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                              ORNEY         GENERAL

                          0       P?=XAS




                           October 24, 1958

    Mr. 0. B. Ellis, Director
    Texas Department of Corrections
    Huntsville, Texas
                                   Opinion No. ww-518
                                      Re:   Computation of time to be
                                            credited on the term of a
                                            prisoner while he is con-
                                            fined In a State mental
    Dear Mr. Ellis:                         hospital.
            Your request for an opinion cqncerns the question of
    whether the provisions of House Bill 906, 55th Legislature,
    Regular Session, 1957, which repeals all existing statutes
    and makes provisions for prisoners to receive credit for t.ime
    while Inmental institutionsJ be retroactive In the case of a
    prisoner who was in Rusk State Mental Hospital at the time the
    Bill was passed.
            Section 17 of House Bill 906, 55th Leglslature,Regular
    Session, 1957, chapter 486, at page 1416, also Article 932b
    of Vernon's Annotated Code of Criminal Procedure,,provides:
                "The time a prisoner is confined in a
           State mental hospital for treatment shall be
           considered time served and shall be credited
           to the term of his sentence, but he shall not
           be entitled to any commutation of sentence for
           good conduct while he is under treatment in a
           mental hospital."
    The effective date of this statute was January 1, 1958.
            In our Opinion No, O-5721, addressed to the Texas
    Prison System, Bureau of Records and Identification, Hunts-
    ville, Texas, we passed upon the question whether inmates
    of the Texas Prison System who may at various times be ad-
    julged insane and committed to State institutions for the
    insane are entitled to the benefits of the commutation of
    time as prescribed by law.
            In answering that question, we said:
Mr. 0. B. Ellis, page 2 (W-518   )


              "We are of the opinion thatthe
         foregoing discussion dislcoses a legis-
         lative policy In Texas of not subjecting
         insane persons to criminal punishment and
         that the time spent by an insane In a
         state hospital should not be counted on
         his sentence as a criminal."
        This opinion was based primarily on the following
authorities:
              Article 2 of the Penal,Code provides:
              "The object of punishment is to
         supress crime and reform the offender."
              Article 34 of the Penal Code in part reads:
              11
                      No person who becomes insane
         after he is'found guilty shall be punished
         while In such condition."
        Articles 925 and 928 of Vernon's Code of Criminal
Procedure respectively provide:
              "Upon the trial of an issue of
         insanity, if the defendant is found to
         be insane, all further proceedings in the
         case against him shall be suspended until
         he becomes sane."
              "If the defendant becomessane, he
         shall be brought before the court In which
         he was convlkted 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 be-
         fore 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."
        Also see Article 6184 L, Vernon's Civil Statutes, which
provides for allowing convicts overtime for good conduct.
         Section 16 of Article I of the Texas Constitution pro-
vides:
c      -




    XI-. 0. B. Ellis, page 3 (~~-518)



                  “ib bili of attainder. ex nest
             facto law, retroactive law-or any law
             impairing the obligation of contracts
             shall be made.!' (lkphasis added.)

            In 39 Texas Jurisprudence,        page 54, we find the follovr-
    ing language:
                        11
                     . . t A statute will not be
             applied or construed retrospedtively or
             given retroactive operation, so as to
             affect existing rights or create new
             obligations and impose new duties as to
             past transactiors,unless It clearly
             appears, from its terms or at least by
             fair implication, that the Legislature
             so intended.   On the contrary, a statute
             is generally held to operate prospectively
             unless a contrary construction is required
             by the terms or the nature and object of
             i-.!l
               e law . It is always presumed that a
             ;statute, not relating merely to remedies
             and modes of procedure, is intended to
             operate prospectively, and all doubts
             are resolved in favor of such construction."
             (Giting City of ,Ft. Worth v. Morrow, 284
             ,; . Y .   275 .
             _,
             L ;         ic our opinion after examining Rouse Bill 906,
            7 .::$.:::!n  'i!...
                             7('C) Regular Session, 1957, that the Legislature
    ,'~: :I
          ~.,i-,-,t  intend either clearly or by fair implication to make
    ..,LL.yc ;t,-.t-utc       retroactive in operation.   Even if the statute
     :!::: rC?;;x::ct4vein operation the retroactive part would be voi,,       '3
    :>) ,-;,,-,
             1;.
               cj <p v%olat~ve of the Texas Constitution, Article IV,
     -:.::,yy.n:>    :I.,y]:j,chplaces all matters of clemency, reprieves,
     .:ol.:1,:1~::-11t:i.(:!:::
                            and pardons, 1.1~ the Governor.   (See Ex Parte
     ;,;~Y~;~is:lo:,,   152 s.:!. 2nd 289; Gilderbloom v. State, 272 S.W. 2nd
    ?'       )t         is our opinion that the time spend by prisoners who
    i.;~~‘~:   :iLn ;   state mental hospj.tal prior to January 1, 1958, does
     ;~!,'I<:(>i?i;;C LX&X- Section 17 of House Bill 906, 55th Legislature,
       :y~.~~:.y;>.- :~egs:uon,1957; that the time spent by prisoners after
     ,T~Y.yJlJ~-q?   1~, rgqj, in such state mentz.1 hospitals would come under
     ;:?oction3.7of- House           Bill 906, 55th Legislature, Regular Session,
     1?_;7.
Mr. 0. B. Ellis, page 4.      mw-518)


                              SUMMARY


              Section 17 of House Bill 906, 55th
              Legislature, Regular Session, 1957,
              is not a retroactive statute which
              would give prisoners credit for
              time spent while under treatment in
              a state mental hospital prior to
              January 1, 1958.

                                     Yours very truly,

                                     WILL WILSON
                                     Attorney General of Texas




LEP:mfh                                 Assistant


APPROVED:

OPINION COMMITTEE
Geo. P. Blackburn, Chairman

J. Milton Ri~chardson
Jack Goodman
Wm. R Hemphill
Dean Davis
Morgan Nesbitt

R$?IEW$DVFCRTgr,TTORNEY    GENERAL
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