  OFFICE     OFTHEATTORNEY        GENERAi..OFTElUW
                         AUSNN




Eonorable  A. J. Luckett
county Attorney
coma1 county                 ,
Rev Braunfels, Texas

Dear Slrr                        opinion Ho. O-4080
                                 Rer can bond be mede for a
                                       person who has been
                                       adjudged feeble minded
                                       80,that no warrant to con-
                                       vey such person to the
            -----                      Auetin Stat8 School vi11
                                       be f88Ut?d?

          YOUI r8qU8llt for OUP OpiniOn On the her8lnabixe
captlongd qU8StiOll haa been r8C8iV8d by this de~rtment.   X8
quote from your letter  as followst

          "1 vould like for you t0 please give m8
     an    OptniOn
                 00. the f01loVing qUeStiOn, to-Vitr
     'Can bond be made for a person who has been
     adjudged-feeble minded so that no warrant to
     oonvey such~person to the Austin State School
     vill be,isaued"?

             'The folloving statutes are S+volvedr

          "Art. 3871,R.s., provides that a---
     the judge ahall arrange to send such person
     to said school in like manner in all respects
     as is provided for the Sending Of insane Pa-.
     tients to an asylum.'

          "Art. 5557 provide8 for the manner of
     aendIng a person adjudged to be of unsound
     mind to an asylum, etc., and Art. 5558 pro-
     vides that no warrant shall iasue.if some
     relative or friend of the lunatic will execute
     a bond to take oar8 of and restrain such lunati0."
Ronorable A. S. Luckett, Page 2



            %i8   prillkI=      Of the inStUlitJ
                             pW?pOSe             prOceedinga au-
 thorized under Title 92 of the Revised Civil Statutes of Texas
 (hrtid88 555C-5561a. V.A.C.S.); is to determIne whether the
alleged lunatic should be confined because of his danger to,
and the Safety Of, SOCi8tg. This fact     i8 manifest from the
 issu88 required to be 8Ubmltted to the jury trying the case
under the prOVislOtIs of ArtiCl8 5552, end under the provisions
.of Artiole 5553.

          Article8 5552 and 5553, V8rnonts Annotated              Civil Stat-
ut88, psad a8 fOl~OI?s,

            "Art. 5552.      155       Special i88UeS 8Ubmitted

          *lifter the evidence 18 heard the county
     judge Shall submit the matter to the jury upon
     the followFng special issuesr

          "1.      Is A B, the defendant, of unaouad
     laind'l

          “2‘ If' the defendant is of unsound mind,
     is it necessarp~that he ehould be placed under
     l'88tl%tit?

            “3.If you answer both the foregoing
    qU8t3tiOll8in the affiX%L?XtiVe,then what i8
     the age and nativity of the defendant?

         "4. Rev many attacks of insanity haa he
    had, and hov long has the pr888nt attack existed?

         “5. 18 insanity hereditary in tb8 family
    OS defendant or not?

         “6. Is defendant possessed of any estate,
    end if 80, of what does it OOnSiSt and ita
    8StiHUIted Value?

         “7. ff'th8 defendant is pO888t38ed Of n0
    estate, are there any person8 legally liable
    for his support?  If yea, name them. hot8 1876,
    p. 138.
Honorable Ai J. ‘Hackett,   Page 3



           "Art.   5553. 156 Verdzot
          “The  jury ehall return plain ansvers in
     writing to th8 issues named In the preceding
     article, but, if they find either the first
     or second ieauea in the negative, they need
     not determine further, and the defendant shall
     be dlscharged.R

          Under th8'prOVl8fOnS of Article 5553, therefore, a
person, although found to be insane by th8 jury, must be dis-
charRed if the jury find8 that th8r8 ia no necessity of placing
him under reetraint.

          Also, under the' iisanity prOC8ed&gS of ,T'itle92, Seo-
tion 1 of Article 5561a, Vernon’s Annotated Cfvll Statutes, pro-
vides, fn part, that;

          "If fnforemtion in writin& under oath
    be given to any county judge that any person
     in hl8 COUntY. not OhErR8d ufth a Oriminsl
    Offense; 18 isperSOn of-UISOUUd mind, aid
     that the welfare of either such person7
    any other person or persons rkquires that
    he be placed under restraint, and such coun-
    ty judge shall believe such Lnformation to
    be true, h8 Shall forthwith issue a warrant
    for the apprehension of such person, l * *.V
    I(Undereoorin& ours)

          Seotfon 2 of said Artiole prOVide8, in part, thatr

         “The warrant provided for herein shall
    run in the name of 'The State of Texas,' and
    shall be directed to the sheriff or anv constable
    of the county, end the offLeer receivl&    same
    shell forthwith take into custody the perscn
    named therein, and at the deslznntod. tine and
    place she.11 have him nnd the return of said var-
    rant before the County Jud;ie ror oxnni.nation
    and trial, + + *.I' (Widerscorfng ours) s

          Under the proviatona of the quoted sections, the of-
fioer is directed to take such person into custody, pendLng the
hearing, if the county ju&e frC0V such information believes --
not only that it is true that such person ie.of unsound mind,
tlonorable A. 3. Luck&t,     ?ege tl



but, in addition, that the selfme  of cltber such person 01
any other person or lemons rewires    that h.Q ->a plscad liiiaer
restraint. There is no ~rovie.Lsn under l'itle 93 authorizing
the giving of en appearance bond penda    the  disposition of
said cam at the hearing. He io therefore not entitled to be
roleaaed on ball pending the hearing.   see I% parte Roark
(Tex. Grim. App.) 61 3. W. (26) 633.

          If, a+. p&niouoly mentioned, it ie found by the
jury that he is insane but not neoaasary to be placed under
reatraint, he is discharged.  If he ia fou@d both Lnsaue and
necessary to reetrain, Article 5554 requires that jucQm;ment
shall be outorod "adjudgin& the defendant to be a person of
unsound nind and ordering him to be conmitted SW rastmiint
and tseeat;acnt* * *, '?

           Article 5557, Vernon'n Annotated CivPl Statutes, ?ro-
vlded t&t im5mUately    after euch j-ant    the county June,
it he ascertaina that there is a vacancy in my of the ppe-
scribed aeylums, or that the patient may be axcomaod~ted there-
,ti, shall issue 6 warrant to convey such lunatic to the asylum.

          AFtlcle   5558,   VemOdB     Annotated   Civil     Statute&   how-
ever, provides;

          *Art.   5558. 1.62Relative    or friend          may
                               give bond, etc.
          "No varrant to convey a lunatic to the
    asylum shall issue if some relative or friend
    of t,holunatio will underteke, before the coun-
    ty judge, hie mce md restraint and vi11 exe-
    auto e bead in a sum to be r'ixed by the county
    judge, pcyeble to the State of Textm, with tvo
    OS more good and su?'Sicient mretlea to be hp-
    proved by the county judge, conditioned that
    t&e pmty ~lv?Jy: such bond will reztr&:n and
    take proper C&PO 3f tie l~at+o 30 10~ 88 hi8
    mental v.naouMuess continues or until he 1s
    delivered to the sheriff of the county or
    othar 3(3rtm, to be oroceedod ulth according
    to law, which bond ah311 be filed with and
    OOmititUt8 .a ps.xt of the record 09 the pro-                  L
    o~&irigs,  and may be sued and reoove~~$ upon
    b .nny party injured, in his OM nam.
     TUnderscoring ours)
                                                                       372

ffonol'able
         A. J. Luck&t, page 5



          We are of the opinion, therefore, from the provisions
OS the articles hereinabove referred to, that the primary pm-
pose oP the eaectment of these statutea, undep pl.tl% 92, vas
to keep the lnean% under restraint, whem they are in such an
urlfortunate condition as to be likely to harm either l&enaelves
or some other p%J?6Orl.

          We do'not Wish to be undemtood, however, 4.eholding
that the State did not aleo, by the enactment of thee% Eu3d other
statutes, f&end to provide for the proper treatment, and ther%-
by hope to effect cures, of our unfortunate Z.nznn%, our sole
purpose in analgzi.ng the heroinabove tmrtiotied provialons of
Title 92, ie to detemiue vhether the Leglolature, bye the la+
guage used in the last clause of &tiele 3871 of Title     59, Vep-
~CZI’XAnnotated  Civil Statutes, dealing witii proceediaa    111.
oeaes of feeble lnLnd%d p%r8ons, intended to make Artftle 5558
apply to psr8011a found by the court to be feeble minded.

           fitle 59 of th&RovIsed Clvll. Statutes (Article8 3867-
3871, Y.A.C.S.j  preecribes the prooeedings.in c&sea of feeble
minded persons. TheHe PPaceedings, as the lunacy prow&dings
under Title $32, are purely statutory and the couHi In truth cae%6
haa only such authority a8 is eitfiez?expreealy givsn or c&earS
impll~d by the contMlliag   statutes.

          There is no express provision undem Title 59 author-
Ising the making of a bond for a person who has been adjudged a
feeble minded person under the proceedings of said Title.     Can
the authority for such a bond be cleerlg  implied fsmm the law
gugg% used ln the last 6laush of Artlole  38714  Sald Article   pro-
vides thatc

          “Art.   3871.   CoRIPitment

          “If such p%tson be found to be feeble minded,
     the oourt shall enter its order 80 adjudgw   him,
     and that he be committed to the custody of the
     Au&In State school. Upon the entry~of such
     OrdBP, the judge shall cause to be prepared a
     transcript oi’ the~procaedi~a  and %vldence, whloh
     ahall shov the age, aex, race, status and mentul
     condition of the patfant, all of vh!.ch he shall
     certify to be oorrect, and transmit the mme to
     the aufierlntondent of such school. If the patient
     is entitled to bo received into the achocl, and
     there Is sufficient POOP therei?& the suPerintendent
     &all notify said judge thereof, wherewon the .iudrze
Honorable A. S. Luokett, Page 6



     shall erranm to aend such person to said
     school In like mmner in all reapocts aa
     la provided for the sendin:: or’ insane pa-
     tients to an asylum.”  (Underacorfng ours)

          From the language used In the underseared portion
of the quoted statute, ve do not think that the Legislature
intended to make the provlalona of the bond in Article 5558
applicable to persona adjudged feeble minded under Title 59.

          In our opinion the Legislature, by said underscored
portion of.Artlcle 3871, merely had reference to such matters,
for example, as the furniiihlng of such clothing as provided
for in Article 5560.

          The nmln reason, hovever, upon uhlch ve baae our
opinion that the bond vaa not intended to apply in feeble mind-
ed cases, Is that a person vho has been adjudged feeble minded
is not in custody as la one vho haa been adjudged insane and
ordered held under restraint, and therefore there is PO nz
easltp for such a bond.

          Artiale 3233, Vernozi’s Annotated Clvii Statutes, de-
Sines feeble minded.persons as follovsl

          “Art. 3233.   Feeble minded persona defined

          “A feeble minded child, a8 defined herein,
     is one of such feeble mental or moral powers ae
     to be unable to profit by the ordinary methods
     of education as employed in the common schoola.
     A feeble tinded adult le one vho Is unable under
     ordinary circumstance8 to protect and eupport
     himself-as a lav abiding oitizen because Of
     lack of mental POVer.’

          When a peraon. le charged with being feeble minded under
Apticle 3867, he must be served with citation and given notice
aa provided In Article 3869.

          We have been unable to find any statutory authority,
hovever, for the apprehension or the taking into custody of a
peraon charged vlth being feeble minded. Neither does there np-
pear to be any authority to place him in jail or keep in custody
after he has been adjudged feeble minded. l’he only authority to
commit Is found under the provisions of Article 3871, and”auCh
commitment 18 ‘to the custody of the Austin State School.
gonorable A.     S. &wke~t,   Page 7



           Where a person has been found to be feeble minded by
the court and there 1s ao vacancy In the Austin State School,
ve la?ov of no authority under which such a feeble minded person
can be held in custody by anyone until such time as a vacancy
olag exist in said school. There can be, therefore, no necessity
for such a bond as Is provided for in the case of a person ad-
judged insane and necessary to be kept under x%straint in order
that he will not injure himself or others.

          The purpoee underlying our statutes providing for pro-
ceedings in feeble minded cases, appears to be the training of
snd caring for them, rather than confining them because of dan-
ger of Injury to themselves or othei?s, as ln ths 0888 of insane
persona.

          The original Act creating the State Colony for the
Feeble Minded (now Au&tin State School) vaa passed in 1915.
(Acts 34th Legislature, P. 143). The emergenay olause of said
Aot~~~~read,
           in part, aa follovsr

             *The fact that there is nov no Uv pro:
        vfd&   for the training or care of’ the feeble
        minded in this State. * * +.*’ (Undersooring
        ourfl)
          In view of the foregoing, it is the opinion of,this
department, under the facts stated, that your question should
be anavered In the negntive, and it is 80 answered.

                                          Pours very truly

                       “9A1941   /”
                                       ATSORREY GENERAL OF TEXAS
                                             A




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