                                                                             R-494



                  THE        ATTORNEY              GENE&&'.
                                  OFTEXAS
                                  Aun~l~   I;. """"""""""s
PRICE  DANIEL’
ATTORNEYGENERAL
                                           June 12, 1947

          Hon. Looneg E. Lindsey                Opinion Ho. V-247
          County Attorney
I
          Upshur County                         Ret: Authority of County
          Oilmer , Texas                             Attorney to represent
                                                    & PBI’BOR BEdCiZ@ t0
                                                    ha;laels   asnity Fe-
                                                             .
          Dear     sir:                                                           ‘i
                                                                                “.,i
                           Your requert  ‘for   qn opinion   iron   thir   office
          iS,     in mt,      88 fOllOVB1

                        "1. By virtue of Article 32 of the
                  Code of Crlmlnal Prooedure ie a County
                  Attopsy sating inshis u        oapaoitg pro-
                  hibited from representing a person   seeking
                  to have his Bt3lZity restored.
                       "The particular 'case Is ohe in whloh
                  a IMU&v&a adjudged lnsaq about three (3) *
                  Yeats ago during tUe admlnlatratloo of a ,;
                  prevtoue county Attorney.
                        "2. By virtue  of Article 32 of the
                  Code of CHminal Prdcedure is a Coiu'itp
                  Attorney acting ,in his officlaq capacity
                  prohibited from representing a person Beak-
                  ing to have his smity restored?"
                           Article 32,,V.C.C.P., provides, in iwt8




                           Art1010 5550, V.O.S., pzJovldes,ln part, em.
          follover                                                    .I. ; /
                                                                                    :*' *
Hon. Loonoy IL Lindsey - Paepe2         ~



    ‘wlwa Oh&ea t0 be Inat&& a8 deientlant.
     'JheCounty Attorue~ OF the Distrlat Attop-
     ney in cq+n$lee haying no County Attorney,,
                                          on the
                                           be
     entitled t0 COUXXW~; end in paper OBBBB the
     County Judge nay~appoint ooua~el       for that
     purporo.     .‘.”
             ~eatlon     4 of A~tilolr556th.V.C.S.,ir as fof-
lovr:
             "sea.4. Whenovoroae OP 8ore'mdult
     oitisens ol thie    State shall fil4ian atfl-
     dmrlt vith thr County Judge of the oountx' 1
     vhere uay one of $he lffianto roaMe8, al-
     le(gq under oath thet there is located wlth-
     in aaid county, or oonfined within said coun-
     ty, a person vho ha8 theretofore been declared
     to be of unsound rind,     or an habitunl dcuuk-
     ard, and that in tho opinion of 8ffiants ruoh
     poroon has been r48tored to hlr right tind, or          'I
     to sober habita, and that the@ is no orlmlnal
     chargo onding against such per'llon,     tho County
     Judge all?+11 forthwith, either,in tor8ti.m or,
     in womtlon, rot m bry for e heariag to dotos-
     mla th e aa mity,   o r lobrioty, of ruoh porron.
     Zhe Cosatf '"g" 8ha;Lloaueo rrotioeof the           :'
     data ret or t e horrlq to be lrrurd by the
     County Plonk, to the guardlm of suoh‘poProa,
     if My, mna to thoro hmring ourtoay of ruoh
     pawea, if may them be, aad in,tlfbevaat.auoh
       l~r6n ba, a bmofiol~r,    of the Vetermaa &&la-
     P rtrmtlria~, or h$s rat*ee 00n818t8 in xholo oi?
     ia prrt of 8013~ qpothor qsratr derived irorr
     d08p8ation, pabaoa UP ia~pruroe.paa2ky           th0
    United St8to8, ltkkenotioo 8ball lio,lrorred      oa
 ,.~ the ohfof.rttoraoy of the Voteran Adrinistrm-
     t&n   in this State by dellwwlng a co y o? ~, ~.
     said notloe to his office, of the ii.1    ing of
     .suohaffidavit,    and that a hearing la to be
     hod thereon, giving tho time,end plaoe theroef.
     The County Judge ahall direot tho~Shertff of- .’
    ~tho oountf vhere eueb pnrllorr    ir loorted 'W$a-     ~
    ~?iImdtobring suoh~soa    iato qarOa)d    f@l'
    rid lao&PiDg,if auoh aot108 be 8eoerury 'to.*,;.
                                                   ,',~
                                                      .I
    ~~oaymhirpvr8eaoemttk      *la.         n
--   -




         HOIl.Loonay E. Lindsey - Page    3


                    “(a)  A jury may be demanded by any
              person interested  in the ward or his estate
              to pass on the question of whether or not
              such person has been restored  tb his right
              aind, or to sober habits, but if a jury 1s
              not demanded, the County Judge may paas up-
              on such question, or he may cause a jury to
              be empanelled to hear su& cause.
                   “(b)   If,the trial of the cause, o&them
              before a jury  or the County Juago, result8
              in a finding that such paraon h4e bson re-
              stored to his right mind, or,to sobor habits
              a Jumnt     sh813 be entered won the minutes
              of the cot& P4Clting SW& itots, and adjudg-
              ing su6h person to be of sound mind, OF sober
              habits,  rad raid person, if then under po-
              rtralat,  shall be discharged immediately.

                     “(0) If 8uOh perron be under guerdiaa-
              ahip st Ohs inotitutlciPof laugh ~rooeodl~s
              mnd ah&l1 be &djudged to h4v4 boon reetorod
              to his right aim%, or to rObep.habitU,,under
              tho ~FOV~BIO~O     Of this ALot,and If 8uOk.ire-
              storation     takes plaae in a court other than
              t&t ia which tho guapdian8hip iB pOndi
              then said fop&norward shall file a copti       T’iod
              uop~ of the judgment of #@estoratioato sanity,
              or .sobriety,    in ?2ae court where the guardian-
              d&ii8      POndiD& and, lmnediatoly      after the
                        of suoh celrtified    oopy of OUOb U
              *ent n the court vhere ,the gWWdian8 h ipY-l
               ending, the fomer guardian shall file hi8
              Pinal (Lccc$mt,ati      deliver   to his forrer vuld
              the ertato rooslnlng in his handa. If the
              orrtoratlon be had in tho ~oou*t whop4 the
              gukrdiknshlp is pondlng, then immodlately
              after such jidgmeat of restoration        la enter-
              od, the foFI8or guardian shall file his final
              aooount and dsllver over to k&e former ward
              the estate remaining in his bands, in the
              Wue and ammner provided for in probate pro-
              oeodings.
                   “(d)   From a judgment Pendored by the
              GouattyCourt upon any pestopatlon heaping aa
              provldbd &n appeal may be taken to the Dlstrlot
          Hon. Looneg E. Lindsey - Page 4


               Court of the county wherein said carrsez
               orlglnally was tried. The appeal from
               the ju    ent of the County Court to the
                     T Court to be perfected In the
               Dlstrlc
               manner and In the time prorlded by law
               for the appeal of probate ~ooeedi~r
               from the County Court to the M6trlat
               Court; and provided further, that the
               trial in the Matrlot    Court &all be de
               nova as In other probate pro@e
               U&t~       w        of the Dirttldi 9 &ii?
                           4     .

                    "(e) Any person who ha8 heretofore
               been declamd to be of MaoundUBd,     O?
               anhabitual @lrunkmd, and ha8 beaa trl(hd
               m     the pslo~lrloan of thlr &a& *M f'ourua
               to be of ULUVXI& mind, or an aribitprl
               tlmznkbra,shall nOt again be tried for a
               period of six (6) months."
                      Under the pLaln prorlsfona Of APtlele 5550,
           V.O.S., It is the duty of a Q@aU#tJAttaMcnj CO Cupa-
           rat   the State in the original  lunacy h@aWIg.   Al-
           though there is no duty lmporralupon a OorultJAttobn87
           to repxwrent   the State ln the hearlag on PertaratiQo
           of salty, it ie our opinion that een8WuUg      Wo 8bora
           Quoted provlslona tqether, the Statr~dwr     b@Ta WL
           Interest In the came. This being trqo, it nese88uilj
           follows that a County kttorneg Is prohlblted frol being
     *.   ~"bf'counnel adveraely'to the State in any case, Ln Snf
           cowte "
                r..


                    A County Attorney  la prohibited by
               Article 32, V.C.C.P., from reprolrmtlllg a
               pors.~,roepg   to have hi6 IAmity roitQwoa*         ,,

.,                                            YQ!lm **      ti?&
          APPFtOVED:                     A~oaom~snasuaPEIuB

          ii?&32                         8v
          A7!T~m!      fJBm!AL
          JR:djm
