Mr. John H. Winters                   Opinion No.   w-796
Commissioner
Department
    .   - of Public Welfare           Re:   &uestions Toncerning
AUStln,   WXaS                              tne legal determination
                                            of restoration of recip-
                                            ients of public assist-
                                            ance, who have been
                                            judicially declared to
                                            be of unsound mind or
                                            mentally incompetent,
                                            under provisions of the
                                            Texas Mental Health Code.
Dear Mr. Winters:
       You have requested an opinion of this office relative
to the effect of a discharge from a mental hospital of a
patient who has been theretofore adjudicated by a court to
be mentally incompetent. The questions call for an interpre-
tation of certain provisions of the Texas Mental Health Code
(House Bill No. 6, Acts of the 55th Legislature, Regular Session,
19 7, Chapter 243, page 505, Codified as Articles 5547-l through
5527-104 of Vernon's Annotated Civil Statutes, which became
effective January 1, 1958).
          Specifically, you asked the following questions:
               "1. If the person was adjudged to be
          of unsound mind or mentally incompetent by
          a court prior to the effective date of House
          Bill No. 6, Acts of the 55th Legislature,
          Regular Session, 1957 (January 1, 1958)and
          was discharged from the state hospital prior
          to that date, is the certificate from the
          superintendent of the state hospital suffi-
          cient to restore the civil rights of that
          individual so that he may receive, endorse,
          and expend his ptlblicassistance check with-
          out a guardian or without a judicial deter-
          mination of his restoration?
               'k2. If the person was adjudged to be
          of unsound mind or mentally incompetent by
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                                                                                                                14
     :
               ‘.




                                                                                                        : ;
                     Mr.. John R. Winters,.        page 2   (w-796)                          I
                                                                                     ‘.
                                  a court prior to the effective       date of,Douec
                                  Bill No. 6 and was discharged by the”atate             ’
                                  hospital   aftef the effective     date of Houee
                                  Bill No. 6, ia the certificate       from the auper-
                                  intendent of the atate hospital        aufflclent  to
         .I.              .,,     restore the civil   rights of that lndlvldual       80
                                  that he may receive,    endorse, and expend his
                                  public assistance    check wibhout a guardian or
                                  without a judicial    detertiinatlon    of his
                     .,           restoration?
..
                                         “3. If a person wae adjudged, to be
                                    ‘mentally Incompetent’ by a court after the
                                . effective’ date of House Bill No. 6 and was
                                   discharged from the &ate hospital, after
                                   that date, 18 the certificate       from the su-
                                  .perlntendent   of the-‘&ate    hoepital    eufflclent
                                   to restore the civil    rights’of,that      indlvl-
                                   dual BO that he may receive,       endorse’; an& ex-
                                   pend his public aeslstance      check without a
                                   guardian or wlthouta      Judicial    determlnatlon
                                   of his restoration?”
                                You inform    u8 in your opinion request that it ha8 been
                       the policy of the Department of Public Welfare to require,           with
                       respect to all three classes of persons above ~mentloned, either
                    .~the appointment of a guardian for the incompetent,            or an order
                     ‘.*of restoration    from the court, as a prerequlslte       to the making
                       of pub+      assietance   payments.    It Is obeerved,that    the Depart-
                       ment adopted such bplicy merely In pursuance of ite general duty
                        and authority to administer program7 of public aealatance effec-                    j
                       tively   and in accordance with the~,purpoeee of the respective
                        enabling statutes,     purposes which would douhtleee be thwarted
                       in case of a recipient      who wa0, for Borne reason, incapable of ‘,
                    ,. receiving    and disposing of hla, aeaiatance check in a reasonable
                       and responsible-manner.        Since such policy.apparently     doea not
                        stem from an express prohibition,       Federal or State, against
                       making payments of public assistance         funds to pereone deemed
                       to be incompetent,      the following ~opinion is oonfined to the le-
                       gal effect    of a discharge~of     a pereon,from a mental hospital,
                       under the Texas Mental Health, Code. ‘~
                              Your questions deal with two eubjects:     .the appointment
                      of guardians for incompetents,    and the reetorationot      the civil
                      righta of incompetents.   Flrst,~we   will,briefly    dispose of the
                      question insofar a8 it, relates to the appointment of guardians.
Mr. John H. Winters, Page 3 (Ww-7%)


Neither the adjudication, commitment to a state hospital,
nor a discharge therefrom, under and',byvirtue of any pro-
vision of the Texas Mental Health Code, has any effect
upon the appointment of a guardian. Guardianship matters :
are controlled by the provisions of the Texas Probate Code,
(Sections 1.08,et seq;and 415, etseq).~ The Texas Mental
Health Code specifically provi.des,in Section 5547-84, as
follows:
       "No action taken nor determinationmade under
        this code and no provision of this code shall
        affect any guardianship established in accord-   '
        ante with law."
(See also Attorney General's Opinion No. W-330 for a
further discussion of guardianship matters.)
       It might be noted, however, that the Texas Probate.
Code now authorizes the appointment of a guardian, not only
for "incompetents", but also, "for persons where itis nec'-
essary that a guardian be appointed to receive funds from
any overnmental source'or agency" (~Section4, Texas Probate
Code$ . And Section 114 of the Texas Probate Code, in setting
out the facts which must exist before a guardian may be ap-
pointed, provides in the .caseof "a person for whom it is
necessary to have a guardian appointed to receive funds due
such person frosnany governmental source" that, "a certifi-
cate of the executive head, or his representative of the
bureau, department, or agency of the government through
which such funds are to be paid, to the effect that the ap-
pointment of a guardian is a condition precedent to the pay-
ment of any funds due such persons, shall be prima,facie
evidence of the necessity for such'appoin'cment." Thus,.the
same facts re~lativeto the mental ccnpetency ?f a person,
as determined by the head of a mental hospital, might also
be used as evidentiary facts in a guardianship proceeding
brought under the provisions of the Texas Probate Code.
       Secondly, your question concerns restoration to
mental competency Jr sanity of a person thereto adjudicated
by a court to be mentally incompetent or of unsound mind.
Prior to the adoption of the Mental Health Code, it was well
settled that the adjudication by a court that~a person was
of unsound mind, or mentally incompetent, established the
status of that person as of that time, and that such adjudi-
cation gave rise to a presumption that such person so adju-
dicated continued to be of unsound mind, or mentally incom-
petent, until such presumption might later be rebutted in a
proceeding brought for that purpose. (That is, brought un-
Mr. John H..Wlnters, page 4 (WW-7%)


derthe so-called restoration statutes.) This rule was'
stated In the case of Elliott v. Elliott, 208 S.W.2d 790
(Civ.App. 1948, error ref. n.r.e.) as follows: "The
implication of the holdings in Williams v. Sinclair-
Prairie Oil Co., 135 S.W.2d 211 (Civ.A p. 1939, error
re ., u gm. car.); Bagel v. White, 16I;S.W.Zd 309 (Civ.
App. 1943, error ref. W.-ton           v. Stewart, 191
S.W.2d 798 (CiV.Ap    1945); and-             94 S.W.2d
                                 adjudica ion of insanity
411 (Civ.App. 1946P', is that an --=3-
by the county court raises a continuous rebuttable pre-
sumption of insanity, and that only a judgment of restora-
tion of sanity, entered in a proceeding brought for that
purpose, will be sufficient to conclusively remove such
rebuttable presumption."
       The question raised now is, did the Texas Mental
Health Code change the above law? The applicable pro-
visions of the Texas Mental Health Code on the matter are
as 'follows:
            wt.    5547-al., Effect -
                                    of Discharge

             (a)   .   .   .

             (b) The discharge of a patient who
       has been found to be mentally incompetent
       terminates the presumption that he is men-
       tally Incompetent."
       (Acts 1957, 55th Legislature, page 505,
       Chapters 2 and 3.)
Art. 5547-82 of the Texas Mental Health Code provides a
procedure for a hearing and an adjudication of the question
of restoration and discharge of a patient still committed
to a mental hospital.    It might be noted here that sub-
section (e) of this Art 6--
                         cle which provided, "The hearing
shall be before the court without a jury" was held to be
unconstitutional in the case of Swlnford v. Logue, 313
S.W,.2d547 (Civ.App. 1958, Writ dism. on application of
petitioner)._7
       And finally, Article 5547-83, (as amended by Acts
1959, 56th Legislature, page 887, Chapter 409) now pro-
vides as follows:
            "(a) The judicial determination under
       this Code that a person is mentally lncom-
       petent creates a presumption that the person
       continues to be mentally incompetent until he
Mr. John H. Winters, Page 5 (W-796)


       is discharged from the mental hospital
       or until his mental competency is re-
       determined by a court.
            (b) The judicial determination that.
       a person is mentally ill or the admission
       or commitment of a person to a mental hos-
       pital, without a finding that he is men-
       tally incompetent, does not constitute a
       determination or adjudication of the men-
       tal competency of the person and does not
       abridge his rights as a citizen or affect
       his property rights or legal capacity.
            (c) When any person under the pro-
       visions of this Code shallhave been com-
       mitted as a patient to a mental hospital
       for any p,eriod,regardless of duration, by
       order of a county court, and shall have
       been discharged and released by such hos-
       pital, such person may file application
       with such county court for an order adju-
       dicating that he is not now mentally ill
       or incompetent, to which application shall
       be attached a certification attesting to
       such facts, signed by an attending physi-
       cian at the hospital to which such patient
       was committed. The court may enter an
       order granting such application; but, in
       connection therewith, he may conduct a
       hearing and summon such witnesses as in
       his judgment may Abe necessary to satisfy
       him as to the merits of the application."
       As amended Acts 1959, 56th Leg., p. 887,
       ch. 409, % 1.
Subsections (a) and (b), supra, were contained in the ori-
ginal Code as ado ted in 1957, (effective January 1, 1958),
but subsection (cP was added in 19%.   Such subsection pro-
vides a procedure for an order of the court adjudicating
that he is not now mentally ill or incompetent after dis-
charge from a mental hospital.
       It is the opinion of this office that, under the
Texas Mental Health Code, a discharge from a mental hospi-
tal, does not, in itself, effect a restoration of a mentally
incompetent person. Such act, that is, a discharge from the
mental hospital, merely "terminates the presumption that he
is mentally incompetent." An action in the county court is
still necessary to adjudicate that question. The Code, as
Mr. John H. Winters, page 6 (w-796)



                         -. . sets out the procedure for
amended in 1959, specifically
                   -.
such adjudication aster alscnnrge rrom the mental hospital,
The emergency clause    the above auoted Article 5547-83,
provided; "sec. 3, The fact that there is not now-any pro-
vision for judicial restoration of persons adjudged mentally
incompetent under the Texas Mental Health Code, creates an
emergency . . . etc." Had the Legislature intended that a
discharge from the hos ital to be tantamount to a restora-
tion, then subsection "i
                       c), supra, would be superflous.
       All three of your inquiries ask the common question:
"Is the discharge and the certificate from the superintend-
ent of the hospital sufficient to restore the civil rights
of that individual . . .?'I The answer, as to all three
situations, is: The dischar e and the certificate of the
                     +self
superintendent does no ,          , affect such restoration.
Such e.ctsmerely terminate the presumption of mental incom-
petency existing by reason of the original adjudication.
There is a distinction between an adjudication of a fact by
a court (i.e., a restoration), on the one hand, and a
"termination of a nresumption" by an act of the head of a
hospital, on the other hand.
       With respeCt to the time when such acts took place
(that is, the time of the orlginal adjudication and dis-
charge), and whether the old law or the new Code would apply,
you are referred to Article 5547-100, which provides:
            "This Code applies to any conduct, trans-
       action or proceeding within Its terms which
       occurs after the effective date of this Code,
       whether the patient concerned in the conduct,
       transaction or proceeding was admitted or com-
       mitted before or after the effective date of
       this Code. In particular, the discharge under
       this Code of any patient committed to a mental
       hospital under the prior law terminates any
       presumption that he is mentally incompetent.
       However, a proceeding for the commitment of a
       person to a State mental hospital begun before
       the effective date of this Code is governed by
       by the law existing at the time the proceeding
       was begun and for this purpose the law shall be
       treated as still remaining in force. Unless
       these proceedings are completed within nine
       (9) months after the effective date of this
       Code they shall be governed by the provisions
       of this Code." Acts 1957, 55th Leg., p. 505,
       ch. 243, 8 100.
.   .




        Mr. John H. Winters, page 7   (w-796)


               Thus when a person was adjudicated mentally incom-
        petent (or unsound mind) and discharged, both prior to the
        effective date of the Texas Mental Health Code (your ques-
        tion No. l), the Code is not controlling since it states in
        express terms that the Code applies to any conduct, trans-
        action'or proceeding within its terms which occurs after the
        effective date. The Code would apply to the fact situations
        stated in your questions 2 and 3, since it states as follows:
        "This Code applies to any conduct, transaction or proceeding
        within its terms which occurs after the effective date of
        this Code, whether the patient concerned in the conduct,
        transaction or proceeding was admitted or committed before
        or after the effective date of this Code . . .'I
               We now allude briefly to the two examples of Certifi-
        cates of Discharge mentioned in your letter. Such Certifi-
        cates are provided for in Article 5547-80, subsection (d),
        which provides:
                    "Upon the discharge of a patient, the
               head of the mental hospital shall prepare
               a Certificate of Discharge stating the basis
               therefor . . ."
               We agree that, in at least one example, the superin-
        tendent did not purport to express an opinion as to the
        patient's restoration or recovery. However, it is the fact
        of the discharge from the hospital, and not the issuance of
        such Certificate, which has the effect of terminating the
        presumption of mental incompetency. Subsection (b) of
        Article 5547-81 states, "the discharge of a patient who has
        been found to be mentally incompetent terminates the pre-
        sump,tionthat he is mentally incompetent." In this con-
        nection, Article 5547-g of the Code authorizes the Board for
        Texas State Hospitals and Special Schools to, "prescribe the
        form of applications, certificates . . . provided under this
        Code and the information required to be contained therein."

                                   SUMMARY


               (1)   A person judically declared to be
                     of unsound mind and committed to a
                     State hospital, and subsequently
                     discharged therefrom, all prior to
                     the effective date of the Texas
                     Mental Health Code (January 1, 1958),
                     in order to be restored to legal
                     competency, must proceed in the
                                                        ^   .




Mr. John H. Winters, page 8   (ww-796)


                 .. court in a restoration pro-
             county
             ceeang   now provided by law
               Article 5547-83, Section (3) of the
             c odg, and his discharge has no le-
             gal effect upon the evidence or proof
             required to determine his mental
             status.

       (2)   A person adjudicated by a court to
             be mentally incompetent, whether
             before or after the effective date
             of the Texas Mental Health Code, and
             discharged from the mental hospital
             after the said date (January 1, 1958),
             -likewise      proceed, in court, as
              rovided in Article 5547-83, Section
             ? cl, to be legally adjudicated mentally
             competent, but such person would be
             presumed to be mentally competent.
                               Very truly yours,
                               WILL WILSON




EMcV:jf:pm

APPROVED:
OPINION COMMITTEE
W. V. Geppert            , Chairman
Cecil C. Cammack, Jr.
Marvin H. Brown, Jr.
Jot Hodges, Jr.
Leon F. Pesek
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
