I




                                          XiAS              :
                              AUSTIN,TEXA~


                             November    8, 1948

    Hon. R. A. Smoot Schmid, Member
    Board of Pardons and Paroles
    Austin, Texas
                           Opinion No. V-712
                                 Re:    Construction       of Articles
                                        921 and 922, Vernon’s Code
                                        of Criminal       Procedure,
                                        pertaining      to trial     of is-
                                        9~6~ of, Insanity      arising
                                        after    conviction.
    Dear Sir:
               Since we received    your request           for an opinion,
    you have orally   advised  us that answers           to the two here-
    inafter stated   questions  will suffice.            These questions
    are :
                  1. What court ore courts        have jurlsdlc-
           tion to try the issue       of insanity     of a con-
           vict arising     while he Is out of the peniten-
           tiary    on parole,   a conditional     pardon,   or
           reprieve?
                 ~2. Is ~itnecessary       for the convict’s
           parole,   conditional    pardon,    or reprieve   to
           be revoked before     the court may try. the is-
           sue of his insanity?
                 Article     921 and 922,     Vernon’s   Code .of Crlmi-
    nal   Procedure,     r’ead respectively     as follows:
                   “If at any time after        conviction    and by
           the manner and method as ,herel,nafter            p:rovid-
           ed, it be made known to the Judge of the
           Court in which the indictment            has been r.e-
           turned,     that the defendant       has become.insane,
           since his conviction,          a jury shall     be empan-
           eled as in ordinary         Criminal    cases to try the
           question      of insanity.”
                                                                    ,.
Hon. R. A. Smoot Scmhid           - Page 2       (V-712)


              8’Information        to the Judge of the Court
      as provided        in Article        921 of the Code of
      Criminal       Procedure       of the State       of Texas as
      to the insanity           of a defendant,         shall     con-
      sist    of the affidavit           of the Superintendent
      of some State         Institution         for the treatment
      of the insane,           or  the   affidavit      of not less
      than two licensed            and regularly        practicing
      physicians        of the State of Texas,             or the
      affidavit       of the prison         physician      or warden
      of the Penal Institution                wherein the defend-
      ant is in prison,            or the County Health Offi-
      cer of the County where the defendant                      was
      finally      convicted,        which affidavits,          If made,
      shall     state    that after        a personal      examination
      of the defendant,            it Is the opinion          of the af-
      fiant     that the defendant            is ‘insane,     and said
      affidavits        shall,     in addition       thereto,      set
      forth the reasons            and the cause or causes
      which have justified             the opinion.”
           The Texas Court of Criminal             Appeals has con-
strued Article     921 many times and has repeatedly            held
that it contemplates      that the issue of Insanity          aris-
ing after   conviction    should be tried        and determined      by
the court in which the conviction            occurred    and that
such court has exclusive       jurisdiction        to try the issue.
Bland v. State,      132 S. W. 2d 274; McKibben v. State,             148
S. W. 2d 423, and authorities          there    cited.    We quote
from the Bland Case.
              “We call attention       to the following        sit-
      uation    regarding    the insanity      question.       The
      judgment of conviction         was rendered       in the
      District     Court of Lubbock County, Texas,             on
      March 23, 1939, and sentence            pronounced     on
      the same day, at which time appel$l.;tt$;;e
      notice    of appeal to this court.
      script    was filed    in this     court on April 21,
      and the statement        of facts was filed         in this’
      court on June 26.         The record here does not
      show that appellant        was released      on bail pend-
      ing his appeal.        Attached     to appellant’s       mo-
      tion to retire      this cause from the docket is
      a judgment of the County Court of Haskell
      County declaring       appellant      to be insane;      said
      judgment bearing       date of May 15, 1939.
               “Article   921, CCP . . . provides   as fol-
      lows :     ‘If at   any time after conviction   and
Hon. R. A. Smoot Schmid - Page 3                         (V-712)


         by the manner and method as hereinafter                          pro-
         vided,, it be made known to the Judge of the
        Court in which the indictment                    has been re-
         turned,     that the defendant              has become insane,
         since his ctinvlction,             a jury shall         be empan-
         eled as in ordinary            Criminal        cases to’lry the
        QUEsTION ,OF INSANITY. ’ It has been held that
        the District         Court in which a defendant                   was
         convicted       has exclusive          jurisdiction         to try
         the issue       of insanity        arisin       after     convic-
        tion.      Ex arte Milllkin,               10 i Tex. Cr. R. 121,
        299 S. W. e33; Fix parte Davenport
        Cr. R. 326, 7 s. w. 26 589 60 A.'L%.T~~~3'.
        From the, opinion           on rehear 1ng in Escue~ v.
         State,     88 Tex. Cr. R, 447, 227 S. W. 483;'It
        appears      that a very similar              question       arose as
         Is before       us in the present            case.      Escue had
         been convicted         of a felony          In Shackelford          Coun-
        ty.      Pending his appeal to this                  court he was
        adjudged       insane     in the County Court of Travis
                       The judgment of conviction                 was afflrm-
            .
        Ynty-    He  attached       to  his    motion      for   rehearing      a
         copy of the .insanity            jud,gment ,, asking’ us to
        withhold       mandate should ~,his motion for. rehear-
         ing be overruled.             This we declined            to do
        upon the theory           that the c,ourt in which his
        ~conviction-occurred            would upon a proper               show-
         ing protect        appellant       in his statutory            rights.
         In view of the statute              and decisions           referred
         to it would appear that the issue of insanity
        after     conviction        should have been determined
         in the District          Court of Lubbock County, where
        appellant       was convicted,           and not in the County
        Court of Haskell            County,      and that the insanity
         judgment 3-n the latter              court Is not control-
         llng.l’
                In the. McKlbben Case,             the     Court,   amongi’other
things,      said:
                “Under the provision   of Article   921, . .
          It is contemplated   that the issue of Insanity
          after  conviction  should be tried    and determin-
          ed by the District   Court in which the convic-
          tlon occurred.”
                In view      of the     foregoing,         we answer     your    ques-
tions      as follows:
Hon. R. A. Smoot Schmid        - Page 4     (V-712)


              A convict,     who becomes insane while out of the
penitentiary      on parole,    conditional     pardon,    or reprieve,
is within     the purview of Article.       921, and the issue       of
his insanity      can be tried    and determined       only in the Dis-
trict    Court in which he was convicted,           and then only when
his application      for a trial     as to his Insanity,        acqompan-
ied by one or more of the af,fidavlts            required    by Article
922, is presented        to ‘the Judge of the Court.         Dotson v.
State,     195 S. W. 2d 87.
            The fact that a convict        becomes insane while
out of, the penitent   lary on parole,       conditional     pardon, or
reprieve   does not deprive      the District     Court in which he
was convicted   of Its-exclusive      jurisdiction       to try and
determine   the issue    of his insanity.

                                SUMMARY
              The Issue of a convict’s       insanity,    aris-
      lng while he Is out of the penitentiary             on
      parole,    conditional    pardon,    or reprieve    may
      be tried    and determined      only in the District
      Court in which he was convicted.             McKibben v.
      State,    148 S. W. 2d 274, and authorities           there-
      in cited.      Such issue may be tried         and deter-
      mined without      a revocation     of the parole,      con-
      ditional    pardon,    or reprieve    granted    to him.
      Art, 921, v.c.c.P.
                                       Yours   very   truly,
                                 ATTORNEYGENERALOF TEXAS



                                  BY
                                       Bruce W. Bryant,
BWB:wb                                 Assistant




                                  ATTORNEYGENERAL’
