HOR. MoyQe L. Kelly           opinion No. v-998.
Bxeoutive Dlreotor
Board for Texas State         Re: Several questions re-
Hospitals & Special Schools       latlve to the prooe-
Austin, Texas                     dure to be followed to
                                  discharge patient8
Dear Sir:                         from State hospitals.
          Reference.1~made to your reoent request which
reada in part aa follbwa:
          "This Board is unable.to interpretoer-
     taln portions of H.B. Ho.856, Aota of the 51st
     poget-     * Section 3 of.the bill reads aa
            :
          "'Qec.3. Whenever ah inmate of a Stste
     EospZtal thus committed shall @& found by the
     Superintendentthereof to have recovered to
     an extent that he Is no longer of~u~ound mind,
     WZ shall b&the duty of a.sldSuperintendentto
     %ninedlatelyoertify that faot~to the Jude f
     ');he
         county Court of the county itiwhich a%
        pltal la looated. and file an affidavit aak-
     lii:BRfor
             the restorationof said inmate. such
     restorationproceedlnRs to be heard and deteli-
     mined in the same ma-r as now Provided bs
     law. It shall be the duty of said Judge to
     mt     and try such prooeedlnga at Ohs earll-
     eat possible time.' (Rmphsals~supplled.)

          "It would appear.fromthe above quoted
     section that the restorationprooeedlngswould
     necessarilyhave to be held-la the county in
     which the hospital la located. However, in
     Seation 4 of H.B. Ho.856 It la >proHded:
          "'3ec.4. Whenever an inmate of a State
     &spite1 shall have baermthua certified by
     the Superintendentthereof aa recovered, it
     shall also be the duty of said Superintendent
     to immediatelyrelease said inmate, If not al-
     ready on furlough, from said hospital, in the
                                                         .   -




Hon. Moyne L. Kelly, page 2   (V-998)
              .

    same manner and aubjeot to the saat6provisions
    as la provided in Article 31931, Revlaed Civil
    Statutes of the State of Texas,,1925, but ln
    i&o'6v&mtshall &u&h inmate be d'ia&ha~rpr~rn
    said hospital unless and until his restorstlon
    has been adjudued~by a court of competent jur-
    Tadictloa. The rl ht of rearrest and reoon-
    flnemsnt co such hfapltal shall aontlnue to
    exist as to such inmate while dn furlough pend-
    ing restorationprotleedlnga in the same manner
    and to the same full extent as is now provided
    in Artlole 31931.' (Emphasissupplied.)
         *From Section 4'1t would app6ar~thatthe
    ianrapemay be dischargedfrom the hospital
    vg?n his restorationhas been adjhd$ed by a
    +ur$ of oompetent jurisdiction.


    have the proceedingsin &e countZ&S in uhlch '
    the hpapltal is looated;%gardl6as 6f where
    the ~patlentamight W residing? (Furloughed
    pet.ientsmay be several hundred.miles away
    f&k the county in which the hospital is la-
    dated.)
          "&Wilon Ho. 2: If your ansver%o~Ques-
     Won g,~~.~%~~.~~~,..~h~,.~afflrmative,
                                      vwuld~such
     prwvl$lti 5s cwtistltutlwnalin requiring rea-
     toratlwn proceedings in only seven (7) owun-
     ties in the State of Texas, therebg~,deprlving
     the inmate from having s restorationprwceed-
     img in his oounty of legal residence?
      ~-"~*'*3lace
                 H.B. Ho.856 allows dlacharge wn-
     Iy by.restoratlwn,it la neceaaarJr.f6r the
     hospitals to carry patients as being furlough-
     ed, escaped or transferredto another State or
     Federal hospital; and alnae Article'31931al-
     lows furloughs for 0~ year, ~-examlaatlon at
     the end of one year, and oontlnuaPae of furlough
     for two additionalyea-, the Ewllowlng
                                       ~~    questions
     iirlae:
                            What should be dose at
     the e                  with patients who are
     not mentally capable of belag restored, but
     who are well enough not to need hospltallza-.
     tiwm?
-   .


        Hon. Moyne L. Kelly, page 3   (v-998)
                   I




                  "QuestionIiw.4: How should a patient
             be oarrled on the hospital oenaua when such
             p&lent is not returned at the end of the
             first year of furlough for the required ex-
             amWatlon?
                  "QuestionBo. 5: Hw ahouId a_-_ patient
                                                     -
             e carried on the  hospital
                             -_.        cenaua zr rurlough-
             ed or esoaped and later oommltted to a State
             or Federal hospital In another State?"
                  It was held in Hatton v. State B&d   of Con-
              146 Tex.160, 204 3.%l.2d390 (1947) that it was
             uty of the Superintendentof a 3tad Hospital to
        discharge a patient from the hospital when he~had de-
        termined that such patient had recovered to the extent
        that it was nw longer aeoeaaary that he be held ln re-
        straint; aud that a patlent who had been aw dlaoharged
        from the hospital while on furlough owuld not be reaom-
        mltted to the hospital vlthout a jury trial even though
        his sanity had not been legally restored.
                  At the time of the above deolalwn there was no
        mandatory provision in the law direotlng S@mrintendenta
        to have a person'8 sanity judiciallyrestored before be-
        ing discharged from the hospital. Suah wsa one of the
        obvious purposes of House Bill 856, Acts 51st Leg., R.3.
        1949, ch.435, p.810, and codified aa.Artlcle5561b, V.C.
        3. Such Aot provides in part as follwa:       -.
                  "3ectiwn 1. l%e prwvlalwnaM$hla Act
             ahall.applyto all persons who have'been both
             adjudged of unsound mind and as needing re-
             straint by a jury under the provisions of
             Title 92, Revised Clvil3tatutea of the State
             of Texas, 1925, entitled lLuuauy-Judlcial
             Proceedings in Cases of,' and committed to
             a State Hospital in acoordaucetherewith,
             and not charged with a orlmlnal offense, and
             tb none other.
                  "Sec. 2. The provisions of this Act
             are intended to be and shall be both manda-
             tory and exclusive.
                  "Sea. 3. Whenever an luma$e of a State
             Hospital thus oommltted shall be found by the
             Superintendenttherewf to have recovered to
             an extent that he la no longer of unsound
HWU.    rt0gne   L. Kelly, page 4   (v-998)


        mind, It shall be the duty of said Superln-
        tendent to lmmedlatelycertify that faot to
        the Judge of the County Court of the county
        ln vhlah said hospital ia located, and file
        an affidavit asking for the matoration of
        said Inmate, such restorationprooeedingsto
        be heard and determined In the same manner
        as now provided by law. It shall be the
        duty of said Judge to docket and try such
        prwc?dinga at the earliest possible time.
        . . .
          That it waa the intent of the Legislature in
enaotlng House Bill 856 to provide a mandatory and ex-
aluslve method for Superintendentsof State Hospitals
to bring about a judicial restorationof a person's
aenlty before discharge from the hospital is aubatan-
Uzgi'by the emergency olause of the Act.    It is there
      :
            ~."The present anomalous and unsatisfac-
         tory owndltlwn of the law In thls:regard,
         vhereln a reowvered lunatic aan be dlaoharg-
         ed by the,Superlntendentof a State hospital
        without the necessity for a restorationprw-
        'oeedlng,but caunwt be returned to said hoa-
         pita1 without another adjudioatfwn‘wflusanlty,,~
         yet remains under the legal dlaabllltieaof
         the.,orlginaladjudlcatlwnuntll~~restwred in
         spite of hla discharge,has resulted in great
       ~.lwas znd aonfuslon to many lnnooent people,
         . . .
          In view of the foregoing it la-our wplnlwn that
one of the.prlmary objects In enaotlng House Bill 856 was
to require that Superintendentsof State Hwapltala to
have the sanity of a patient judlalally~restored before
the patient can be discharged from the hwapltal. An ex-
olusltre'methodla provided by the Act fwrthe judicial
restorationof sanity to an inmate of a State Hospital
w&w la *found by the Superlntendeuttkereof to have re-
ooverad'to an extent that he la no longer of unsound
mind.”  Section 3 of the Act requires the Superintendent
to certify auoh feat to the Jndge of the County Court of
the county in vhloh the hospital la located, and further
provides that 'suchJudgeshall doaket and try auoh rea-
toratlon proceedings at the earliest possible time. In-
sofar as the judialal restorationof sanity to a patient
throughthe lnltlatlve of the _Superlntendent is cwneerned,
Hon. Yoyne L. Kelly, page 5   (V-998)
           - .

Section 3 provides the exolusive aourt and method, and
you are so advised.
          On the other hsud, Section 4 of Howe Bill 856
oleerly owntemplatesa sitnation where a mental patient
has been granted a tempwrsryleave or~furloughfrom the
State Hospital under the prwvlsiona of Artlale 31931,
v.ck.3. It la proqided la Section 4 as follows:
         menever an inmate of a State Hospital
    ahall.have been thus aertlfied by the Super-
    lntendent thereof as recovered, it shall alag
    be the duty of said Superlntendelittd lmmed-,
    lately release said inmate, if not already gu
    furlough, from said hospital, in the same man-
    ner and subject to the asme provf.al&u+aa~la
    provided in Article 31931, Revised Civil Stat-
    utes of the State of Texas, 1925;but in no
    event shall auah inmate be discharged from
    said hospital unless and until his ~tiatora-
    tlon has been adjudged by a owurt of awmpe-
    tent jurladiotlwn. The right of rearrest
    an&reconfinement tw.auch hwapltsl'8h~llpon-
    tinue to exist as to auah inmates while oh
    furlough pending restorationproceedings in
    the Same mannhr and to the same full-extent
    as is now provided for in Article 31931."
           Section 4 of Article 5561a, V.C.3.) provides,
in part:
         “Whenever one or more ad&    cltlzkna
    of this State shall file an affldavlt with
    the County Judge of the uwun+vhere any
    one of the affiati resides alleglrrg.under
    oath that there la located within said coun-
    ty, ~wr confined within said uwunty, A person
    i&o has theretoforebeen declared tb be of
    unsound mind, or an habitual drunkard, and
    that in the opinion of afflants such person
    has been restored to his right mihd; or to
    sober hablts, and that there is no oriminsl
    charge pending against auoh person, the Cwun-
    ty Judge shall forthwith, either in termtlme
    or ln.vacatlon,set a day for a hearing to
    determine the sanity, or sobriety, of such
    person . . ."
           Thus it.18 to be observed that if a patient la
Hon. Mwyne L. Kelly, page 6   (V-998)


on furlough under the prwvlslons of Article 31931, it is
possible to hsve a judicialrestorationof sanity under
the.provisions of Artlole 5561a. In such a case the
judicial restorationis Institutedby "one or more adult
citizens of this State" by the filing of an *affidavit
with the County Judge of the oounty where any one of the
afflants resides alleslng under oath that there la lwaat-
ed vlthln said oouuty a person previouslydeclared tw be
of unsound mind and asking for a judicialrestoration of
sanity. In such a case the aanlty restorationproceed-
lug has not been institutedby the Superintendentof the
hospital, and therefore,Section 3 of House Bill 856 is
not applloable. Hwever,‘ln all cases, whether the.san-
lty restorationprwoeediug is institutedby the.3~ rln-
tendent or some private citizen, the Superintendenr of
the hospital is not authorizedto discharge the patgent
until the court where auoh proceeding is Institutedhas
judiciallydetellnlned that such perswon'ssanity has been
restored.
         !Cheabove answer to your first question makes
It uunecessaryto answer your second question.
          We believe it was the further purpose of House
Blli 856.to obviate the necessity oftanother sanity hear-
ing before a furloughedpatient, whose sanity has not
been legally restored, msy be returned to the 3t.ateHoa-
pltal.
          Article 31931, V.C.S., provides:
         We superintendentof any lnstltutlon,
    after.the examinationas hereinafterprwvld-
    ed, may permit any inmate thereof.tempwrarlly
    td leave such lustltutlwnin oharge-‘of his
    guardian, relatives, friends, orby himself,
    for a period not exceeding twelve mwutha, and
    may reoelve him when returned by any auch.guar-
    diau, relative, friend, or upon hla ovn appll-
    eatlwn, vlthln such period, vlthout any further
    order of owmmltmeut;but no patient, who has
    been charged with or cwnvloted of some offense.
    and been adjudged Insane in acoordanaewith
    the provisions of the code of ~orlmlnalprwoe-
    dure, shell be permitted to temporarilyleave
    such lustltutlwnunder any clreumstances. The
    superintendentmay require as 8 oondltlon of
    such leave of absenoe, that the person in
    whose charge the patient is permitted to leave
    the institutionshall make reports to him of
Hon. Mwyne L. Kelly, page 7   (V-998)


     the patient's cwudltlwu. Any such auperln-
     tendent, guardian, relative or friend may
     terminate auoh leave of absence at any time
     and authorize the arrest and return of the
     patient. Any peace wfflaer of this state
     shall aauae such patient to bs arrested and
     returned upon the request of any such aupsr-
     fntendent,guardian, relative or friend. Any
     patient, except such as are oharged with or
     owntioted of some offeuse, who has been ad-
     judged insane In aoowrdanoewith the provi-
     sions of the code of orlminal ProoeduPe, who
     has returned to the I~tltUtlWn~at the ex-
     piration of twelve months may be granted an
     addtlonal leave of not to exoeed two years,
     zt;;; tuperlntendent,or upwn his ~reaomen-
      .    .
          Sluoe House Bill 856, which was passed aubae-
quent'tw'Alit.iole,
                 31931, provides that no ~patleutmay be
dlaohatigedfrom s.wh hospital "until hlkrestoratlwn has
been adjudged by B oourt of competent jtiisdlotlwn"it
la our 'opinionthat a patient who 1s notmentally oapa-
ble of being restored, but who Is in such awndltlwn Bs
to no lbnger need hoapltsllzatlwn,may be furloughed,but
he may~tiotbe dlaahapged at the end of three years wlth-
out resti6ratlwnof sanity.
          Your fourth question presents s practical prw-
blem. If a patient is not returned at the end of the
first year furlough for an examlnatlwn;then the Super-
intendentgranting such furlough should cwntaat the per-
awn having custody of the patient aud'determlnewhethei.
he should bs returned to the hospital or granted an ad-
dltlwnal furlough. If such patient oannwt be located,
and he la considered as an escapee by the Superintendent,
he ahotildbe carried on the Census Rwll.aa such. If, on
the ~wgherhand, his furlough is extended';then he should
be listed as being furloughed.
          In answer to yoti fifth question you are advia-
ed that if a patient la granted a furlough or eaoapes and
is later committed to another State or Federal Hospital,
such patient should be carried on the Hospital Census as
furloughedor as an escapee as the case may l+ with the
notation made of the patient's commitment to another
State or Federsl Hospital.
Hon. Mwyne L. Kelly, page a   (V-998)


                      SUMMARY
          A sanity restorationprooeedlngwith
     reference to an Inmate of a State Hospital
     who is on furlough may be lqstlfuted~lnthe
     county where the patient la lwoated rather
     than the county in which the hospital la
     located. Arts.31931 and 5561a, V.C.3.
          A patient in such mental condition as
     to prevent a judlalal restorationof sanity,
             vered to the extent that hwapltallea-
     tlwn la
     yet $"  no longer neoesaary,may be furlough-
     ed by -theSuperintendent,but in no event may
     he be discharged at the end of three years
     without a restorationof sanity by a court
     of competent jurladlctlwus. Art. 5561b,v.c.3.
          If a patient is not returned.at'theeud
     of the first year furlough for au examination,
     the Superintendentgranting suah furlough
     should awntaot the person having custody of
     the patient and determinewhether he'should
     be returued to the hospital or Idanted an ad-
     ditional furlough. If suoh patient cannot be
     loaated and 1s considered as an eaoapee by
     the Superintendent,he should be 6aWled on
     the census roll of the hoapltal as a!+ah. On
     the other hand, if his furlough la~bxtended,
     he should be listed on the roll as being fur-
     loughed.
          If a patient la granted a furlough or
     eaoapea and la later committed to another
     State or Federal Hospital, such patient
     ~ahonldbcaarrled: on the census roll as
     "furloughed"or as an "eaoapee"as the case
     may be, w&th the notation made.of the com-
     mltal to another State or Federal Hospital.
                                   Yours very truly,

APPROVED:                            PRIm DAi'UXL
                                   Attorney General
J. 0. Davla, Jr.
County Affairs Dlvlalwn
Charles D. Wathewa
Executive Assistant                       Assistant
BA:mu
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