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‘Y         OFFICE    OF THE   ATTORNEY    GENERAL   OF   TEXAS

4                                AUSTIN




     lioaarabldWaver B. Baker
     Ghairman, State Board of’Control
     Austin, Texas




               Pau rrakothe Sol                     for an opinion from
     this department, t(b-
                                                 csuao of the mergenc7
     ‘Of 8ar allap                                   state Board of Gon-
      trol h&a enc                                  tnixlag fresh meat
                                                    8 of the state of
                                           08 pounds monthly. The big
                                           aquenm3, ve lnitiatsd a plan
                                           of and thus fw ve ham been
                                          n a reasonably satisfactory
                                          of nonq to tha State.
                              o carry on tho program in the most eaonoml-
                              unbent on U.U to obtain aa nawh reed stuff




     in the viobity  of each institiutionthat could be gathered aJ
     s~lplsysos;md patients of our inatltutione’on a bisfe OS a
     perotstage of the orop to the owner and a peroentage to the
     institution suppying the labor, or an some other basis.
                r%inoe the eatabliehmfmtoi the eleemo~        e7stam,
     perhaps m$ of the aatual work performed on the grwnde, in
     the gydrjns,  on the farms-ti doirJrhaa bea done b7 prrtient
     labor.   111 p8ycblatristoagree that proper17 superrised lnbor
     Pollreorsation aotually bemfit mpnJ patients mOc0thaa anf
                     --.




Uozuwable ~eaverD.Baker    - peg82



other thing that mu be done for them. Ho patient or in-
aate OP one OS our schools Is ever required to perf+om
any lnbor against his will, although the mntal patients
msy not logally be able to &ire eonsent, nmertheless
they do km8 uhat they are do%ng sod enJOy the work. It
is figured that 6 patients will do the uork of on% ordinary
laborer, whhonthe7 ere proper17 Oared for b7 the emplogeee
of the state;
           #The State Board of Control would liko very mmh
to utllise, an soon as possible, aneihereafter, the employ-
ees, patients and Innate5  Of Our aohoole, on garden and ag-
rioultural  laad6 ad)aoent or near eaoh Institution for the
purpose or obtaining feed foe %omcatio livestock or food
far persons in our custody  on some basis of obtaining the
fruits of their labor for the beuef'itOf the instltutlon.
Will 70~1,therefore, adrise us ae followa~
          s(1) Vould the Dootor-Superintexxlont  of any aentsl
hospital in Texas have the right to make an agreement with an
owner of a fa5 or gar%ea mop, to harvest such crop, pith a
share to the owner +d a share to the institutions,b7 use of
pat&oat labor, mapesvlsedb7 regular17 employ& attendauts,
uhere in the fuaslwnt of such DootorGuper%ntendent, eueh
labor uould in Saot benat   such patients aand f'urtha pro-
vided that such aotion was taken by and vith the Oonsent
of the %.ate Board of Control?
          m(2)  IS you ansu%r the abwe inquiry in the af'fir~~-
tiw3, would the same rule apply to Superintezxltits
                                                  of our elee-
mosynary sohoola and correctionalschools uhere the inm%tQ popu-
latlon Fa rithout mental defects?
          '(3) Where the Doctor-Buperintondeutof 6 mental in-
stitution @ae of the opinion that it uould benefit patIenta,
could auoh Doctor-Superlnten&3nt, by and uith the oonscmt OS
the Board of Control, purchase an agrioultural orop 8%j8oent,
or near euoh institution anb hsroest such crop, with patient
labor, properly supervfeadb7 regular nttendauts, wkeu it
was tho opition of suoh Doctor-3uperintemWmt that suoh labor
rould prove of bfmefit to the patient?
          W(4) Ii you hare anr3rere4dqtlestioll
                                             3 in the airma-
tite, would the same rule apply to eleomosyuar7and oOrlWotiOn-
01 sohoola?
         *If neither oi the above policlos can be pursued as a
mtter of law, do you kuo~ of'any lrethodor policy that aan be
Ptilizui to effect the purposes set cut In the caption of this
thquLrJrthst would not be +iolatire of the la*?
                                                                                217

Eonorable   Uewer   8.   Baka    -   PorpO 3




            OXariw of      the   faet   that   ~8   need   to   in-
     mediately begin to take action in this matter,
     if suoh can be done, because of the fact that
     many forage crops are aw matured, ~0 muld ap-
     jU'eoist0 JOPr WU’4 dtCillti0Bt0 these inqrdr-
     iw,.
          The prcblem rith which you are ccufrouted is
quite im important one, and you are to be costineuded
                                                    in
seeking to work out It.8solution.
          Tour inquLry is general - that is, rith re-
epect to the classes of iustl.tutionsaud not with r6-
speot to auy particular institution - aud our auwer
-1   be eOa0nlingly broad.
/          mere is lmolved in the coneiderationths
gcueral polioy of the State rith respect to persons in
her custoaJ, whether as conviate in prisons, patlents in
hospitals, or inmates of cw eleemosyuaryinstitutions,
tith respect to the personal serrices of’such persons.
All such persons are In the custodial care of t&O State
for tho good of the rard and the general public aa well.
Vhere there is a specific statute with respect to such
matter, it  would oi oourse control, but l.uthe abseaioe
of such statute there fs neceesaril7ImplIed, we thluk,
the right of the State to the reasOzU%bleserviaes of such
aards, not inconsistentuith or destructire of this whole-
some custodial care.
          In Oplnlon so. o-d727 ze advised the Texas prison
Soard that ltfthrespeot to convict labor the policy of the
State, as evidcmed by statuta, prohibits the use of aomiat
labor for the benekit of private peraoue.
          In opinion so. O-4793 addressed to you, we adTlaed
that there existed uo authority to perndt inmates of the
Gateerille State School for lsofeto work for tire.
            In the course of that ophion  we pointed                  out the
reason   tor this policy in the folioring vords:
           Wne, ii not the chiei eonaorn of the law
      is that Jureuiles coawdtted to the Trainlug School
      shall be under the. imrmediate supervfsion provided
      by law - that Is, of the ofiiaera    ami pePsons
      named In the statutan.
                                                              218
Honorable ueaver fl.Baker - page 4.




            vClWlp, if'the inmates vere hired out
     to f'6nXXs to aafdst them in ;;athoringtheir
     orops, or in other fam work, at peek thea,
     or otherwise, the boys would hot be under
     the imediate aupervlaionof the oonatituted
     authoritiesfor such period, but, on tht con-
     trary, would be umder the iEPned.iate supervia-
     ion to aa 0Xtent of the farmer or farmera   to
     whoa thay were Nred. The nerds of the Insti-
     tution   are not lhattels to be bartered, hired
     or loaned ior the aomenleme of the farmra
     or the convenieuco or profit te the Ytate.
     The~partLcularwork mentioned * you may veil
     be n hafpful one in a worthy cause, and ot no
     hurt to the juveniles. But, grantiug the pev-
     er, there would be no atopplug place. onal?
     recogniaad to exist, the power could be emr-
     ciaed in says most dimaging and hurtful to the
     asrda.v
          Upon these oonsiderationsyour plau contemplated
in Question 1 is out of bounds* Under such a plan the vat-d
or imato would in legal essence  be hired out aud under the
control ct the employer, whether the ccmpenaetionbe in
~oncy ur othev kiud of propfxty.
           Your eccond suggcstc5plan contaLnod in &eat&on
3, hoveve2, i;oosnot fall vithin the condomnation of the
pcllcy of nowhiring out above ;Uacuased. As mutter of
la-v,vc see no valid objection tr,the adoption of such II
cash au5 carry plan, vhero suoh oupplLes are such aa ore
authori2Xd to be purchased by the institutiongtnmrallp.
iq this plan to purchase and harvest, or prooeaa, there
is no element of hiring:out the Btst0*s antis involved.
Un the contrary,  they are et 311 tines vitbin the aroper
custodial care of the State authorities.
          WC think such a plan uay be adopted and carried
out by the authorltiea in control of Our Dmutal institu-
tioua, and likevise our elaevmafnerpand correctiousl
schoola. As a policy or practieo it is not aoudesnnad by
                                 other lavtil policy or
law, thou&h, of oourse, like rtlly
practioe it light be subject to abuse. It is capable af
vise use, sud oould result in considereblecoonosy in
these iustitutiona.
                                                              219
rionorable uearar ft. naker - page 6




             It must at all times be rmembered that the Stata*s
policy in the nziintenanoeOS such inetitutioneis not one OS
proPit to the Stat0 in any respect, but rather for the beue-
sit of the patient or Imate, and that pereonal labor or ser-
rice OP such patient or inmate is itself a part OS the cor-
reotional    treatmeat or dare, aud ordiuarily should be roluu-
tartly perf'ormed    by the inmate. The ptWOrPlaaOe,aat~e md
extent    oP euclh labor fs such as reaeouably prudent 0SSiaiale
under suoh circumstanceswould permit, haying due regard to
the welfare OS the patient or other inmates.
          IinClOugh T. Torshaal,74 8. w. 550, it was epwifle-
ally held that no law or public polioy forbids the sorhing of
an inmate of the state Lunatic3Aaylpm outside the grounds of
the institution, the aourt saying8

               .e + 0, Appellants insist that whenever a
     person is Sound iueaue by a proper aourt, aud
     coaud.ttedto the asylum for restraint aud treat-
     neat, it 16 aegligeuce per se Sor the wthori-
     tiw in charge of such asylum to perndt suab
     person to leave the asylum grouuds. Ve~hate
     eareSully exaudued all of the statutory       pro-
     tisi.o~      beariug upon the subject,  but we are
     unable to agree with this contention. Xt is
     true that, in order to adndt a person as au
     imate to an iusane aeylym, the cwrt must
     Pltxlthat he is of uusouud mind, sad that it
     is necoeaary that ha shoald be placed under
     reatrdat,        and the judgzaentof the aourt in
     such case is that he be oomeyed to the luua-
     tie asylum for restraint       &xi treatment. Rer.
      gt. 1895, aFta. 133, lR5. But we hare Sotmd
     no provision of'law uhich requires that such
     person &wit be ~ouf’lncd within the walls or
     upon the g~%lldslOS such aaylym. In tU8
      case it will be noted      that the insane per-
      sons uora not unrestrainedat the time the
     injury 0c6urredr IS they had been permitted
      to leave the asylum or its grounds without
      any restraint      uhatever, a differout questlOB
      would be presentedjbut the question here pre-
      sentedie Whether it la a violation oS legal
     duty to poradt such persons to lea~o the
      asylum premiaoe, even under restraint. There
    As no dlreot   provioion of the law to this
    effeat, nor any prorision fraa rbioh such
    conalooion can be re%eonaEly inferred~ and,
    t&Is be&n& tho ease, 8~ ~omlude that ths
    Legislature only intemied that 6uqR person0
    should be reqtcalned,bnt that the duwaoter
    and extent   of such restraint, and whetheir
    euah person0 should at all tines be confinal
    wiWin the grouxxioof the aaplum, 805 lef%
    to the dieoretion of the offlcialo upon 8hom
    the duty aemmd.~

         A   rrit of error to the $%lgmentwas rsfusod, and
this is dooisilreas to ;UIixmanS Topd. Por tneflstroax#~
reasons the rule is the aam in respect ta wmie or in-
3wd8 not 80 fbfrimed.
          Our holding is not impelled by amy oomslderation
of war a? Gth%i+aueQp3niTyuhrrteoa+*. &aC%yg~ Oan not
confer official power where none otbervlee adate.   It only
affords opporbunlty to cxeroiee a power already exieting.
         Trusting that what re hate held thns @mrall~
if35llfPloientto amroc your qpeetiome,86 are
