                        July   17,   1952


Hon. Henry Wade           Opinion No. v-1481
District Attorney
Records Building          Re: Proper court for a sanity
Dallas, Texas                 trial on one previously
                              adjudged Insane at the time
                              of trial for a capital
Dear Sir:                     crimlnal,offense.
          Your request for an opinion of this office
presents for determination the following question:
         "Where a person has been charged with
    the offense of murder and has Interposed
    the defense of insanity and the District
    Court has found him to be Insane at the
    time of trial and he has been confined In
    the insane asylum, but is non certified by
    the Superintendent of the Plsylumas sane,
    is it the province of,the Cdunty Cou-f
    Dallas County to bring him to trial to de-
    termine his sanity, or is it the duty of
    the District Court that first found him to
    be insane to try him under Article 932a-3,
    C.C.P.?"
            Section 3 of Article 932a, V.C.C.P., pro-
vides:
         'When the defendant so committed to a
    hospital for the insane becomes sane, the
    superintendent of the hospital shall give
    written notice of that fact to the Judge
    of the Court from which the order of commit-
    ment issued. Upon receipt of such notice
    the Judge shall require the sheriff to bring
    the defendant from the hospital and place
    him in the proper custody until the hearing
    may be had before a jury in such Court to
    determine defendant's sanity, and if he be
    found sane, he shall be discharged, unless
    he had been previously found to be sane at
    the time at which he is alleged to have
    committed the offense charged, In which
Hon. Henry Wade, page 2 (v-1481)


     event, unless previously acquitted, he
     shall be tried for the offense charged."
          In Ex parte Fraile   146 Tex. Grim. 557
177 S.W.2d 72, 74 (1944) th:'court, in considering'
a similar factual situation, stated:
         "It Is evident.from the just above
    quoted provisions of the Act of the 45th
    Legislature that where Insanity is offered
    as a defense in a criminal proceeding,
    such enactment governs wherein in Section 3
    thereof it lays down the procedure relative
    to trialsin order tomestablish the fact
    that such person has been restored to sanity,
    and that .such trials, Initiated as provided
    in Section 3, must be had In the county
    where the criminal prosecution was pending
    at the time of the presentation of such
    Insanity plea and the trial thereunder.
         "A statute similar to the present 932a,
    C.C.P. was found in the Revised Statutes of
    1895, Art. 120, which reads as follows: 'Any
    patient, except such as are charged with or
    convicted of some offense, and have.,been
    adjudged insane in accordance with the pro-
    visions of the Code of Criminal Procedure,,
    may be discharged from the asylum at any
    time upon the recommendation of the super-
    intendent, approved by the board of managers.
    Any patient coming wlthln the above excep-
    tioncanonly   be discharged by order of the
    court by which he was committed.'(Italics ours)'
         "This statute was passed February 5,
    1858. Again, in the 1911 revision of the
    laws we find thisabove quoted article ap-
    pearing as Art. 142 of the Revised Statutes
    1911. However, the same seems to have been
    omitted In the latest revision of such stat-
    utes in 1925., Evidently,the Legislature,
    finding the need for a statute of like im-
    port, in 1937 ,passedwhat we now find to
    be Art. 932a, C.C.P., Vernon's Criminal
    Statutes, and thus restored the law as It
    had existed since 1858, with the exception
    of the interim between 1925 to 1937, and
    again leaving the tr,ialof a restorat=
Hon. Henry Wade, page 3 (v-1481)


     to sanity of a person 'charged,wlth a crlm-
     l.naloffensel~.tothe court whl,chhad declared
     such~person to be of unsound.mind ;II@ mphasis
     added-L.
           /
          "It therefore follows that the county
     court of Kaufman County was without juris-
     dictionto try the question of relator's'
     sanity, :and its judgment relative thereto
     is void and.of no effect, .and relator there-
     fore should be confined inthe State hospital,
     still pos,sessed,however,~of herrlght to'
     have the question of her sanity determined
     by the Dallas Court."
          Also in Ex parte Knox, 147 Tex. Grim. 110,
178 S.W.2d 861 (194s) it waspheld that since relator
was charged with a criminal offense the statute relative
to the determination of sanity was Article 932a, V.C.C.
P   and not Article 5561a, V.C.S., Article 5561a being
thi statute referred to for ordinary trials for lunacy
and being governed entirely by civil procedure.
          Thus Article 932a deals only with those
persons charged with a crime, while Article 5561a
relates solely to the~trlal of persons who are not
charged with a crime, and therefore when one Is charged
with a crime the issue of insanity must be tried pursuant
to the provisions of Article 932a. This being true, it
is incumbent upon the district court in which the
original proceeding ua,shad, rather than the county
court, to determine the question of sanity In a restora-
tion proceeding.
          In providing that written notice of the fact
that a defendant originally insane but now sane be given
to the judge of the court from which the order of com-
mitment Issued, Section 3 of Article 932a Is not free
from doubt as to which court was Intended. However, by
reason of the authorities to the effect that Article.
932a is an exclusive procedure in regard to persons
charged with a crime, we agree with you that such res-
toration proceeding must necessarily be referred to
the district court wherein the original criminal pro-
ceeding is pending. We believe the language used in
Article 932a relative to the court from which the
order of commitment came is to be construed in this
factual situation as being the District Court of Dallas
County. Jurisdiction is still vested In the district
Hon. Henry Wade, page 4 (v-1481)


court, and the county,court.pf Dallas County would
be without ju+a;dicti&n to try the qce,stionof sanity
and any judgment from that court would necessarily be
void and without effect. .
                          SUMMARY
          A defendant charged with crime and :
     found to be insane at the ,tlme of trial
     and confined .in an asylum but who is now
     certified by the superintendent of such
     asylum as:being sane mustbe returned to
     the court wherein he was found tb 'be in-
     sane for a restoration proceeding to de-
     termine the question of sanity of such
     defendant.
                              Yours very truly,
APPROVED:                       PiICE DANIEL
                              Attorney Qeneral
J. C. Davis, Jr.
County Affairs Division
          I
E. Jacobson                   BY     .4.-ttsC&
Reviewing,Assistant          4f      uce Allen
                                    Assisti%nt
Charles D. Mathews,
First Assistant

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