Honorable R. N. %nship, Jr.
Superintendent, Gatesville
State Sohool for Boys
Gatesville, Texas

Dqar Mr. Winship;                      Opinion No. O-4603

                                      Re:   May the Superintendent refuse to
                                            accept a boy who has been adjudg-
                                            ed a delinquent child, and who has
                                            been duly oomnitted to the Gatee-
                                            ville State Sohool for Boys when
                                            suoh boy is either feeble minded,
                                            epileptio or insane, and other
                                            questions.

          In your letter of May 21, 1942, you have submitted for our oon-
sideration the following questioner

"1.   May the Superintendent refuse to aooept a boy who has been adjudged
      a 'delinquent ohild' and who has been duly committed to the Gatee-
      vi110 State School fm Boys when such boy is either feeble-minded,
      epileptic or insane (see Art. 5143a).

      (a) When having been adjudged feebleminded, epileptic or
          insane by a oourt of competent jurisdiction.

      (b) Yllhen
               having been diagnosed by the Sohool's physician
          or other lioensed physioian ~8 having one of the men-
          tal or physical handicaps indicated.

      (o) In the case of mental deficienoy or mental illness,
          when having been diagnosed as having suoh conditions
          by a qualified psychiatrist.

"2. May the leave or probation of a boy be revoked when it has been
    in effect more than twelve months if the Superintendent has not
    reoomendad to the Governor that a full release be granted suoh
    juveniles, (R.C.S. Art. 5128).

      (a)   Where eaah report for twelve consecutive months has been
            deemed favorable, but a violation of the conditions of
            the leave of probation having occurred after the twelve
            months' period.
 Honorable R, N. Winship, Jr, - page 2 (o-4603)



            May the Court, on its original conunitment,order a boy
            to be returned to this School who has been on a 'leave
            of probation'.

            (a) Less than twelve months
            (b) More than twelve months

            (The abow question is ask& with the assumption that the
            maxisunstime as .specified in the commitment order has not
            expired.)

      "4,   May the Superintendent retain a boy in this School beyond
            the maximum term as specified in the Court's order of com-
            mitment if his progress here doss not meet the provisions
            of R.&C., Art. 51261

      "5. mere the convsittingCourt has recalled a boy, may it later
          order his return to this School on the basis of the original
          coranitmentorder or must the Court recommit the boy in a new
I.'       proceeding?

      "6a Where the consnittingcourt has recalled a boy, may it later
          order his return to this School if the boy is then more
          than seventeen years of age?

      "?a   In the cass of a boy committed to this School, but with a
            suspended sentence, which is revoked after he is seventesn
            years of age, shall the Superintendent acoept such boy if
            he is aotually brought to this School?

      '%a   Shall the Superintendent accept a recall order when subnit-
            ted in the form of a letter signed by the Judge, or shall
            he honor only the reoall of boys based upon formal court
            a&ion as evidenced by a oertified copy of the court'.sor-
            dsr?

      "9. What is the status of a boy after he has been duly trans-
          ferred frcusthis School to another State institution, by
          order of the State Board of Control? For example, do the
          same procedures for releasing him from the latter institu-
          tion apply as to ths other inmates of that institution?
          Does the Gatesville State School for Boys have any juris-
          diction over thb boy? If so, describe the nature of its
          responsibility for the boy after he has been transferred
          to another institution. Does any responsibility, on the
          part of the Gatesville ,StateSohool for Boys exist after
          hc has been released from the latter institution?
Honorable R. N. Winship, Jr. - page 3 (O-4503)



     “10.   Xindly indicate the form in which the Superintendent
            shall recommend to the Governor that a full release
            be granted a boy who has fulfilled the conditions of
            his lsaw of probation satisfactorily owr the twelve
            months' period as prescribed in R.C.S., Art. 5126.

     *11*   Is this Sohool authorided to pay transportation (equiva-
            lent to bus fare) to probation officers, sheriffs or
            other county representatives who frequently transport
            boys released on a leave of probation back to the county?

     "12*   Is the Superintendent required to have a boy attend the
            'school of letters' when he is of the opinion that he
            will not benefit further by',suohacademic training and
            that it is'to the best interests of the boy to assign
            him full-tims to a definite trade assignment. (i.e.
            feebleminded, older boys vho arc retarded eduoation-
            ally, etc.)"

     Question 1, with its subdivisions (a), (b) and (c), involves the
oonstruction of Section 4, of Article 5143s~.of Vernon's Annotated
Statutes, as passed in 1937. The material portions thereof read as
follons:

          "Whenever . . . any boy between the ages of 10 and 17
    years shall be tried or brought before any juvenile court . . .
    or District Court . . . charged with being a delinquent child
    as this term is hersin defined, the Court may, if in the opin-
    of the judge, the Juvenile Training School is the proper place
    for him e . . oosssitsuch Dera9n to the Juvenile Training
    School for boys . . e during %hm mino?ityof said person. Do
    person shall be oomnitted to either school who is feeble+ninded,
    epileptic or insane, but if so committed the State Board of
    Control shall have the authority to immediately transfer to the
    propsr elecmosynary institution. Any    rson consnittedto either
    school who is afflicted with a wncre,+T tubercular or other oom-
    municable disease shall be assigned to a,distinct and separate
    building of the institution and shall not be allowed to associ-
    ate with the other wards until cured of said disease or diseas-
    es. Ho person shall be admitted to either of said schools until
    he or she has been examined by ths school physician and such phy-
    sician has issued a oertificate showing said person's exact state
    or condition in reference to said qualifications hereinabove en-
    umerated."
                                                                          .   ,-




Honorable R. N. Winship, Jr.   - page 4   (o-4603)



     Under the plain reading of said statute, the trial court should
not comait a person to the Juvenile Training Scgool "who is feeble
minded, epileptic or insane." The remaining portion PE the above
sentence then speoifically provides that if the tr+al court should
commit such a person to the training school, the Stats Board of Con-
trol shall immediately transfer the personti the proper elesmosynary
institution,

     The last sentence of Section 4 of said Article 6143a reads:

          '"Ro person shall be admitted to the school until
           he has bean examined by the school physician and
           such physician has issued a certificate showing
           said person's exact state or condition in refer-
           ence to said qualifications hereinabove enumerat-
           ed."

     If a child that is feeble minded, epileptic or insane has becn by
accident or otherwise committed to the Juvenile Training School by the
trial court, the Superintendent should receivs said child, but the mat-
ter shoultlbe immediately referred to the Board of Control, which Board
is authorlcsd, empowered and dire&cd to have said child placed in the
proper eleemosynary State institution.

     Af'terthe boy has been oonsaittedby the trial oourt, and prior to
the time he arrives at said institution, if the school physician finds
that he has become either feeble minded, epileptic or insane, the boy
should bs admitted and then reported to the Board of Control, whose
duty it is to plaoe him in the proper alecmosynary State institution.

     Answering subdivisions (b) and (0) under question 1: You are ad-
vised that no physician, other than the school physician, has either
the right or the power to pass upon the physical ooadition of the boy
cowitted to the institution. The Legislature has limited this power
and prerogative to the school physician.

     Your question 2 and its subdivisions, and your question 4 involve
the oonstruotion of Article 5126 of the Revised Civil Statutes, the
material portion of which reads as follows:

           "When employment has bean secured for any inmate,
     he shall be sent out on a furlough with ths condition
     that the person furloughed and his employer shall send
     a written report at the end of eaah month thereafter for
     a period of twelve months to the furlough officer stat-
     ing the habits and demeanor of said furloughed person.
     If each report bs favorable, the superintendent shall
     recommend to the Governor that a full release be grent-
     ed such juvenile and that his term of cccmaitmentbe
.   -




        Ronorable R. 8. Wlnship, Jr. - page 6   (O-4603)



                  terminated. If any monthly report shall bs
                  deemed unfavorable, or be not sent as herein
                  provided, and the Superintendent should be-
                  come convinced before the expiration of said
                  tmlve months that said furloughed psrson
                  should be returned to the school for further
                  training and discipline,,the said inmate
                  shall in that event forfeit his leave of pro-
                  bation, and shall be returned to school. . . .
                  The Governor shall at any time have the power
                  to grant a pardon to any inmate of said school.*

                   This statute makes it mandatory upon the Superintendent to
        recosmmnd to the Governor that a boy be granted a pardon who has been
        on a furlough for twelv&months, and has in all respscts merited ssme.
        It does not, h-or,    require the Governor to grant the pardon. If at
        any time before the Governor issues a pardon the conduct of the jwen-
        ils be such as the Superintendent of the institution thinks justifies
        the act, he, the Superintendent, can revoke or terminate the furlough,
        regardless of whether he has reoommended a pardon be granted. In other
        words, under said statute, the Superintendent of the Jwenile Training
        School has full and complete power to revoke the furlough until the
        sentence has expired or the boy has been pardoned.

                   Answering your question 4: The Superintendent should not
        retain ,aboy in the school beyond the maximm tens, as spsoified in the
        court's order of ocmmitment.

                   Answering your questions 3, 5, 6, 7, and Sr Under Article
        5126 of the Revised Civil Statutes, ths inmates may be furloughed by
        tha Superintendent, and the furlough may be revoked by the Superinten-
        dent.

                   Under Article 2336, of the Revised Civil Statutes, as amended
        in 1941, the trial court has besn given full power and authority to change
        its order of cormaitmentby the following languager

                      "Such order shall be subject to change by further
            orders of the court with reference to said child; and the
            court shall have the power to change the 6ustody of such
            child or to entirely discharge it from custody whenever, in
            the jud@aemt of tRe court, it is to the bsst interest of the
            child to do 800"

                   If the trial court who issued the order ooinaittingthe boy to
        the institution should make sny further court order relative to the care,
        custody or control of the boy so committed, it will, of course, be your
        duty to obey the order or orders of the trial court, regardless of how
        you receive notice thereof.
Honorable R, N. Winship, Jr. - page 6   (-04603)



        Answer+ng your queetion 9:   “After the State Board of Control
has transferred an inmate from the Jtinile Training School to some oth-
errState institution, the Juvenile Training 8ohool loses all oontol over
said boy, and has no further responsibility relative thereto, unless the
boy is thereafter properly and legally~retramsferred to said institution.

         Answering your question 10: There is no partioular form neons-
sary for the Superintendent to make his reoomaendation to the Governor.
Simply a letter to the Governor, giving the boy's name, and to whom he
has been furloughed, and stating that in your opinion the boy's conduct
during the twelve months' (or more) period has been suoh as would just-
ify the Governor's pardoning the boy, withthe request that the Governor
issue the pardon, is all that the law requires.

         Answering your question No. 111 You are not authorized to pay
the transportation to probation officers, sheriffs, or other oounty rep-
resentatives, when they transport boys released on leave of probation
baok to the boy's hems oounty.

         Answering your question 12: Under Articles 5119 and 5126 of the
Revised Statut&s, the Board of Control and the Superintendent are requir-
ed to establish a system of grading, tsaohing and promotion in the school,
and the question of the kind and class of sahooling given to inmates is
left to the judgment of the Superintendent and the Board of Control.

                                            very truly yours

                                        ATlWfNEY GENERAL OF TEXAS

                                        By
                                          s/ Geo W   Barous

                                               Geo. H. Barous
                                                    hssistalt




APPROVED JUL 18, 1942
s/Gerald C. Mann
ATTOmEY GBNERAL OF TBXAS                                This Opinion oon-
                                                     sidsred and Approved
                                                     in Limited Conference
