                 THEATT~IR~'EY                  GENERAL
                                OFTEXAS




Honorable George T. Thomae
County Attorney
Howard County
Big Spring, Texas

Dear Sir:                                 opinion No. O-5699
                                          Re: Procedure to be followed after
                                          a man is charged with the offenee
                                          of forgery and pleads insanity and
                                          ia judged insane in the District
                                          court.

          Your letter of October 23, 1943, requeeting the opinion of this de-
partment on questions stated therein reads a8 follows:

          "A man charged with forgery in the District Court of Howard
     County pleaded insanity at the time of trial, and was given the
     eeparate trial upon such iesue prior to his trial for the of-
     fense, and was by the jury found to be insane, and the District
     Court duly entered its judgment accordingly. His judgment or-
     dered the defendant committed to the custody of the sheriff,
     subject to the further order of the County Judge of the County,
     and the proceeding% were certified to the County Judge.

           "As we interpret Article 932a of the Code of Criminal Pro-
     cedure, Sec. 1, Subsection b, after the proceedings have been
     certified to the County Judge, the County Judge need only issue
     an order of committment based upon the District Court's judgment
     of insanity, committing the Defendant to a State Mental Institu-
     tion.

          "However, the Superintendent of the Big Spring State Hospi-
     tal is of the opinion that it is neceesary that, after the pro-
     ceedings have been certified to the County Judge, that there-
     after the Defendant must be retried under the usual procedure
     of committment In the County Court.

          "Will you please give us your opinion upon this matter a8
     soon a8 possible a8 we have this man in jail awaiting Bornede-
     cision on this matter. We have searched for 8ome caBen upon
     this matter but have been unable to find any authority in point.

          Article 932a Vernon's Annotated Code of Criminal Procedure reads
in part as follows:
Honorable George T. Thomae, page 2 (O-5699)



           “Sec. 1. In any case where insanity is interposed aa a de-
     fence and the defendant is tried on that iesue alone, before the
     main charge, and the jury rhall find the defendant iaeane, or to
     have been inane at the time the act I.8alleged to have been corn-
     mltted, and mhall 10 ntate in their verdict, and further find the
     def andant :

          “a.  To have been innane at the time the act in alleged   to
     have been committed, but cane at the time of trial, he rhall   be
     immediately diecharged;

           "b. To have been insane at the time the act is alleged to
     have been committed and Insane at the time of trial, or Bane at
     the time the act is alleged to have been committed and insane at
     the time of trial, the court shall thereupon make and have en-
     tered upon the minutes of the court an order committing the de-
     fendant to the custody of the Sheriff, to be kept subject to the
     order of the County Judge of the County, and the proceedings
     shall forthwith be certified to the county judge who shall at
     once take the necessary steps to have the defendant committed to
     and confined in a State Hospital for the insane until he becomes
     sane.



          "When the defendant so committed to a Hospital for the in-
     Bane becomes Bane the superintendent of the Hospital shall give
     written notice of said fact to the judge of the court from which
     order of committment issued. Upon receipt of euch notice the
     judge shall require the Sheriff to bring defendant from the Hos-
     pital and place him in proper custody until the hearing may be
     had before a jury in such court to determine defendant's sanity,
     and if he be found Bane, he shall be discharged, unless he had
     been preViOUBly found to be sane at the time at which he is al-
     leged to have committed the offense charged, and which event,
     unless previously acquitted, he shall be tried for the offense
     charged."

          Article 55&a, Vernon'6 Annotated Civil Statutes of Texas, sets forth
the manner of apprehension, arrests and trial of persons who are alleged to
be of unsound mind and not charged with a criminal offense.

          Where a person is charged with a criminal offense, insanity may be
interposed a8 a defense and the defendant tried on that issue alone. When in-
sanity is interposed a6 a defense, the procedure to be followed is that set out
by Article 932a, Vernon's Annotated Code of Criminal Procedure.

          Your letter does not disclose whether the defendant was ineane at
the time of the alleged commission of the offense and insane at the time of
trial, or sane at the time the act is alleged to have been committed and
Honorable George T. Thomas, page 3 (O-5699)



insane at the time of trial. However, your letter does disclose that the de-
fendant pleaded insanity at the time of trial, and was given a separate trial
upon such issue prior to trial for the offenee and was by the jury found to
be insane. Upon such finding by the jury the District Court duly entered hia
judgment accordingly and ordered the defendant committed to the custody of
the sheriff, subject to the further ordere of the County Judge of the County,
and proceedings were certified to the County Judge,

          After carefully considering the foregoing statute in connection with
the facts stated in your inquiry it is our opinion that the County Judge should
issue an order of committment based upon the District Court'e judgment of in-
eanity committing the defendant to a State institution to be confined therein
unti.1he becomes sane. It is our further opinion that the defendant cannot
now be tried in the County Court to determine whether or not he is of uneound
mind under Article 516la supra. Stated another way? such procedure ie not
authorized by the statutes of this State. As heretofore stated, the County
Judge should issue an order of commit&sent based upon the District Court's
judgment of insanity committing the defendant to a State institution to be
confined therein until he becomes sane.

          In connection. with the foregoing we direct your attention to our
opinion No. O-424,relative to the procedrrreto be fallowed by the couuty clerk
as relates to committment under Article 927 Vernon"s Annotated Code of Criminal
Procedure and enclose a copy of the same herewith. What was said there rela-
tive to the procedure of the county clerk is equally applicable to the proce-
dure of said clerk as relates to comittment   under article 932a, supra.

                                                      Yours very truly

APPROVED NOV ", 1943                             A:TORREY GENERAL OF TEXAS

IsI Grover Sellers
                                                 By   /s/ Ardell Williams
FIRS" ASSISTANT                                           Ardell Williams
ATTORNEX GENERAL                                               Assistant

AW:ncd
encl.

                                          APPROVED
                                          OPINION
                                         COMMTTTEE
                                         BY /s/ EUB
                                           CHAIPMAN
