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                          Aurwrx~ aa.TEXAS

                             January 23, 1963

        Dr. Sam A. Hoerster, Jr.    Opinion No. C-4
        Superintendent
        Austin State Hospital       Re: The effect of discharge from a
        Austin, Texas                   mental hospital of a patient bJho
                                        has been adjudicatedby a court
        Dear .Dr.Hoerster:              to be mentally incompetent.
                  You have requested an opinion from this office cdncern-
        ing the effect of discharge from a mental hospital of a patient
        who has been theretoforeadjudicatedby a court to be mentally
        incompetent.
                 This office held in Attorney General's Opinion No. WW-
        796 (1760) that:.
                  1'.. . a discharge from a mental hosg+t;l,
             does not, in itself effect a restoratia
             mentally IncompetenCperson. Such act, that is
             a discharge from the mental hospital, merely
             'terminatesthe presumptionthat he is mentally
             incompetent.' An action in the county court is
             still necessary to addudicate that question. . . .I'
                  This holding in Attorney General's Opinion No; WW-7%
        (1960) was made upon the question of:
                  "3. If a person was adjudged to be 'mentally
             incompetent'by~a court after the effective date
             of House Bill No. 6 and was discharged from the
             state hospital after that date, is the certificate
             from the superintendentof the state hospital suf-
             ficient to restore the civil rights of that indi-
             vidual so that he may receive, endorse, and expend
             his public assistance check without a guardian or
             without a judicial.determination of his restora-
             tion?"
                  The background information concerning the uestion
        posed in Attorney General's Opinion No. WW-796 (19607 is most
        important and a portion thereof is set forth as follows:
                  ". . . it has been the policy of the Depart-
             ment of Public Welfare to require, with respect to
             all three classes of persons above mentioned, ei-
             ther the appointment of a guardian for the incompe-
             tent, or an order of restorationfrom the court, as

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Dr. San A. Hoerster, Jr., page 2   (C-i!. )


    a prerequisiteto the making of public assistance
    payments. It is observed that the Department
    adopted such policy merely in pursuance of its
    general duty and authority to administerprograms
    of public assistance effectivelyand in accordance
    with the purposes of the respectiveenabling stat-
    utes,.purposeswhich would doubtless be thwarted
    in case of a recipient who was, for some reason,
    incapable of receiving and disposing of his assist-
    ance check in a reasonable and responsiblemanner.
    Sincnr,
        e       01
    express prohibition,Federal or State, against mak-
    ing P YM t     f u blic assistancefunds to Persons
    deemeadt?bi &coznetent. the following oninion is
    confined to the lenal effect of a discharge of a
    person from a mental hospital, under the Texas Man-
    tal Health Code." (Emphasisadded).
          It has been suggested that there was a failure in
Attorney General's Opinion No. NW-796 (1960) to consider the
applicabilityof Article 5547-100, Vernon's Civil Statutes, per-
taining to the question of competency. In additions it has
been suggested that there is a specificdifference in the word-
ing between Article 5547-83,Vernon's Civil Statutes, and Arti-
cle 55&7-100,Vernon's Civil Statutes, as to the definitive
nature of terminatingincompetency.
         Article 5547-100 &the     Mental Health Code provides in
part that:
          II
                  the discharge under this Code of any
     patieni go&itted to a mental hospitaltunder the
     prior law ;n-
             comuet n . . . .,t
          Article 5547-83of the Mental Health Code provides in
part that:
           "(a) The judicial determinationunder this
     Code that a person is mentally incompeteitp-&E
     a nresumotionthat the nerson continues o e mea-
     tallv incomuetentuntil he is discharsedfrom the
     pe
      n3.h
        ta    0 it
     re-determinedbv a court.
           II
            . . .
          'l(c) When any person under the provisionsof
     this Code shall have been committedas a patient to

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Dr. Sam A. Hoerster, Jr., page 3   (C-4   1


    a mental hospital for any period, regardless of
    duration by order of a county court, and shall
    have been discharged and released bv such hosuk-
    tal. such Derson mav file awslicationwith such
    countv court for an order adjudicatingthat he is
    not now mentallv ill or incometent, to which
    application shall be attached a certificationat-
    testing to such facts, signed by an attending phy-
    sician at the hospital to which such patient was
    committed. The court raave ter an order mantins.
    such auulication; but, in zonnection therewith,
    he nay conduct a hearing and summon such wit-
    nesses as in his judgment may be necessary to sat-
    ify him as to the merits of the application."
    (Emphasisadded).
          Articles5547-81,Vernon's Civil Statutes, provides
that:
          11
               .   .   .


          l'(b) The discharge of a patient who has been
     found.to be mentally incompetentterminates the
     presumptionthat he is mentally incompetent."
          Article 5$7-83 was amended by the Legislaturein 1959
(House Bill 364, Acts of 1959, 56th Leg.; Regular Session, chap.
409, page 8871, and section cc), set forth~above,was added to
the existing prwisiops of Article 5547-83. The emergency clause
in House Bill 364 provides that:                               \
          "The fact that there is not now any provision
     for judicial restoration of persons adjudged men-
     tally incompetent under the Texas Mental Health
     Code, creates an emergency. . . .'I
          As was stated in Attorney General's Opinion No. WW-
796 (1960), prior to the adoption of the Mental Health Code it
was well settled that the adjudicationby a court that a person
was of unsound mind or mentally incompetent,establishedthe
status of that person as of that time, and that such adjudice-
tion gave rise to a presumptionthat sucha person so adjudicated
continued to be of unsound mind, or mentally incompetent,until
such presumptionmight later be rebutted in a proceedingbrought
for that purpose.
          In the case of Elliott v. Elliott 208 S.W.2d 709 (Civ.
App. 1948, error ref. n.r.e.), it was statei by the court that:
.   .




        Dr. Sam A. Hoerster, Jr., page 4   cc-4   1


                 "The implicationof the holdings in W lli MS
            v. Siaair-Prairie Oil Co, 135 S:W.2d - 211   Civ.
                                                     -i+---
                                                     -
            App. 1939 error ref. judg;. car.); i+ox)fTel.
            White, &S.W.2a     3$ (Civ.App.1943 erro: ref.
            w.o.M.); Bolton v.   ewart, 191 S.W.2d 798 (Civ.
            App. 1945); and Joy v. IVY 194 S.W.2d 411 (Civ.
            App. 1946), is that an adjidicationof insanity
            by the county court raises a continuousrebuttable
            presumptionof insanity, and that only a judgment
            of restorationof sanity, entered in a proceeding
            brought for that purpose, will be sufficientto
            conclusivelyremove such rebuttable presumption."
                  Article 5547-81,Article 5547-83(a),and Article 5547-
        100 were contained in the original enactmen~tof the Mental Health
        Code and clearly indicate that it was the intention of the Legis-
        lature that the discharge of a patient from a mental hospital
        should merely terminate the presumntion that he is still mentally
        incompetent. However, if the Legislaturehad intended that such
        dischargewas also to act as a restoration.ofsanity or compe-
        tency, the enactment of Article 5547-83(c),which provides for
        adjudicatingthat one who has been committed to a mental hospital
        and thereafterreleased is no longer ~mentallyill or incompetent,
        would be unnecessary.
                  Insofar as the phrase contained in Article 5547-100,to
        the effect that II..    the dishcarge under this Code of any pa-
        tient committed to a dental hospital under the prior law termi-
        nates any presumptionthat he is mentally incompetent. . . .'I,
        is concerned,we are of the opinionthat a considerationof this
        phrase would in no way change the result reached in Attorney Gen-
        eral's Opinion No. WW-796 (1960). The previouslyquoted portion
        of Article 5547-100merely indicates that the effect of discharge
        from a mental hospital of one committed prior to the enactment of:
        the Mental Health Code will be the same as the discharge of a
        person committedafter the enactment of the Mental Health Code.
                  Consequently,we are of the opinion that a discharge
        from a mental hospital does not, in itself, effect a restoration
        of a mentally incompetentperson. The discharge of a person from
        a mental hospital merely terminates the presumutionthat such per-
        son is mentally incompetent. Therefore,we~hereby re-affirm the
        holding reached in Attorney General'sOpinion No. w-796 (1960).
                  As was mentioned heretofore, the result reached in
        Attorney General's Opinion No. wW-796 (1960) was confined merely
        to the legal effect of a discharge of a person from a mental hos-
        pital under the Texas Mental Health Code and did not deal with
        the issue of what requirementsas to mental competencythat the
    .   .*   .
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                 Dr. Sam A. Hoerster~,Jr., page 5    (C-4     1


                 Department of Public Health might decide were necessary,as a
                 policy matter,,prior to the Making of welfare payments to a per-
                 son who had previously been committed to a mental hospital.


                           Under the Texas Mental Health Code a discharge
                      from a mental hospital does not, in itself, effect
                      a restoration of a mentally incompetentperson.
                      Such discharge merely terminates the presumption
                      that he.is mentally incompetent. Insofar as perti-
                      nent Attorney General's Opinion No. WW-796 (1960)
                      is re-affirmed.
                                            Yours very truly,
                                            WAGGONER CARR
                                            Attorney General of Texas


                                             P b-
                                            Bya--   Pat Bailey
                                                            ";I-
                                                    Assistant
                 APPROVED:
                 OPINION COMMITTEE
                 W. V. Geppert, Chairman
                 Scott Garrison
                 Ernest Fortenberry
                 Scranton Jones
                 APPROVED:
                 Stanton Stone
                 Executive Assistant
                 APPROVED:
                 Waggoner Carr
                 Attorney General




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