    Bhen a person has been adjudicatad insane by a court of oom-
    patent jurisdiction, and confined in a state institution, if
    this institution unconditionally discharges this person whose
    mental condition later becomes such that it is neoassary that
    he be reaommitted, it icrneoessarythat  the person be tried P-
    gain for .insanitybefore he oan be ooxmuittedto or oonfined in
    the,institution fran which he ~8 discharged, even though the
    original juwent   of conviction has not been set aside.

                              Hay 23, 1939



%&able    B. C. Slaglo, Jr.
Criminal Distriot.Attorney.
Sherman, Texas

Dear Sirs                     Opinion Bo. O-655
                              Rer Can the trial oourt issue an
                                   alias oemmitment on the orig-
                                   inal jud*nexrtof insanity, or
                                   must the person be tried again
                                   for insanity?

           m are in reoeipt of your letter of April 24, in which you re-
quest an opinion on the following question:

          *Vhen a party ha6 been oonvioted of insanity and
    sent to a etato institution, this inrrtitutiondischargee
    the prty and the party's mental oondition later beaom~s
    suohthat it ia neoeraary that they be reoommittad, the
    original judgment of aomiotion not having hen set aside,
    oan the trial oourt 0au.w to ha issued an alias c-it-
    ment on the original judepnent,or is,it neoesaary that
    the party be agaia tried?

           Ilk are ammning fran tiie'abxv faoih a proper adjudication of
insanity in a court of ocerpetentjurisdiotion, an original permanent corn-
mitment to the state institution, and a subsequent unoonditional disoharge
by said institution of the party whose senity was in question.
                                                                                    .   .




Hon. R. C. Slagle - Pago 2 (O-665)



           The ~WCIPfiinent questions of law raised are (1) the povsr of
the state institution to discharge unconditionally m insane psrson tio
has recovered in the opinion and best judgment of the institution officialsJ
and, (2) the power of the court of original jurisdiction to re-c-it    on
the Original judgTnentof insanity a psrson unconditionally discharged  by a
state institition as restored to Smity,  but who subsequent to th., discharge r~-
lap08  mentally- to such 811extent that re-ccgrmibent is necsssav.

           To **Y the le**t, the statutes oftha State of Texas in relation
to the authority of 0 state institution for the insane to discharge a Orson
who, in the judgment of the officials, has been restored to a sound mind,
are in an lmsatisfaotory and doubtful condition-

           m find no direot statutory authorization for the discharge upon
rea~vsry of one permanently oommitted to a hospital for the insane after
proper adjudioption of unsomd mind by the institution itself.

           Section 4 of Artiols 5561a of Vernon's Annotated Civil Statutes
provides the prooedure for obtaining a judicial order of discharge where a
person not charged with a criminal offQlse is restored to Sanity.  It reads
as followsr

             "Upon the filing in the oounty court in which a person
     ms ootioted or in the county oourt of the aounty inahiah a
     person is located at the the he is alleged to have had his
     right mind restored, information in writing and under oath
     made by a physioian legally licensed to praotice medioiw in
     Texas, that a person not charged with a oriminal offense, who
     bs been adjudged to be of unsound mind, has been restored to
     his right mind, the judge of said oourt shall forthWith, eith-
     er b term tima or vacation, order said person brought before
     hh by the sheriff of the county and if said issue b8 in doubt
     said judge shall cause a jury to be suarmoned and impaneled in
     the 8ame manner as is provided for in Section 3 hereof and
     shall prooeed to the trial of said issue, or if timareappears
     no doubt as to said issue, said judge may try the 681110 without
     the jntervention of a jury, and if said person shall be found
     to be of sound mind, a judgment shall be entered upon the min-
     utes of said court reciting and adjudging such faot and said
     persons   shall, if then mder restraint, be immediately dis-
      charged, ar in the event he shall be found t0 be still Of Un-
      sound mind, he shall be returned by the county Court to the
     place of restraint frQn whiah he badbeen previously ordered,
      and the original order of ocmmitmsqt shall continue in full
     force and effect. &.l costs of p?ooeedings of restoration
      shall be paid Iy the county.".
Hon. R. C. Slagle - Page 3 (O-665)



           It will be noted that the above section provides that in the
event a person under restraint is adjuged to be of sound mind he shall
"if then under restraint, be immediately discharged." Them is no dis-
cretion in the officials of the institution of confinement. The judgment
of sanity would be the offioial authority for such disoharge, and notice
of sam+ served upon the asylwn authorities would open the door of free-
dom to the inmate restored to sanity. Under Section 4 of Article 5561a
it would appear that nothing lass than en adjudication of sanity would
be effeative to bring about the permanent discharge af an insaw person
oonfined in a state institution, unless other statutory authority for the
latter's release by the institution of incarceration can be found in the
lawa of the State.

           We have been unable to find any direct statutory authorization
for discharge of a person of unsound mind by the officials of a state in-
stitution in whioh the insane party was prmanently confined by an order
of the court. Seal-Jon2 of Article 31930, Vernon's Annotated Civil Stat-
utes (Ads 1937, Forty-fifth Legislature, p. 542, oh. 268), oonoern8 the
release of temporarily camitted patients, as followsr

          *A person who has been temporarily oommittod w the
    Cow    Court to a State hospital for obsemation r&&or
    treatment, may be released, discharged, or furloughed by
    the hospital superintendent at any time during the oommit-
    ment period. Said patient shall la automatioally discharg-
    ed on the expiration date fixed in the Court16 order and the
    hospital superintendent shall thereupon Immediately release
    such ptient, and any discharge from said superintendent
    of said patient shall operate to fully set aside in all res-
    peats said order of commitment by the County Court."

           As pointed out above, we have assumed that the present question
is not based on a temporary commitment of the lunatio. Nor is the question
in our'opinion based on I grant of temporary absence to the inmate. Arti-
cle 31931, Rev&d   Civil Statutes of 1925, authorizes the superintendnet of
an institution of'confinement to grant temporary leaves of absence to in-
mates on certain well defined conditions. It does not authorize a disoharge.

           &ticle   31931 providesr

           "The superintendent of any iwtitution, after the ex-
     amination as hereinafter provided, may permit any inmate them-
     of temporerily to leave such institution in charge of his guar-
     dian, relatives, friends, or by himself, for a period not ex-
     oaeding twelve months, and may rboeive him whenreturned by such
     guardian, relative, friend, or upon.his own application, within
     &oh period, without pny further order of commitment, but no
     patient, who has beeq,,&arged with, or oonvioted of, some offense
     and been adjudged fnsane in ~coorda.uoawith the provisions of the
     cods of oriminal prooedure, shell be permitted to temporarily
Hon. R. C. Slagla - Page 4 (O-665)



     leave such institution without the approval of the governor,
     nor shall such permission terminate or in any way affe& the
     original order of commitment. The superintendent may require
     as a condition of such leave of absence, that the person in
     whose charge the patient is petitted to leave the instituti-
     on, *hall make reports to him of the patient's condition. by
     suah superintendent, guardian, relative, or friend may termin-
     ate such leave of absence at any tima and authorize the arrest
     and return of the patient. Any peace officer of this State
     *hall cause such patient to be arrested and returned upon the
     request of any such superintendent, guardian, relative or
     friend. by patient, except such as are charged with, or con-
     victed of some offense, and have been adjuged insane in accord-
     pnoe with the provisions of tha oode of driminal procedure,
    who has returned to the institution at the expiration of twelve
    months mpv be Branted an additional leave by the superintend-
    ent or upon his reoommehdation."

           The statute states that temporary leave shall be *for a period not
exceeding twelve months," and that artypatient,with the exoeption of insane
criminals, "who has returned to the institution at the expiration of twelve
months may be granted an additional leave by the superintendent, or upon his
reoommendation."

           It will be observed that the above quoted se&ion states that the
superintendent may rs-admit the grantee of the leave "without any further
                     within the twelve months period. The statute is silent
order of ocmrmitanent"
as to whether or not a further order of oommitment is necessary if the in-
mate overateyshis tlrslva-monthleave of abaenoe-with or without the pennis-
aion of the saperinttendsnt,end if a further order is neosssarywhether it
can be issued on the original judgment or whether a new trial and new order
is necessary.

           I?hilethese questions are not involved in this instanoe, it is im-
portant to refer to the opinion of this depPrtment rendered on February 26,
1931, by Ronorable Albert EIooper,assistant Attorney General, addressed to Dr.
Chps. W. Castnor, Superintendent of Wiohita 'FallsState Hospital, holding
Article 31931, supra, could not be re-admitted to the institution from which
they had taken leave, if they did not report at the end of the twelve months
period designated in the statute. Furthermore, it 1~1sheld that it was the
duty of the superitisndent of state hospitals, when a pstisnt remains or is
kept out of P state hospital for a longer period than twelve months, to dis-
charge suoh patient,

           WE hava been unable, as preyiously indioated, to find any dire&
authority in the statutes of Texas relating to insanity whereby the superin-
tendent or officials of a hospital for the insane could discharge a person
adjudicated insane with such finality as to require a reOOmitm%h   and addi-
tional judicial proceedings.
-   -




        Ron. R. C. %agle   -- Page 6 (O-665)




                   We admit that Article 31833, Revised Civil States, 1925, infers
        that the officials of a state hospital have such power. Said section reads
        es follows:

                  "No patient in a State hospital shell be discharged there-
            frgn or permitted to leave on a temporary visit without suitable
            clothing; and the Ibard of Crntrol may furnish the same, and such
            an amount of money, not exoeeding twenty dollars ($20.00) as they
            may oonsider necessary. Inquiry shell be made into the future
            situation of every patient about to be discharged or permitted to
            be temporarily absent, and precautionary medical advice shall be
            given him. Bo patient shall be discharged or penuitted to be tem-
            porarily absent fran any institution without a personal examina-
            tion of his mental o&dition made by one of the hospital physi-
            cians within forty-sight hours of his departure, the result of
            whioh shell be entered in his case rsoord."

                   The above quoted Arbiole refers to disoharge as if the Legisla-
        ture assumed that such power wus vested in the institution of confinement.

                   The-Texas authorities, moreover, throw little light upon the
        question of the authority of the institution to discharge a patient parma-
        nently.

                    In VfsstLmubsr Co. vs. Henderson (1922), 236 S.W. 710, the fol-
        lowing   propositi6n of law is anounoedr

                   "The rule is ~11 estebliehed that when one has been
             adjudged tinsaneand ocrmmittedto the insane asylwn, ha oon-
             tinues to be insane until disoharged. 22 Cyc. 1116; 14 R.C.L.
             622."

                   In the ease of Mitohell vs. Stanton (lQll), 139 S.H. 1033, it
        was held that adjudication of insanity by P court of jurisdiction was in
        the natum of a proceeding in rem fixing status of the party involved:
                  I . . . the appsllee was adjudged a lunatic by a coui-t
            of aompetent jurisdiction, and under and bv virtue of such
            judgment was ccmrmittedto the lunatic esylwn on April 21, 1667,
            where he has continuously ever since been held ad a prisoner
            by the authority of the Stats of Texas. Suah adjudication
            was in the nature of a prooeeding in rem, fixing the status
            of appellee as ~a lunatic, and, pnsofar as it affaots his
            rights, is notice to everyone while it subsists and iS in
            force by imprisonment of the lunatio."

                   Since we do not find any express provision of our statutes au-
        thorizing or pro&biting the final discharge of a patient committed to the
        asylm by the officials thereof without a oourt order under Section 4 of
        Article 5561a, we must of necessity oonstrue the present statutes.
Hon. R. C. Slagls, Jr., Page 6 (O-685)



           It is our opinion that the proper officers of the asylm would
have the power to disoherge a reoovered patient with the effect of nulli-
fying the order of commitauent.

           Cur authority is the ease of Byers vs. Solisr, 16 Wyo. 232, 93
Pac. 59 (1907), Supreme Court of Wycmingr

           The fads of this case areate the same situation desoribed in
the letter of request. In April, 1893, Byers was legally caumitted to the
l$omin" State Hospital for the insane by the district court of Albany Coun-
  . Eight years later he was released and discharged to the control of his
mother, who took him to Michigan. Having become insane again in his moth-
er's custody, the l&ohigan authorities returned him to Wyoming where Solier,
the super3ntendent of the state hospital, took possession of him again with-
out a new trial. Petitim for habeas oorpus was filed for and on behalf of
Byers.

           At ths time this oaae was decided, the Wyoming statutes closely
paralleled the present Texas law in regard to insane persons. There was no
express statutory authorization of permanent disoharge by the insane asylrrm,
and no provision for re-oaitment   of P person disoharged end later ralaps-
ed into insanity. Seotion 4894, Revised Statutes of 1899, called for an
adjudication of sanity by jury or the court when the question for a resto-
ration of oapacity if the party was held sane. The court, after expressing
oonsiderable doubt, held that the insane asylum possessed the power of per-
ment discharge of e person its offioials oonsidered restored to sanity, al-
though it did not decide the matter of whether.restoration of capacity would
follow a discharge by the asylum, in the abmnos of express statutory author-
ity for suah disoharge.

           We quote and adopt the language of the court in respect to the
matter of the discharge of e party restored to sanity by a state institu-
tion;
           "In the absence of a statute making positibe regulations
     for a voluntary discharge, must a patient, onas committed to
     the asyllan,be retained there until released upon habeas corpus,
     or by SQR~ other authorized judicial proceeding by which a re-
     lease may be enforced; or, without a judicial investigation,
     may the officers in oharge of the institution disoharge one aom-
     mitted to it when they ard able to determinethat a proper degree
     of recovery has occurred to justify it, or upon the happening of
     any condition rendering the discharge in their judeant advisable?
     We are of the opinion that in the absence of P statute making oon-
     trary regulations or restriot~ons, or expressly or impliedly
     vesting exalusive authority in the premises elsewhere, the control-
     ling authorities of the institution, to carry out the obvious pur-
     pose of its establishment, must be held to possess the power to
     voluntarily release a canmitted party upon his recovery; or, in
     the exeroise of a reasonable discretion and sating in good faith,
     whenever the oiroumstanoas are daemed,.properto justify such a
Hon. R. C. slag10 - 'age 7 (O-685)



     course, to release a patient who may not have fully recov-
     ared, either unoonditionally, or temporarily and upon ex-
     pressed conditions. That the state board and the superin-
     tended have found the exercise of such power to ta neons-
     sary, in the present state of our statutes, is shown by the
     averments of the answer in this case, If that should be
     deemed too great a pewer to vest in the hospital authoriti-
     es without restriction, it is P matter easily rarmediedby
     legislation. It is clearly not impossible or even improb-
     able that in occasional case" the character of the mental
     disorder of an innate may be such that his care out of the
     institution by relatives or friends willing to assume the
     burden thereof will be proper without endangering the wel-
     fare of the patient or the safety of the public."

           'Rk,
              feel that in Texas, although there is no express authoriea-
tion for an unconditional disoharga by the institution, still the statutes
considered, in the absence of specific statutory restriction, impliedly
authorize disoharga by the state institutions. As suggested in the Wycming
case, if this is too great a power to vest in the insane asylm br'hospital
authorities, the situations may be remedied easily by the Legislature. As
a matter of polioy, we do not anticipate any endangering of the public from
this oonstruotion of our statutes.

           The principal quo&ion in the case oonoerns the necessity of a new
trial for a party who has been discharged and later beaomes insane again.

           The case of Byers vs. Solisr, supra, is a direot authority on this
point, and we follow its decision unqualifiedly in the oase of an unoondition-
al discharge.

          Quoting from the opinion:

          "Having concluded that the authorities in control of
    the hospital for the insane may in good faith discharge a pa-
    tient ocmrmittedthereto, m are next to inquire into the ef-
    feat of au unoonditional discharge,,such as ooourred in 1901
    by the disoharga of the plaintiff in this case. I% refer to
    that discharge as unconditional, for we think the oircumstan-
    ces show it to have been such. That any condition was at-
    tached to the disoharge is net disclosed bythe ansmr or the
    evidenoe. It may have been and probably was confidently ex-
    peotsdthat the patient would he kept out of the state, or at
    least safely in the mother's custody, but it does not appear
    that the release of plaintiff was conditioned upon that being
    done. In view of the matter heard and determined upon a lun-
    acy inquisition under the statute providing therefor, and the
    effect of an order and comnitmsnt for the restraing of the
    party found upon such an inquisition to be of unsound mind or
    incompetent, the conclusion seems to be inevitablethat the
Hon. R. C. Slagle, Jr* - Page 8 (O-685)



    hearing and commitment will have served their purpose, and
    ceased to be effectual, after an unconditional discharge
    fran the place of lawful restraint by competent authority.
    If circumstances thereafter should arise seeming to requim
    or justify a renewal of the custody and restraint, in the
    interest of the person or the public, another hearing ought
    to be had to determine the question. Great injustice would
    often, if not generally, result from 8 different rule, even
    if the legal rights of the party to be personally affected
    were not to be considered. But P parson charged with inspn-
    ity or other mental infirmity has the same legal right as
    any other citizen to olpimthe benefit of constitutional and
    statutory provisions affecting his personal liberty."

           See also In ru Thorpe, 64 Vt. 398, 24 Atl. 991; Gresh's Case,
12 Pac. Co. Ct. R. 295.

           While wu am unoertain as to the civil rights of P person upon
whaa is affixed the status of insanity in P proceeding in rem, to refer to
the Texas case of Mitohsll VS. StPnton, supra, we recognize a right of per-
sonal liberty even in a person aharged with insanity or mental infirmity
as long as the safety of the publio is not jeopardized. The nycrningcourt
recongizes tinexception to its ruling that the asyl\mrauthorities are not
vested with authority to rsoomnit a person preyiously discharged without a
legal inquiry provided by law.  This is the case of one violently and dm-
garously tinsane. Such a person may be temporarily oonfined until the neo-
essary legal prooeeding OM be had. The court said:

                "Gsnerally, it is permissible, pdthout warrant
           or explecrsauthority, to oonfine temporarily a per-
           son disposed to do mischief to himself or another
           person, until the proper prooesdings 0011be institut-
           ed to'haw thb'question of his sanity determined. In
           such copse, the restrain beacmes necs6cM-y and, there-
           fore, proper, both for the safety ofthe party himself
           and for the preservation of the publio peaoe. 16 Am.
           & Eng. L. (2nd Ed.) 596."

           The above axoeption would hew effect    in MY case. The danger-
ous lunatic has no InaXiienableright to roam the   country et will and terror-
ize the pupulaoe. He must be confined until the    legal machinery designed to
see that he receives justice and the benefits of   dub process of law is set
in motion.
Ron. R. C. Slagls, Jr., Page 9 (O-665)




           It is our opinion that when a person has been adjudicated
insane by a court of competent jurisdiction, and confined in a State
inakItution, if this institution unconditionally discharges this person
whose mental condition later becomes such that it is necessary that he
be re-conrmitted,it is neoessary that the person be tried again for in-
sanity before he can be ccamnittedto or confined in the institution
fran hioh he mas discharged, even though the original judgment of con-
viction has not been sat aside.

           Trubting that the above fully answers your inquiry, we are


                                               Yoursverytruly

                                         ATTORNEY GEN%RAL OF TEUS

                                          BY
                                                s/ wok stout
                                                   Dick Stout
                                                    Assistant



           This opinion has been considered in conference, approved, and
ordered reaorded.

                                                   s/Gerald C. %nn
                                                    GERALD C. b%NN
                                                ATlORNNY GEfNERALOF TEXAS




                                    .
