Hon. 0. B. Ellis          opinion HO. v-498
Genera1 Planager
Texas Prison System       Re: Authority of the State
Huntsville, Texas             Prlsoa System to,hold
                              insane criminals
          You request an opinion from this Department
upon the above captioned subject matter as follows:
         "It has been called to my attention
    that we are holding three prisoners whose
    time has expired because they have been
    adjudged insane.  The attached memo gives
    the names, numbers, ages, county of crime,
    sentence, home address and expirationdate
    of these three men. I find In our files 'a
    ruling of your d~epartmentthat the austody
    of insane criminals is a responsibilityof
    the Prison System for the duration of their
    sentences.
         'I would appreoiatean opinion from you
    as to what authority I have to hold these
    men beyond their explratlondate. It was my
    thought that they should be returned to the
    sheriff of the county in whioh they were sen-
    tenoed and from that point on, they would be
    handled as other Insane cases are handled."
          We assume from your request that the prisoners
Fn question were lawfully adjudged insane by the County
Judge of Walker County in acoordanoewith the provisions
of Article p86a, v.C.S., and were committed to the State
Prison Psych,opath&Xospltal before their sentences had
expired.
         Arti.cle62038, V.C.S., provides in part as fbl,-
lows:
         "Section 1. That there shall be buFlt,
    establishedand maintained,as a part of the
    Prison System of TeMB, an Institution fOP
    the examination,observation,treatment and
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Hon. 0. B. gIIl% - Page 2   (No. v-498)


     Incarcerationof all persons who have
     been oonvlcted of felony, end who have
     been duly adjudged Insane by any com-
     petent court at law in the State of
     Texas3 and, who have been acquitted by
     a court of competent jurisdictionupon
     the ground% of insanity; sa.ldinstitu-
     tion to be known as the State Prison
     P%yChop%thlchOBpita1.
          "Sec. 4. When any person shall be
    confined In any jail, asylum or other ln-
    atltutlon of.confinement,who 1% charged
    by indictmentand has been convicted of
    felony In this State and who has been duly
    adjudged Insane by a Court of Competent
    Juri%dlctlon,~uponthe grounds of insanity
    shall be oonflned In said Institutionand
    all persons who are uow conflned in the'
    State:Ho%pltalfor the Insane who are clas-
    Bifled by the superintendentsof Bald dlf-
    ferent HOBpltalB for the insane as crlmlnal-
    ly Insane shall upon proper certlflcatefrom
    the superintendentbe transferredfrom Bald
    Ho%plta1 for the Insane to the State Psycho-
    pathlo Rospltal.
          "sea. 8. . . . that a great many prla-
     oners have been committed to the various
     State HOBpitaIB for mental diseases and have
     escaped, and that escaped insane prisoners
     are asmeuace to the people of this State.
     . . .
           A careful reading of the above statutes re-
veals a legislativeIntent to create within the prison
walls a place of incarcerationfor the crlmlnally ln-
sane where they could be adequately cared for and
guarded. While the Legislaturedid not attempt to de-
flne speolflcallywhat It meant by "orlmlnallyinsane",
we believe It fairly Inferable from the above act that
they dld mean to include within that classiflcatlon
those person% who bave been convicted of a felony and
who have subsequentlybeen adjudged insane. From the
facts which you have furnished us we have concluded
that the three prisoners to whom you refer are within
this classification. Therefore, you are advised that
under Artiole 6203e, supra, you are authorized to re-
tain custody of the three Insane prisoners, at least
until such time as they are adjudged Bane.
Hon. 0. B. Ellis - Page 3   (no. v-498)


          We note from your request that you assume
that the sentences of these three Insane OOnviCtB
have "expired". While we find It unnecessarynow to
pass upon the question of when the sentence of an in-
sane felon expires, we refer you to Attorney General'%
Opinion Ro. 0-5721,by a former administration,a copy
of which is enclosed,whichoontalns this statement:
          "We are of the opinion that the'fore-
     going dlBcuB%ion dlSClOBeB a legislative
     polloy In Texas of not subjecting 1USane
     person3 to criminal puni.BhmOnt,and that
     the time spent by an insane in a state hos-
     pital Should not be Counted on hl% SenteXWe
     as a crlmlnal."
                     SUMMARY
          The authorltle% of the State PriSOn
     System may retain custody of three convicts
     who have been adjudged Insane and committed
     to the State Prison PsychopathicHospital
     even though they have been incarceratedfor
     the perFod of thefr sentences. Article
     6203e, '7X.9.
                                Yours very truly
                            ATTORREYGERERALOF TEXAS



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        Considered'andapproved in Conference
