                                    AUSTIN.       TEXAS




                                    December      15, 1949


Hon. 0.   B. Ellis                          Opinion No. V-968
General   Manager
Texas Prison System                         Be:   Procedure   for discharging
Huntsville,  Texas                                inmates of the Texas Prison
                                                  System who have been de-
                                                  clared insane and now apt
Dear     Sir:.                                    pear sane.

                 Your   recent   letter   to this office   reads,     in part,   as
follows:

             y We desire the opinion of your department   as
        to procedure   in discharging inmates of the Texas
        Prison System who have been declared insane and
        now appear sane.-

          From your letter it appears that the inmates to whom
this question relates were adjudged insane after they had en-
tered prison but before the expiration of their respective sen-
tences.

            Article 928, Vernon’s    Code Criminal                  Procedure,        which
deals    with insanity after conviction,  provides:

              “If the defendant becomes   sane, he shall be
        brought before the court in which he was convicted
        or before the District   Court in the County in which
        the defendant is located at the time he is alleged to
        have become sane; and, a jury shall be impaneled
        in the Court before which such defendant is brought
        to try the issue of his sanity; and, if he is found to
        be sane, the conviction shall be enforced against
        him as if the proceedings   had never been suspended.”

          Article 929, Vernon’s    Code Criminal Procedure,     autbor-
izes the superintendent   of the asylum in which the prisoner    is an
inmate to initiate restoration   of sanity proceedings  by presenting
to the court a written certificate   as to the inmate’s sanity.
Hon. 0.   B. Ellis,   Page   2 (Opinion   V-968)




          In view of Article 928 and 929, Vernon’s     Code Crim-
inal Procedure,     we conclude that the superintendent    of the
asylum in which the convict is an inmate is authorized to pre-
sent a written certificate   as to the sanity of a convict-inmate
to the District   Court in the county where the asylum is located
or to the court in which the inmate was c.onvicted of the crime
for which he has been imprisoned,      and thereupon the issue of
the inmate’s    sanity shall be tried.

          If the convict-inmate   is adjudged sane, he should be
removed from the asylum and reconfined in the penitentiary
proper for the expiration of his sentence.    This is the view taken
in Attorney General’s     Opinion No. O-5721, by a former adminis-
tration, which has been cited with approval in Attorney General’s
Opinion No. V-498.

          Attorney General’s    Opinion No. O-5721 holds:   “We are
of the opinion that the foregoing discussion   discloses  a legis-
lative policy in Texas of not subjecting insane persons to crim-
inal punishment,   and that the time spent by an insane in a state
hospital should not be counted on his sentence as a criminal.”

                               SUMMARY                                       .-.

          The procedure   for the discharge  of an inmate of
    the Texas Prison System who has been adjudged in-
    sane but now appears sane is for the superintendent
    of the asylum in which the convict is an inmate to
    present a written certificate   as to the sanity of the              .
    prisoner to the District   Court in the county where
    the asylum is located or to the court in which the
    inmate was convicted of the crime for which he has
    been imprisoned,    and if upon trial, the prisoner  is
    adjudged sane, he should be removed from the asylum
    and reconfined in the penitentiary    proper for the ex-
    piration of his sentence.

                                                   Yours   very truly,

APPROVED:                             ATTORNEY             GENERALOFTEXAS




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