                                 AUSTIN.    TEXAS




                                    April 3,1950


Hon. R. A. Smoot Schmid                     Opinion No. V-1 029
Chairman
Board of ~Pardons and Paroles               Re:    The legality of extending
Austin, Texas                                      clemency   to a convict who
                                                   is now confined in a Veterans
                                                   Administration   mental hos -
                                                   pita1 while on a temporary
                                                   reprieve from the State peni-
Dear    Sir:                                       tentiary.

               Your   request   for an opinion    reads   as follows:

             “Application   has been made to the Board of Pardons
       and-Paroles     for a recommendation   for further clemency
       to a convict who is now confined in the Veterans’ Hospi-
       tal at Waco.     This man is held in the Hospital, under re-
       straint, by virtue of a lunacy conviction had in the County
       Court of McLennan County.

             “While subject was confined in the State Penitenti-
       ary at Huntsville,   under a felony conviction in Tom Green
       County, it was made known to the Board by the Prison
       Psychiatrist   that subject needed treatment for a mental
       disorder which the Prison System was not equipped to
       give.   Since this man is a veteran of World War II, it
       was suggested .that he could get the proper treatment
       in a veterans hospital.

            “The Board recommended,       and the Governor grant-
       ed, clemency  in the nature of a six months’ reprieve.
       Subject was ‘reprieved   to’ the Texas Veterans’ Affairs
       Commission,   and was by the Commission      turned over to
       the Veterans’ Administration    Hospital at Waco.   Because
       subject needed to be restrained,   the Hospital would not
       keep him until he had been legally adjudged insane.
                                                                            .



Hon. R.,A.     Smoot S&mid.      Page 2, V-1029.



     Accordingly,  he was tried for and convicted of lunacy
     in the County Court oft McLennan County, and was com-
     mitted to the Veterans’ Hospital.

             “We realize
                       that as long as this man is deemed
    insane; under a valid judgment of conviction,    he could
    not legally accept any clemency    extended to him. -How-
    ever, in view of the provisions   of Article 3186a, V.C.S.,
    relating to the trial of insane convicts in the ~County
    Court of Walker County, and the provisions     of chapter
    one, title 12, CCP. relating to ‘Insanity after Convic-
    tion,’ the question arises as to whether the adjudica-
    tion of lunacy by the County Court of McLennan Coun-
    ty was a valid one so as to prevent subject’s    accept-
    ing any clemency that might be extended to him.”

          Accompanying    your request is a certified copy of the com-
plaint in lunacy filed in the County Court of McLennan County agajnst
subject veteran, and you have advised us that the person who made
this complaint is a Deputy Sheriff of McLennan County.

         A determination    of the question submitted would seem, as
indicated by you, to involve the applicability  of Article 3186a, V.C.S.,
and the,provisions   of Chapter One, Title 12, (Articles   921, et seq.),
V. C. C. P;~; to the stated facts.  We do not believe, however, that
Article  3186a is applicable here.

             This Article   provides,   in part,   as follows:

          “Sec. 1. “When any prisoner   confined in the State
     Penitentiary  becomes insane, he shall be treated by
     the prison physician at Huntsville and shall be observ-
     ed by said physician and the Warden of the Penitenti-
     ary; and when, in the judgment of said physician or
     Warden, such convict is insane and should be transferr-
     ed to one of the State Hospitals for treatment of the in-
     sane, then either said prison physician or said warden
     shall go before~,the County Judge of Walker County,
     Texas, and make affidavit to said fact, and the County
     Judge shall forthwith proceed to try said convict in
     the same manner as other persons and under the same
Hon. R. A. Smoot S&mid,,       Page   3.~,V-1029:.



       rules, of procedure as apply to the trial,of      citizens
       who become insane . c. . .

             “Sec. 2. When a State Convict, located on any of
        the prison farms, becomes      insane, he’shall immediate-
       -1y be transferred   to the.main prison .at’Huntsville for
        observation   and treatment;

            .,
                 . . . .

            “Sec. 4. The headquarterss and main offices of
       the Texas Prison System, being located at Huntsville,
       in Walker County, that County ins given ,exclusive venue
       in the trial, of insane convicts’who are inmates of the
       Texas Prison System.”      (Emphasis  ad&d.)

           It is clear that Article  3186a applies only to convicts
actually confined in the State Penitentiary     at Huntsville,  or on one
of the prison farms from which they may be readily transferred
to Huntsville.     The subject prisoner   became’s  “convicts” after the
judgment of conviction against him in Tom Green County became
final (Art. 25, V.P.C.~), but at the time’of the proceedings     in Mc-
Lennan County he was not confined as contemplated           by Article
3186a.   He was actually out of the penitentiary     on reprieve when
the lunacy inquisition against him wss initiated.

             Article 921, V. Cl. C:~P.,   as ‘amended,   Acts   42nd Leg.,
R.S.    1931, ch. 54, p. 82, provides     as follows:

            “If at any time after conviction and by the,manner
       and method as hereinafter   provided, it be made known
       to the Judge of the Court in which the indictment has
       been returned, that the defendant has become insane,
       since his conviction, a jury shall be empaneled as in or-
       dinary Criminal cases to try the question of insanity.”

          We have heretofore    advised you in Opinion No. V-712
that tbe~District  Court in which a’defendant was convicted has ex-
clusive jurisdiction  &try  .the is~sue’of insanity arising.after con-
viction, Bland v. State; ~137 Tex. Grim. 486, 132 SW. 2d 274 (1939).
Hon.   R. A. Smooth    S&mid,   Page   4, V-1029



and the fact that a convict becomes~ insane while out of the peni-
tentiary on parole, conditional pardon, or reprieve does’ not de-
prive such District Court of its exclusive jurisdiction.

          Such jurisdiction    may be invoked only by following the
procedure   set out~iti Article  922, V; C.C.  P., as amended, Acts
42nd ‘Leg., OR. S. ‘1931, ch. 54, p. 82, which reads as follows:

             “Information   to the Judge of the Court as provided
       in Article   921 of the Code of Criminal Procedure       of the
       State of Texas as to the insanity of a defendant, shall
       consist of the affidavit of the Superintendent of some
       State Institution for the treatment of the insane, or the
       affidavit of not less than two licensed and regularly
       practicing physicians     of the State of Texas, or the affi-
       davit of the prison physician or warden of the Penal In-
       stitution wherein thedefendant       is in prison, or the Coun-
       ty Health Officer of the-County where the defendant was
       finally convicted,   n&i&affidavits,      if made, shall state
       that after a personal examination       of the defendant, it is
       the opinion of the affiant that the defendant is insane,
       and said affidavits shall, in addition thereto, set forth
       the reasons and the cause or causes which have justi-
       fied ,the opinion.”

         These provisions    are mandatory,   and “must be pursued
before the trial court would have jurisdiction   of the matter in deter-
mining the issue of insanity. ” Dotson v. State,‘149   Tex. Grim. 434,
195 S. Wi 2d 372 (1946).

           It follows that the affidavit of the Deputy Sheriff of McLen-
nan ‘County was insufficient    to invoke the jurisdiction of the (;ounty
Court of~McLennan County, even if such County Court had had jur-
isdiction, which it did not have.

          Since jurisdiction   is an essential prerequisite    to a valid
judgment, and since the County ‘Court of McLennan County never
had or:acquired   jurisdiction   of the issue of the subject’s   insanity,
its judgment of conviction of ~Rmacy was a nullity.      25 Tex, Jur.709,
 Judgments, Sec. 261.     Therefore,   subject stands as though he had
Hon. R. A. Smoot Schmid,     Page    5, V-1029.



never   been tried for lunacy;

          Every person is presumed to be sane until the contrary
is shown, and, inasmuch as there has been no valid adjudication
of the insanity of this convict, he is not precluded solely by the
proceedings    in the County Court of McLennan County from ac-
cepting any clemency     tendered to him of a nature such that his
acceptance   thereof is essential  to its valid operation.



                                 SUMMARY



          The County Court of McLennan County was without
    jurisdiction to try the issue of insanity of subject con-
    vict, Bland v. State, 132 S. W. 2d 274 (Tex. Grim. 1939).
    His purported conviction of lunacy being void, he is not
    precluded solely by the proceedings     in such County
    Court from accepting clemency      of such a nature as re-
    quires acceptance   to be operative.

                                             Yours   very truly,

                                             PRICE DANIEL
                                            Attorney General



APPROVED:

Charles D. Mathews                                Willis E. Gresham
Executive Assistant                                     Assistant

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