Hon. Fred Norris
County Auditor
Polk County                Opinion No. O-2297
Livingston, Texas          Re: Procedure for restoration
                                of sanity.
Dear Sir:
          We have your letter of April 26, 1940, request-
ing our opinion on the question as to whether It Is neces-
sary to convene a jury to hear evidence and render a ver-
dict on a trial for restoration of sanity or whether the
county judge may conduct such hearing without a jury.
          The proceflurefor restoration of sanity is pro-
vided for by Article 5561a, Section 4, Vernon's Annotated
Revised Civil Statutes of Texas, which article was enacted
by the 45th Leg., Acts 1937, p. 1049, ch. 446, and reads
as follows:
         "RESTORATION OF SANITY; PROCEDIJRE;EFFECT OF
          FINDINGS; COSTS
    Sec. 4. Upon the filing in the county court in
    which a person was convicted or in the count
    court of the county in which a person Is located
    at the time he is alleged to have had his right
    mind restored, information in writing and under
    oath made by a physician legally licensed to
    practice medicine in Texas, that a person not
    charged with a criminal offense, who has been
    adjudged to be of unsound mind, has been restored
    to his right mind, the judge of said court shall
    forthwith, either in term time orevacation, order
    said person brought before him by the sheriff of
    the county and if said issue be in doubt said
    judge shall cause a jury to be summoned and im-
    paneled in the same manner as ia provided for in
    Sec. 3 hereof and shall proceed to the trial of
    said issue, or if there appears no doubt as to
    said issue, said judge may try the same without
    the intervention of a jury, and if said person
    shall be found to be of sound mind, a judgment
    shall be entered upon the minutes of said court
       Hon. Fred Harris,   Page 2


              reciting and adjudging such fact and said~person
              shall, If then under restraint, be immediately
              discharged, or in the event-he shall be found
              to be still of unsound mind, he shall be returned
              by the county court to the place of restraint
              from which he had been previously ordered, and
              the ori,ginalorder of.commitment shall continue
              in full force and effect. All costs of proceed-
              ings of restoration shall be paid by the county."
                 We call your attention to that part of the above
       quoted statute which reads 'or If there appears no doubt
       as to~said issue, said Judge may try the same,wi.thout
       intervention of ,a jury:* The.statute ,purports to leave
       the determination of whether or not a jury shall'be called
       In such case within the discretion of the county judge.
.- .             A sanity trial, whether it be to declare a person
       Insane in the first instance or to rest&e   sanity to one
       keviouslg declared,lnsane is unquestionably a proceeding
       Involving the liberty of that person.   The Supreme Court of
       Texas insWhite v. White, 196 SW 508, held that a statute
       providing for the issue of sanity to be determined by a
       commission of SIX physicians!to be appointed by the county
       judgeswas unconstitutional-in that it deprlved'the defendant
       of his right of trial by jury as guaranteed by Sections 15,
       lg and.29 of Article1 of the Texas Constitution.
          ..
                 Under the authority of the White case, we are,
       compelled to construe the above quoted statute to mean,
       that the county judge may try the issue of restoration
       of sanity without a jury only if a jury hasbeen expressly
       waived by the person being tried.
                                       Youks very truly
                                    ATTORNRY GDUERAL OF THXAS
       APPROVND MAY 20, 1940
                                    By (Signed)'WALTER R. KOCH
       s/ GERALD C. MANN                             Assistant
       ATTORNEYGENERAL OF TEXAS'
                                     Approved Opinion Committee
       EEAW                          By RWF, Chairman
