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                                                 January 11, 1839

        Board of Pardons and Paroles
        State of Texas
        Austin, Texas
        Gentlemenl              Attention: Mr. T. C. Anclrers
                               opinion NO. o-m
                               Bet Jurisdiction of District Court other
                               than court In which conviction was had to
                               determine qUeStiOn Of Sanity Of inSan8
                               person under sentence of death, in event
                               the sentence is commuted to life imprison-
                               ment.
             Your request for an opinion has been received by this office.
        You ask substantially the following question:
             May a person convicted of murder in Bexar County, sentenced
        to death, subsequently adjudicated insane by the Bexar County
        District Court, and at present confined in the penitentiary at
        Huntsville as an insane person under sentence of death, (because
        of the refusal of the superintendent of any state hospital for
        the insane to receive him as an insane person after an action
        to declare him sane had been filed and tried in the District.
        Court of Bexar County, the jury failed to agree, and the District
        Judge of Bexar County refused to try him again) be tried in Walker
        County for the purpose of aeternining the question of his sanity,
        should the Governor commute his death sentence to life lmprison-
        ment In the penitentiaryt
             This Department is of the opinion that commutation of the
        death sentence by the Governor rlll neither confer potential
        jurisdiction on the walker County District Court if It does not
        now possess it, nor deprive it of potential jurisdiction if it
        now possesses potential jurisdiction.
             Article ~4, Penal Code of Texas, l925, provides In part
        as follows:
             "...$0 person who becomes insane after he is found
             guilty shall be punished while in such conditionm
             Article 928, Code of Criminal Procedure of Texas, 3.925,as
        amended by Acts 1935, 44th Legis., p. 557, oh. 239, sec. 1, pro-
        vides as followsr
             @If the defendant becomes sane, he shall be brOU@t before
             the court in which he was convicted or before the District
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             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 lmpaneled in the Court before which such defend-
             ant 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 sus-
             pended,"
              The effect of this Article is to confer oonourrent jurisddct-
        ion to determine the question of sanity arising after conviction
        and jud@nent of insanity, upon either the court in which the con-
        viction was had or the distri.Ctcourt of the county In which the
        subject defendant is located at the time the allegations of his
        sanity are filed.
              Therefore it would appear that since the subject of your in-
        quiry is at present located in the penitentiary at Huntsville in
        Walker County, the Walker County District Court has jurisdiction,
        under this statute, to determine the question of the subject's
        sanity, and if he is determined to be sane, the death sentence
        must be enforced against him unless the Governor intervenes.
              In investigating this question it has come to the atten-
        tion of this Dcpartuent that th,eLegislature, while it amended
        Article 928 as above indicated, failed to amend Articles 929
        and 930 of the Code of Criminal Procedure, 1995. Prom this omis-
        sion it appears that while the procedure in such cases before the
        court in which the GOnviCtion is had is fully prescribed by such
        articles, the Legislature has failed to prescribe the procedure
        to be followed in such cases before the District Court of the
        county In which the defendant is located at the time he is al-
        leged to have become sane, in the event the suit is instituted
        in the latter county rather than the court in which the con-
        viction was had.
              However, in accordance with general rules, where the Legis-
        lature fails to prescribe rules of procedure in detail, the trial
        court is authorized to adopt reasonable rules and regulations
        relating to such procedure, and If the procedure set out in Artl-
        cles 928 and 930 is followed SO far as applicable, it is our
        opinion that will be sufficient.
              Your attention   is likewise directed to the fact that it
        cannot be determined   from your letter whether the action to de-
        clare slcKenaieSane,   once tried in the District Court of Bexar
        County and resulting   in a hung jury, is still pending.
              If this action is still pending in Bexar County, it is our
        opinion that by reason of the prior pendency of such action in
        that court, the District Court of Bexar County will have exclu-
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sive jurisdiction to determine the question of sanity unless
and until such cause is dismissed.

                                      Pours respectfully,
                                 ATTORWEY GEWZRAL OF TEXAS



                                 BY         R. T. Fairchild
                                                  Assistant


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