns the follow-
       ing state of facts.

             The defendant was convicted of a felony (rape), and was sen-
   tenced to not less than five nor more than ninety-nine years. The de-
   fendant has appealed and the appeal is now pending before the Court of
   Criminal Appeals. The defendant has become mentally ill, but the best
   available evidence indicates that he is not legally insane in the sense
   of knowing right from wrong. The problem is whether, under this state
   of facts, the defendant can be transferred to a mental hospital. Article
   932b, Section 3,C.C.P., states as follows:

                   "If the question of the sanity of the defendant is
                raised after his conviction and prior to the pronounce-
                ment of-sentence in a felony case or while an appeal
                from that conviction is pending, and sufficient proofs
                is shown to satisfy the judge of the convicting court
                that a reasonable doubt exists as to the sanity of the
                defendant, the judge shall impanel a jury to determine
                whether the defendant is sane or insane. If the jury
                finds the defendant is insane, the court shall enter
                an order committing the defendant to a State mental
                hospital and placing him in the custody of the sheriff
                for transportation to a State mental hospital to be con-
                fined therein as a person charged with a criminal of-
                fense until he becomes sane. If the jury finds the
                defendant is sane, the proceedings in the case against
                him shall continue."

                 In the case of Ex p&e   Hodges, 314 S.W.2d 581 (Tex.Crim. 1958),
       the court per Woodley J. said:
                                                                               -.   .




Hon. Robert Galloway, Page 2   (WW-1088)



             "It is well settled that an accused may be mentally
          ill~or of unsound mind and yet be legally sane. The
          testis not whether he is of unsound mind or mentally
          ill, but whether he is rendered incompetent to make
          a rational defense thereby, and whether he is laboring
          under such defect of reason from disease of the mind
          as not to know the nature or quality of his otherwise
          criminal act, or if he does know, is unable to dis-
          tinguish between right and wrong as to such act."

          We feel that the above language indicates that Article 932b,
C.C.P., has no application to the present state of facts. Section 12
(a) of Article 932-l C.C.P. reads as follows:

             "The county
                       --- judge mav
                                   _ transfer a prisoner who is
          serving a sehtence in a county jail to a State mental
          hospital if the county health officer certifies that
          the prisoner is mentally ill and would benefit from
          treatment in a mental hospital and if the judge is
          advised by the head of a State mental hospital that
          facilities are available for treatment of the prisoner."
          (Emphasis added.)

          The question presented by this request is, whether the defendant
is serv1ng.a sentence in the county jail within the meaning of this section
when he is in custody of the sheriff pending the outcome of his appeal to
the Court of Criminal Appeals?

          The term "sentence" is properly applied only in felony cases since
one is not,sentenced formally in a misdemeanor case, Ex parte Hayden, 215
S.W.2d 620 (Tex.Crim. 1948);~Attorney General's Opinion V-415.

          The Legislature has used the term "sentence" in Section 12 (a)
of Article 932Ll. If taken literally, the section would lead to an absurd
result, since it is impossible to serve a "sentence" in a county jail.
We are left to conclude therefore that the legislative intent must here
refer to any confinement in a county jail which is a result of a criminal
charge. It follows that this defendant is serving a sentence in the
county jail within the meaning of Article 932-1, C.C.P.

                               SUMMARY

            "A person who has been convicted of a felony, and
         while his appeal is pending and being confined in the
         County Jail becomes mentally ill, may be transferred
         to a State mental hospital by virtue of Article 932-1,
         Section 2 of the Code of Criminal Procedure.
Hon. Robert Galloway, Page 3   (ww-1088)



                                       Very truly yours,

                                       WILL WILSON
                                       Attorney@neral   of Texas




                                           Assistant Attorney General

JEL/br

APPROVED:

OPINIO~~~OMMITTEE
W. V. Geppert,~Chairman

Harris'Toler
Virgil Pulliam
Gilbert Hargrave

&V--FOR     THEATPORNEY   GENERAL
By: Morgan Nesbitt
