Texas Prison 8ystem
Suraau 04 Rsoorda and Identification
Huntsville, Tvxas

Attentionr   Mr. J. C. Roberts

Eaar Sira                                   Opinion No. O-5721
                                            Ret Insana Prison Inmates.

              'Aa have carefully  considered your requecrt for an opinion
of this department upon the question of ocnnputing time and over-time
credits of those convict.8 who have been adjudged insane and omitted
to a state hospital   for the insane.    Ye quote in part from your letter
aa followsr

               "Aa custodian of the records of the inmates of
       the Taxas Prison System. I am endeavoring to canply
       with the provisioas   of ths recent oQlmPutation law
       oontainsd in S. B. 239 made effective   as of May 22, 1943.

                "In aotting up the individual   records in ac-
       cordance with this law, I find that this l?ureeu still
       carries on its records. many inmates rho were at
       various times adjudged insane by the Walker Co&Ay
       courts and OOnu&tted to atate institution8      for the
       insane, particularly    the Rusk Stats Hospital.    I am
       aware of the fact th8t we shall give eaoh such in-
       mate credit for any and all aaanutstion      of tima and
       overtlmr credits earned to and including the date
       of removal from the penitentiary,     however the ques-
       tion   ha8 arisen aa to what the inmate would be en-.
       titled   to after leaving prison and while being oon-
       fined    to the Asylum.

              "I should like very much to have your opinion
       a8 to whether thaae inmates are entitled  to the ten-
       efits of the oaarmutatlon of time aa preaoribed by
       law, Or should they be aleared of our records entire-
       ly, or just how they should be truatsd."

              We have found no Texas rtatutes upon the topic of whether
or not the tima a oonvlot spends in a stats hospital na stated in your
request is to be counted BI tiae served on hia prison ssntsncs.   m
have likswiae bean unable to locate any judicial  authority in Texas
Ten*   Pri#OB   system,   page 2               O-5721




upon this rubject.         In fact,  our rearoh ha8 di~olo~sd but trro cams
whenin the oourt has disousssd the question of ahether or not the
the whioh a oonriaf, after oonrlati~              and crmmifinent to a penal in-
8titution,   .spmda in a stats hospital         is to be credited on his smtence.
In the oam of Stat0 of Minnesota v. J. Ii. Jorgenson, 62 A.L.R., p.
244, it ns held that where a pereon while rening               a sentenaa in a
oounty jail I8 duly oamittod           to 8 etato horpital for the intane and
there ooafimd.       thm tima MB cn hir Bentease rhilg ao confined In
the latkr     inrtituticn.       The court pointed out however that a Mime-
sota statntr rpoifioally          provided that L prlroaw serving time in a
state prison, rhc is adjudged ln11ane and committed to l etats insane
lrylum, ahall have the time he ir confined in thm latter counted as
part of tha term of his aentmbe.            &me Tens haa no rimilar statute
wa do act think thir case can be sited l8 an authority for the propc-
sitiw    that the time l     pnt in an itwane arylum rhould be counted as
part of the wntenoe.

                In the case of State ‘I. Bouillstte, MS La. 48. 111 So.
491, the oourt held that the timm a prlroner was confined in the
priron hospital    almuld be aounted an part of hir time in jail.  We
lik@wiae do not believe this oaae ir any authority upon the subject
under ooaridsratlon    sinoe our &ate inlana l8ylum6 mm not under
primon suprvi~ionn.

              Some inferenae to the solution   of thin quartion oan be
ascertained  fran certain rtatuter and decl#ions upon the inaane and
the punishment of orlminala.

                Article   2 of the Rnal    Code prorider:

               *Ths objeot of punlrlwat       ia to ruppresa criw
       and reform the offondw.’

                Artiola   34 of the Anal    Code in part roadat

               “. . . . No person rho beoomr inrme after he
       ir found guilty rhll    be punished while in ruoh oondi-
       tion.”

              Artiolsr 925 and 926 of Vwnon’a           Code of Criminal Pro00 -
dure rewpeatively   pmvid*r
               YJpon the trial of an irrue of inranity, if the
       dafandant ia found to be inrano, all firthor prooeedinge
       in the eaaa against him shall b *n#pended’@il      ha be-
       *me. mm.”

              *If the defendant beoomsa sane, ha          @hall M brought
       befor, the 00w-t in nhioh ha uaa aonvioted          or before the
       matrid    Court in the Counw in whiah the           defendant 16
       locatmd at the time he is alleged to have          beOOm~UUIO; and,
.   -




            a jury shall be impan.;.d in the Court before which
            su?h d.fe=mdSnt is brought to try the issue of his
            srnity; wd, if h. is found to be ssv., th. convic-
            tion shall be enforced nsainat him as if th. pro-
            acedings had nwcr keen suspended."

                    If the purposn E? our criminal cod. is in part to r.fosys
    the offender.    csrtainly   this  purpos. would not bs reached by punishing
    a person who is insane; efforts to reform xucb a pwson would in most
     !.nstanoes be fuutll..    Also (IS indicated by Artiol.   54 abows quoted, it
    appears to have bean the intention        a0nny.d ther.by that laws.     permns
    should not tm subj.ct to any punirhwnt while la such a afate.           A8
    shown by the abcr. quotation6 from the Cod. of fklminal Prooedure, a
    person oh.0 IH rJ!lty of an offans. aad ie found to be Inrum, all pro-
    ceedings as kc :h. ariM) should be suspended.         After such a p.rscn has
    tagaimd    hlr sanlly,    h. is returned to anww th. orlminal charges so
    nad. against n.i*.

                  :‘h. statutes  n. have allowing oomiats ovw time for good
    conduct a~. nracted "in order to anaouragr prison disciplia.."    S..
    ~rtirtl. 6164 !a, Vernon’s  Civil 6tatut.S  et T.%sS.

                    -!I I? 7s~.   Jur.,   p. 815, via find   the fallowing   lanyagar

                    "4 psrsnn who has be.n s.nteno.d to impriso~.nt
            In th. pcoitantiary    or a jail can s.rv. hia s.nt.ncs
            only by aatunl incarawation      within Its mlls;  no othar
            kjnd of' custody tilt answr or di8bharg. such lnprison-
            msnt. . . .-    (Citing SartU V. Stats, 10 Grim. kpp.
            66:.  38 Am. Hop. 649.)

                    There are som. exoeptions to the rule of law announced in
    the for.go!ng   quot&ion,    suah as ar. found in Article 776, Vernon*s
    Cod. of h;minnl     Procedure, as amended in 1951, and Art1010 6203,
    Flovlssd Civil  Statutes,   but thay have no application  to th. qu.stion
    we are hers acnsidorfng.

                  ?is ar. of th. orinlon that the foregoing discussion dis-
    Cosss a l.gisirt+vc    policy in ?.xsa of not subjsc+Ang insan. persons
    to or;minal pun'.shment and that the time sp.nt by an insane in a atat.
    hospital  ahcu!d not bc counted cn his senteno. as a criminal.

                   't 1s fJrth.r our opinion that the individual   records of
    tb.ss  ccnvIctr rho nra in inaan. institutions    should not be aomplstely
    roGr*d   for aos.c of these individuals  may at scsso Puturs dats rsgain
    his snnity.    If such a contingency should arise, th. reoords would bs
    needed tn ordnr to have a complete history of eaoh cas., as such a
    person would bs retunsd     to th. propsr penal institution  to complots
    th. sentence tslnporarily   suspandsd by his Insanity.
                The ZongolnC, aonaluriom             pmoluded      my dieoumion         of
other matterr    oontained   in   your   rrquelt.

                                                       YOU-l    wrytruly
                                                           GRlllERILOF TERM
                                                    ATTGRNRY



                                                       Ry r/bmt             6.   Kooh
                                                               Robort       0.   Kooh
                                                                        Arrimtant


ROK:dbr+o


APPROVED JAN. 26,    1944
 s/r,lwor    Rsllorr
ATTORNEY    WNISRALOF I%%8




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