Honorable John H. Winters          Opinion No. WW-330
Commlssloner, State Depart-
  ment of Public Welfare           Re: The effect of the Texas
Austin, Texas                          Mental Health Code (House
                                       Bill No. 6, Acts of the
                                       55th Legislature, Regular
                                       Session, 1957, Chapter 243,
                                       Page 505) upon the eligi-
                                       bility for Old Age Assist-
                                       ance, Aid to the Blind, and
                                       Aid to the Permanently and
                                       Totally Disabled recipients
                                       on furlough from the State
                                       Hospitals for the mentally
Dear Sir:                              Ill, and related questions.

          You have requested an opinion concerning the effect
of the Texas Mental Health Code (House Bill No. 6, Acts of the
55th Legislature, Regular Session, 1957, Chapter 243, page 505)
upon the eligibility for Old Age Assistance, Aid to the Blind,
and Aid to the Permanently and Totally Disabled recipients on
furlough from the State Hospitals for the mentally Ill. In
as much as your request involves numerous questions, which are
set forth in the body of your request, we shall not attempt to
enumerate them but rather shall answer them in setting forth
the context In which they appear.
          Your first questions deal with an interpretation of
Section 79 of House Bill No. 6, Acts of the 55th Legislature,
Regular Session, 1957, Chapter 243, page 505 (Texas Mental Health
Code), which provides:
                 "Sec. 79.   Furlough of Patient
                 '?Phehead of a mental hospital may,
            after examination, furlough an improved
            patient and may at any time, by order, re-
            hospitalize a furloughed patient, provided,
            that the patient's mental condition warrants
            re-hospitalization. A patient on furlough
            remains subject to the orders of the head
            of the hospital."
          You have posed the following questions In connection
with this section:
                                                                .    c-   -




Honorable John H. Winters, page 2.   (w-330)


               "Do you interpret the 'by order' to
         mean the order of the head of the hospital
         or does this refer to the order of the
         committing court? It appears to us that
         It probably has reference to the head of
         the hospital and the last sentence which
         reads, 'A patient on furlough remains
         subject to the orders of the head of the
         hospital.' gives credence to this lnter-
         pretation. Does this last sentence mean
         that the head of the hospital has control
         of all patients on furlough from mental
         institutions to such an extent that he can
         recall the patient to the State hospital
         and that he can designate the place of
         residence of the patient while on furlough
         and retain general supervision of the
         patient?"
         We are of the opinion that the phrase "by order"
means the order of the head of the hospital to which the
patient Is committed. Furthermore, it is our opinion that
the phrase 'a patient on furlough remains subject to the orders
of the head of the hospital", when construed along with the
other provisions of Section 79, means that the head of the hos-
pital has control of all patients on furlough from that hospital
to such an extent that he can recall a patient to the hospital
and that he may prescribe such treatment as will help or guide
the patient toward his ultimate recovery from the mental condi-
tion with which he is afflicted. Section 79 provides the means
whereby the head of the hospital involved might allow an im-
proved patient to leave the hospital and continue his recovery
under more normal conditions. The section does not in any way
envision the discharge of the patient, for this procedure is
specifically provided for in Section 80 of the Act, and it fol-
lows, we believe, that short of discharge, the patient must of
necessity remain subject to a certain amount of the supervision
and control by the head of the hospital in as much as, even though
he be on furlough, the patient is undergoing a phase of treat-
ment directed toward his ultimate recovery.
         -E&h @%r&% -am-L       ‘AN. ~-pYo'Jr'AE
                        5%?&e2til            thio“?As.L*mrfi t&cl
the aged, blind and permanently disabled shall not be paid to
an individual who is an inmate of a public institution. Section
5la of Article III of the Constitution of Texas; House Bill 611,
Acts of the 47th Legislature; Re lar Session, 1941, Chapter 562,
page 914, (Public Welfare Act); f?2 U.S.C., Section 306, Section
1206, Section 1355 (Federal Social Security Act),
Honorable John H. Winters, page 3.    (w-330 1


         You have requested that we examine the prohibition set
forth in these provisions of the State and Federal Law in the
light of the construction which we have placed on Section 79 of
the Texas Mental Health Code above.

           The purpose of the prohibition Is, of course, to preclucie
the possibility that an Individual might be able to receive as-
sistance payments and at the same time be an Inmate of a public
instltutlon, and as such simultaneously receive maintenance from
this second source. As we construe Section 79 of the Texas Mental
Health Code, this situation could not arise, for even though the
patient be subject to recall by the head of the hospital, he
would not be receiving the maintenance which he would otherwjse
be getting   If confined to a state hospital, and even though his
recovery be subject to a certain amount of supervision by the hc3.i
of the hospital from which he was furloughed, he would in all
respects be undergoing treatment as an "out-patient", and, ther5-
fore, such person would not be an "inmate of a public institution,'
and he would not be denied the upkeep which he otherwise would be
receiving from the State. For this reason, we do not beljeve that
a patient furloughed under the provisions of Section 79 of the
Texas Mental Health Code would be ineligible to receive assistance
payments under the laws of the State of Texas.
         Section 5la of Article III, Const'tl!tionof Texas, also
provides that the amount of assistance pa$d out of State funds tc
each person assisted shall never exceed the amount so expended
out of Federal funds. We must, therefore, examine the interpre-
tation placed on the term “inmate” by the Federal authorities to
see if that term as they define it is in any way affected by the
construction which we have placed on Section 79 of the Texas
Mental Health Code.
          The United States Department of Health, Education and
Welfare has construed the term 'inmate" in the Handbook of Public
Assistance Administration, Part IV-3521.3, Section d of which
provides:
               "d. A person on conditional release--
         for example, 'on parole,' 'on trial visit,'
         from a public mental hospital where he was
         an inmate--is not an Inmate of a public
         institution if he Is free of controls by the
         hospital, other than professional help or
         guidance relating to his mental condition."
Honorable John H. Winters, page 4.   (w-330 1


         This definition has been further construed by a
letter of the Regional Office of the Department of Health,
Education and Welfare, which states:

               'In our opinion, an lndivldual uho was
         legally committed to a State mental hospital
         and later released, but whose person remains
         under the control of such hospital, must be
         considered as an 'Inmate' of such 'oubllc
         lnstltution.1 We refer you to Handbook of
         Public Assistance Administration, _Partz-
         3521.3, Inmate, d, . . ."
         The handbook definition referred to In the above letter
specifically provides that a person "on parole" or "on trial
visit" from a DUbliC mental health Institution is -
                                                  not an inmate
if he is free bf controls by the hospital other than professional
health or guidance relating to his mental condition.
         We believe that the "control" that may be effected by
the head of the hospital under our construction of Section 79,
Mental Health Code, is in complete accord with the definition of
"Inmate" as made by the Federal authorities, and for this reason,
we believe that a patient on furlough from a State mental hospital
is not an inmate of a public institution, and is, therefore,
eligible for assistance during this period.
         Your second series of questions deals with certain
problems involving guardianship which have arisen from your
interpretation of the provisions of the Texas Mental Health
Code. Your first question provides:
               'Is there any provision In the Law for the
         Court to find a person to be an 'incompetent per-
         son' so that general guardianship may be establlsh-
         ed for that individual without that individual hav-
         ing to be committed to one of the State hospitals
         for the mentally ill?"
         Section 84 of the Texas Mental Health Code provides:
               "Sec. 84.   No Effect on Guardianship

               "No action taken or determination made
         under this Code and no provision of this Code
Honorable John H. Winters, Page 5 (Ww-330).



          shall affect any guardianship established
          In accordance with law.”
          We believe that this Section clearly indicates that
the provisions of the Code are to be considered as separate
and apart from, and In no way as controlling upon, any guard-
ianship established, or to be established, in accordance with
the laws of Texas. In other words, we believe that it was
the Intent of the Legislature that the Texas Mental Health
Code should exist as a special procedure for providing for
the treatment of the mentally Ill above and beyond the exlst-
lng law and should In no way limit those areas of our law not
specifically encompassed within Its provisions. This being
so, we are of the opinion that the remedies which presently
exist under the Texas Probate Code for the finding of incom-
petency are still applicable and provide the means whereby
a general guardianship may be established for an Individual
without that person being committed to one of the State hospl-
tals for the mentally Ill. The views expressed In Attorney
General's Opinion No. ~~-18 (1957) would of course be appli-
cable In such a case.
          After setting forth the fact that many of the
recipients of assistance are senile or mentally deficient
and that Section 5 of the Code specifically exempts "senility"
and "mental deficiency" from the definition of "mental
Illness", you state:
               "In order to make. assistance payments
          on behalf of these persons a general guard-
          ianship must be established. Is there any
          provision in the statute for a court finding
          of 'Incompetency'which could be used as the
          basis for a general guardianship for persons
          Incapable of handling their own affairs due
          either to 'senility' or 'mental deficiency'?"
          It is our opinion that the statute (Texas Mental
Health Code) does not contain any provision which would allow
a court finding of "incompetency" which could be used as the
basis for a general guardianship for persons Incapable of
handling their own affairs due either to "senility" or "mental
deficiency"; but that the provisions of the Texas Probate Code
would be available In order for such a guardianship to be
established.
          Your request next sets forth certain portions of
Sections 81, 83 and 84 of the Texas Mental Health Code, and
you make the following request concerning them:
Honorable John H. Winters, Page 6 (WW-330).


               "We will appreciate your interpretation
          of these three Sections of the Code in rela-
          tion to the problems of the recipients of
          public assistance who are unable, because of
          their mental condition, to receive and expend
          their assistance grants."
          As stated In our answer to your first question, we
are of the opinion that Section 84 establishes the fact that
the Mental Health Code Is to be considered as separate and
apart from any guardianship established otherwise by law.
Therefore, when Sections 81(b) and 83 of the Code use the
term "mental incompetency", they refer to the finding of in-
competency which may or may not be found under the provisions
of Section 51 of the Code, and have no bearing whatsoever,
upon any finding of Incompetency which might have been found,
or might in the future be found, under the provisions of the
Texas Probate Code.
          Your next question Is encompassed in the following
statement:
               "In Section 81 it Is stated that the
          discharge of a patient from the hospital
          terminates the presumption that he Is
          mentally Incompetent; however, under Sec-
          tion 83 It Is stated that the judicial
          determination that a person Is 'mentally
          incompetent' creates a presumption that
          the mental incompetency continues until
          the person Is discharged from the hospital
          or Is redetermined by a court. Under what
          circumstances would a judicial redetermina-
          tion of his mental competency be required,
          and what is the status of the person who
          has been judicially determined mentally
          Incompetent but who was not committed to
          a State hospital?"
          The phrase "redetermination by a court" as It is
used in Section 83(a) of the Code , we believe refers to the
redetermination which may be required under the provisions
of Section 82 of the Code. The circumstances under which a
judicial redetermination would be required are set forth in
Section 82(a), which provides:
               "Sec. 82.   Re-exsminatlon--Hearing--
                            Discharge
               "(a) Any patient, or his next friend on
          his behalf and with his consent, may petition
Honorable John H. Winters, Page 7 (W-330).


          the county judge of the county in which
          the patient Is hospltallzed for re-exsml-
          nation and hearing to determine whether
          the patient requires continued hospltall-
          zatlon as a mentally Ill person.'

The status of a person under the Texas Probate Code who has
been judicially determined mentally Incompetent, but who was
not committed to a State hospital, would in no way be affected
by this determination.
          Your next question Is as follows:
               "It has been the practice of this Depart-
          ment for many years to require an Order of
          Restoration of Sanity when It is shown that
          the recipient had been declared by a Court to
          be 'mentally incom etent' or of unsound mind.
          Do these Sections 8 1 and 83 mean that when a
          person who has been declared to be 'mentally
          Incompetent by a court and is dlshcarged
          from the State hospital considered to be
          capable from a legal standpoint or handling
          his own affairs and receiving his assistance
          grant in his own name?"
          If the only determination of competency has been under
the provisions of the Texas Mental Health Code, then the patients
discharge would terminate the presumption of incompetency. If on
the other hand the question has been determined in proceedings
other than under the provisions of the Code, then the discharge
will have no effect whatsoever upon that determination.
          Your next question is as follows:
               "Presumably some patients will be dis-
          charged from the State hospital as being no
          longer in need of hospitalization but who are
          Incapable of taking the responsibility for making
          their own application for assistance and expending
          their assistance grants; and, therefore, the De-
          partment will require the appointment of a guardian.
          How will the court set up a general guardianship If
          by being discharged from the mental hospital the
          presumption of 'mental incompetency' Is terminated?"
          In accord with our answer above, we are of the opinion
that Section 84 of the Code specifically provides for such a
                                                                    f   -




Honorable John Ii.Winters, page 8.   (W-330)


situation and that a guardian may be appointed under the provi-
sions of the Texas Probate Code.

         The next question is as follows:

               "If it is obvious to the Department that
         the person Is not capable of handling his own
         check but the patient has been discharged from
         the hospital, under what circumstances could
         the Department require the appointment of a
         general guardianship or require a redetermlna-
         tion of the person's mental incompetency by
         a court?"
         The presence of any circumstances which would have
led your Department to require the appointment of a general
guardianship prior to the effective date of the Texas Mental
Health Code would warrant such a requirement after the dis-
charge of the patient under the provisions of the Mental Health
Code.

         Your next question is as follows:
               "Is there any provision in the Code for
         judicially determining that a person is mental-
         ly incompetent or of unsound mind unless the
         determination Is made in connection with an
         application for admission to one of the State mental
         hospitals?"
We have been unable to find any such a provision in the Code,
         Your next question Is as follows:
               "What does Section 84 mean in relation to
         the general guardianships which are required
         for recipients of assistance as discussed in At-
         torney General's Opinion No. WW-18?”
         We interpret Section 84 to mean that the provisions of
the Texas Mental Health Code have no effect on the general guard-
ianships which are required for recipients under the reasoning of
Attorney General's Opinion No. ~~-18 (1957).
         Your next question is as follows:
               "Is it your interpretation of the Code that
         the same procedure for the establishment of guard-
         ianship or mental competency would be   followed
         in those cases where the adjudication of incompe-
         tency had been made prior to the effective date
         of the Code and those wherein all proceedings were
-   _




        Honorable John H. Winters, page 9.    (w-330)


                  ;;ie;l;fbsequent
                                 to the effective date of the

                  We answer this question In the affirmative.

                  Your next question is as follows:
                        'In other words, if the head of the State
                  mental hospital should discharge after January
                  1, 19% those persons who are now on furlough
                  and who are receiving assistance through general
                  guardianships, would the discharge of those per-
                  sons have the effect of restoration of comre-
                  tency or termination of 'mental Incompetency'?"
                  We answer this question in the negative.
                  Your next question is as follows:
                        "If so, then upon what basis would or
                   couldthe guardianship which has already been
                  established and which, in our opinion, is a
                  prerequisite to their receiving assistance
                  likewise terminate?"
                   Cur answer to the preceding question makes it unneces-
        sary   for us to answer this question.
                   Your next question is as follows:
                         "If not, upon what basis would it be con-
                   tinued if the individual is no longer consider-
                   ed 'mentally incompetent'?"
                 Any guardianship which was established under the law,
        outside of those contained in the Texas Mental Health Code,
        would continue under the provisions of the Probate Code pursuant
        to which it was established.
                   Your final question is as follows:

                         "Would the decision be the same in rela-
                   tion to those whose 'mental incompetency' was
                   adjudicated prior to the effective date of this
                   Act as well as to those whose mental incompe-
                   tency was adjudicated subsequent to the ef-
                   fective date of this Act?"
                   We answer this question in the affirmative.
Honorable John H. Winters, page 10.    (~-330)


                        SUMMARY

               A patient on furlough, under the pro-
         visions of House Bill No. 6, Acts 55th Legis-
         lature, Regular Session, 1957, Cha ter 243,
         page 505 (Texas Mental Health CodeP , remains
         under the control of the head of the hospital
         to which committed to such an extent that he
         can recall the patient to the State Hospital
         and that he may prescribe such treatment as
         will help or guide the patient toward his
         ultimate recovery from the mental condition
         with which he Is afflicted. Any declaration
         of incompetency or presumption of competency
         made pursuant to or arisin out of the pro-
         visions of House Bill No. 2 Acts 55th Legis-
         lature, Regular Session, 1957 Chapter 243, page
         505 (Texas Mental-Health Code), has no effect
         whatsoever on any guardianship established
         under the provisions of the Texas Probate Code.
                                  Yours very truly,
                                  WILL WILSON



                                          nd C. Rivers, Jr.
WCR:zt                               Assistant

APPROVED:
OPINION COMMITTEE
Ceo. P. Blackburn, Chairman
B. H. Tlmmins, Jr.
Fred Werkenthln
John H. Minton, Jr.
REVIEWED FOR THE ATTORNEY CENERAL
BY: James N. Ludlum
