Honorable Thos. A. IMat
County Attorney
Liberty County
Liberty, Texas

Dear Sirr                        Opinion No. O-1796
                                 Rer Must a,~~rson who is ohalrgedwith
                                      being insane be present inthe
                                      court during the lunacy hearing?

           Your request for an opinion.on the above st+ted question has been
reoeived by this department.

            Your letter reads in part a6 follows:

          "The County Clerk of Liberty County, Texas, has sub-
    mitted to me the question aa to whether or not a arson who
    is alleged to be insane, who is~in an insane hospital in the
    City of Galveston, Texas, can be tried in a lunaoy prooeed-
    ing in the County Court of Liberty County, Texas, in the ab-
    8enoe of the accused or rather the person ohargad to be in-
    sane.
            1,
             . . ."

           A lunacy inquisition is a proceeding instituted by the state
primarily for the purpose of dotsmining the question as to whether an
alleged lunatic should be oonfined bsoausa of his danger to, and the
safety of, soaiety. This proceeding is wholly statutory. The court   try-
ing the cass has only such authority as expressly given or clearly implied
by the statutes, and the alleged inq,pnpstenthas the right to insist on a
strict complianoe with every form prqscribed for his protsotion.

           The proosdure foradjudgingone not charged with crime to be a
person of unsound mind and providing for his restraint is solely through
the county aourts: and although the state is a party to such an inqa:.ry,,
the character of the proceeding is essentially civil. See Tex. Juris.
Vol. 24, p. 388.
Honorable Thos.   A.   Wheat, page 2 (O-1795)



           House Rill No. 249, Chapter 174, Acts of the 39th bgisla-
tura, 1925, whiah is brought forward in Vernon's Annotated Civil Statutes
as Artiolss 3190 to 3193-o. inclusive, was an aot providing for the care,
restraint, diagnosis, and treatment of persons who are insane, mentally
or or mentally defective; providing for regulating and for the operation
of public institutions and hospitals for such persons8 providing for the
neoessary officers, agents, agencies and employees for suoh purpose and
to administer and enforce the laws rmlrting to such personst providing for
sustenance and maintenance; providing for edurstion and research relating
to,such parson2 providing for psychopathic research relating to such per-
sons providing for the adiudination o finsanity or mental sickness or de-
foot, the oommitmentand restrainin2 persons 60 afflicted; prescribing
rules and regulations ani defining offenses in conneotion withthe'care
and treatment of such person: providing the necessary funds and fixing
necessary salaries to carry out the purposes ?f the act: repealing provi-
sions of the Revised Civil Statutes and ~11 other laws in confliot there-
with; and declaring an emergency.

             Senate Bill No. 259, Chapter 446, Acts of the 45th Legislature,
1937, was an act providing for a unifona method for trial of persons of un-
sound mind and defining the status of oontracts which such person might
have entered'prior to court judgment of inoompstenoy and providing for the
apprehension, arrest, end trial of persons not charged with criminal of-
fense, alleged to be of unsound mind by filing an information under oath
before a county judge or justioe of the peace and the issuanoe of the war-
rant of arrest thereon and return thereof to the county judge: providing
for the setting of the time and place for the hearing of said oomplaint
and for notioe thereof to such persons$ providing for the summoning of the
jury to hear and determine the issues to bs subnitked in said OIUW; pro-
viding for a procedure for determining and adjudicating the restoration
to sound mind; providing for the protection of those dealing with persons
of unsound mind who have not been so adjudicated; providing that this act
shall not affect any court action or proceeding and that if any seotion,
clause, or provision of thisaot shall be declared to be invalid, suoh
holding shall not affect any other seotion, clause or provision thereof3
and further providing that the act shall be ounulative of Articles 5550 to
5561, both articles inolusive, of the 1925 Revised Civil Statutes of Texas;
violating proceedings, orders, and judgments of county or probate courts
adjudicating certain persons to be of unsound mind, and deolaring an omer-
g-w.      This act is brought forwurd in Vernon's Annotated Civil Statutes
as Article   5561a. This statute supsrqdesthe     statutes brought forth in
Chapter 174, Acts of the 39th Legislature,   supra,  providing for the adjud-
ication of insanity or mental sickness or defeats end now must be follow-
ed in oases for the adjudicafion of insanity.

           Sections 1      and 2 of Article 5561a, Vernon's Civil Statutes,
reads as followsr
            "Seotion 1. If information in writing under oath be given
    to my   county judge that any person in his county, not charged with
Hon. Thos. A. Weat     - Page 3 (O-1796)




     a criminal offense, is a person of unsound mind, and that
     the welfare of either such person or any other person or
     perscatsrequires that he be placed under restraint, and such
     county judge shall believe suah information to be true, he
     shall forthwith issue a warrant for the apprehension of suoh
     person, or, if such like information be given to any justice
     d the peace in such county, said justice may issue awarrant
     for the apprehension of said parson, making said c-plaint and
     warrant returnable to the oounty oourt of said county, and said
     oounty judge in either event shall fix a time and plaoe for the
     hearing and determination of the matter, either in term time or
     in vacation, whiah place shall be either at the court house of
     the oounty or at the residence of the person named, or at any
     other place in the county, as the county judge may de= best
     for such hearing. Notice of the time, place and purpose of
     such hearing shall be served upon the person oharged, such
     notice to be under the hand and seal of the clerk of said
     county, and sex-redand returned by the sheriff, and the re-
     turn to state the time and place of service. Such notice shall
     ba semed not less than three days prior to the day of the
     hearing.

           "Sea. 2. The warrant provided for herein shall run in the
     name of 'The State of Texas, ( and shall be directed to the sher-
     iff or any constable of the county, and the offioer receiving
     same shall forthwith take into custody the person named therein,
     and at the designated time and plaoe shall have him and the re-
     turn of said warrant before the oounty judge for examination and
     trial.'

           Section 2 of Article 5561a, supra, specifically provides that the
warrant provided for in the statute shall run in the name of the State of
Texas, and shall be directed to the sheriff or any constable of the county,
aad the officer receiving the same shall forthwith take into custody the per-
son named therein, and at the designated time and place shall have him and the
return of said lrarrantbefore the county judge for examination and trial.
Therefore, you are respectfully advised that it is the opinion of this depart-
ment that a defendant in a lunaoy proceeding must be present and before the
court during the lunacy prooaeding.

               Trusting that the foregoing fully answers your inquily, we remain

                                                     Yours very truly

AFPROVED JAN 12 1940                              ATTOBNFX GENERAL OF TEXAS
a/ W/P/boom                                       BY
FIRST ASSISTUT                                       s/ Ardall ppilliams
ATTORNXY GENERAL                                          Ardell Williams
                                                                 Assistant
