HOR. MoyQe L. Kelly opinion No. v-998. 

Bxeoutive Dlreotor 

Board for Texas State Re: Several questions reHospitals & Special Schools latlve to the prooeAustin, Texas dure to be followed to 

discharge patient8 

Dear Sir: from State hospitals. 

Reference.1~ made to your reoent request which 

reada in part aa follbwa: 

"This Board is unable.to interpret oertaln portions of H.B. Ho.856, Aota of the 51st 

poget- * Section 3 of. the bill reads aa 

: 

"'Qec.3. Whenever ah inmate of a Stste 

EospZtal thus committed shall @& found by the 

Superintendent thereof to have recovered to 

an extent that he Is no longer of~u~ound mind, 

WZ shall b&the duty of a.sld Superintendent to 

%ninedlately oertify that faot~to the Jude 

');he county Court of the county iti which a% 

f 

pltal la looated. and file an affidavit aaklii:BRfor the restoration of said inmate. such 

restoration proceedlnRs to be heard and detelimined in the same ma-r as now Provided bs 

law. It shall be the duty of said Judge to 

mt and try such prooeedlnga at Ohs earlleat possible time.' (Rmphsals~supplled.) 

"It would appear.from the above quoted 

section that the restoration prooeedlngs would 

necessarily have to be held-la the county in 

which the hospital la located. However, in 

Seation 4 of H.B. Ho.856 It la >proHded: 

"'3ec .4. Whenever an inmate of a State 

&spite1 shall have baerm thua certified by 

the Superintendent thereof aa recovered, it 

shall also be the duty of said Superintendent 

to immediately release said inmate, If not already on furlough, from said hospital, in the 
. - 

Hon. Moyne L. Kelly, page 2 (V-998) 

. 

same manner and aubjeot to the saat6 provisions 

as la provided in Article 31931, Revlaed Civil 

Statutes of the State of Texas,, 1925, but ln 

i&o'6v&mt shall &u&h inmate be d'ia&ha~rpr~rn 

said hospital unless and until his restorstlon 

has been adjudued~ by a court of competent jurTadictloa. The rl ht of rearrest and reoonflnemsnt co such hfapltal shall aontlnue to 

exist as to such inmate while dn furlough pending restoration protleedlnga in the same manner 

and to the same full extent as is now provided 

in Artlole 31931.' (Emphasis supplied.) 

*From Section 4'1t would app6ar~that the 

ianrape may be discharged from the hospital 

vg?n his restoration has been adjhd$ed by a 

+ur$ of oompetent jurisdiction. 

have the proceedings in &e countZ&S in uhlch ' 

the hpapltal is looated;%gardl6as 6f where 

the ~patlenta might W residing? (Furloughed 

pet.ients may be several hundred. miles away 

f&k the county in which the hospital is ladated.) 

"&Wilon Ho. 2: If your ansver%o~QuesWon g,~~.~% ~~.~~~,..~h~,.~afflrmative, vwuld~such 

prwvl$lti 5s cwtistltutlwnal in requiring reatoratlwn proceedings in only seven (7) owunties in the State of Texas, therebg~,deprlving 

the inmate from having s restoration prwceedimg in his oounty of legal residence? 

~-"~*'*3lace H.B. Ho.856 allows dlacharge wnIy by.restoratlwn, it la neceaaarJr.f6r the 

hospitals to carry patients as being furloughed, escaped or transferred to another State or 

Federal hospital; and alnae Article'31931 allows furloughs for 0~ year, ~-examlaatlon at 

the end of one year, and oontlnuaPae of furlough 

for two additional yea-, the Ewllowlng questions 

iirlae: ~~ 

What should be dose at 

the e with patients who are 

not mentally capable of belag restored, but 

who are well enough not to need hospltallza-. 

tiwm? 
- . 

Hon. Moyne L. Kelly, page 3 (v-998) 

I 

"Question Iiw. 4: How 

be oarrled on the hospital 

p&lent is not returned at 

first year of furlough for 

amWatlon? 

"Question Bo. 5: Hw 

e carried on the hospital -_. 

ahouId a patient _-_ - 

cenaua zr rurloughed or esoaped and later oommltted to a State 

or Federal hospital In another State?" 

should a patient 

oenaua when such 

the end of the 

the required exIt was held in Hatton v. State B&d of Con146 Tex.160, 204 3.%l.2d 390 (1947) that it was 

uty of the Superintendent of a 3tad Hospital to 

discharge a patient from the hospital when he~had determined that such patient had recovered to the extent 

that it was nw longer aeoeaaary that he be held ln restraint; aud that a patlent who had been aw dlaoharged 

from the hospital while on furlough owuld not be reaommltted to the hospital vlthout a jury trial even though 

his sanity had not been legally restored. 

At the time of the above deolalwn there was no 

mandatory provision in the law direotlng S@mrintendenta 

to have a person'8 sanity judicially restored before being discharged from the hospital. Suah wsa one of the 

obvious purposes of House Bill 856, Acts 51st Leg., R.3. 

1949, ch.435, p.810, and codified aa.Artlcle 5561b, V.C. 

3. Such Aot provides in part as follwa: -. 

"3ectiwn 1. l%e prwvlalwna M$hla Act 

ahall.apply to all persons who have'been both 

adjudged of unsound mind and as needing restraint by a jury under the provisions of 

Title 92, Revised Clvil3tatutea of the State 

of Texas, 1925, entitled lLuuauy-Judlcial 

Proceedings in Cases of,' and committed to 

a State Hospital in acoordauce therewith, 

and not charged with a orlmlnal offense, and 

tb none other. 

"Sec. 2. The provisions of this Act 

are intended to be and shall be both mandatory and exclusive. 

"Sea. 3. Whenever an luma$e of a State 

Hospital thus oommltted shall be found by the 

Superintendent therewf to have recovered to 

an extent that he la no longer of unsound 
HWU. rt0gne L. Kelly, page 4 (v-998) 

mind, It shall be the duty of said Superlntendent to lmmedlately certify that faot to 

the Judge of the County Court of the county 

ln vhlah said hospital ia located, and file 

an affidavit asking for the matoration of 

said Inmate, such restoration prooeedings to 

be heard and determined In the same manner 

as now provided by law. It shall be the 

duty of said Judge to docket and try such 

prwc?dinga at the earliest possible time. 

. . . 

That it waa the intent of the Legislature in 

enaotlng House Bill 856 to provide a mandatory and exaluslve method for Superintendents of State Hospitals 

to bring about a judicial restoration of a person's 

aenlty before discharge from the hospital is aubatanUzgi'by the emergency olause of the Act. It is there 

: 

~. "The present anomalous and unsatisfactory owndltlwn of the law In thls:regard, 

vhereln a reowvered lunatic aan be dlaoharged by the,Superlntendent of a State hospital 

without the necessity for a restoration prw- 

'oeedlng, but caunwt be returned to said hoapita1 without another adjudioatfwn‘wf lusanlty,,~ 

yet remains under the legal dlaabllltiea of 

the.,orlginal adjudlcatlwn untll~~restwred in 

spite of hla discharge, has resulted in great 

~.lwas znd aonfuslon to many lnnooent people, 

. . . 

In view of the foregoing it la-our wplnlwn that 

one of the.prlmary objects In enaotlng House Bill 856 was 

to require that Superintendents of State Hwapltala to 

have the sanity of a patient judlalally~ restored before 

the patient can be discharged from the hwapltal. An exolusltre'method la provided by the Act fwrthe judicial 

restoration of sanity to an inmate of a State Hospital 

w&w la *found by the Superlntendeut tkereof to have reooverad'to an extent that he la no longer of unsound 

mind.” Section 3 of the Act requires the Superintendent 

to certify auoh feat to the Jndge of the County Court of 

the county in vhloh the hospital la located, and further 

provides that 'such Judgeshall doaket and try auoh reatoratlon proceedings at the earliest possible time. Insofar as the judialal restoration of sanity to a patient 

throughthe lnltlatlve of the _Superlntendent is cwneerned, 
Hon. Yoyne L. Kelly, page 5 (V-998) 

- . 

Section 3 provides the exolusive aourt and method, and 

you are so advised. 

On the other hsud, Section 4 of Howe Bill 856 

oleerly owntemplates a sitnation where a mental patient 

has been granted a tempwrsry leave or~furlough from the 

State Hospital under the prwvlsiona of Artlale 

v.ck.3. It la proqided la Section 4 as follows: 

31931, 

menever an inmate of a State Hospital 

ahall.have been thus aertlfied by the Superlntendent thereof as recovered, it shall alag 

be the duty of said Superlntendelit td lmmed-, 

lately release said inmate, if not already gu 

furlough, from said hospital, in the same manner and subject to the asme provf.al&u+ aa~la 

provided in Article 31931, Revised Civil Statutes of the State of Texas, 1925;but in no 

event shall auah inmate be discharged from 

said hospital unless and until his ~tiatoratlon has been adjudged by a owurt of awmpetent jurladiotlwn. The right of rearrest 

an&reconfinement tw.auch hwapltsl'8h~ll pontinue to exist as to auah inmates while oh 

furlough pending restoration proceedings in 

the Same mannhr and to the same full-extent 

as is now provided for in Article 31931." 

in part: 

Section 4 of Article 5561a, V.C.3.) provides, 

“Whenever one or more ad& cltlzkna 

of this State shall file an affldavlt with 

the County Judge of the uwun+vhere any 

one of the affiati resides alleglrrg.under 

oath that there la located within said county, ~wr confined within said uwunty, A person 

i&o has theretofore been declared tb be of 

unsound mind, or an habitual drunkard, and 

that in the opinion of afflants such person 

has been restored to his right mihd; or to 

sober hablts, and that there is no oriminsl 

charge pending against auoh person, the Cwunty Judge shall forthwith, either in termtlme 

or ln.vacatlon, set a day for a hearing to 

determine the sanity, or sobriety, of such 

person . . ." 

Thus it.18 to be observed that if a patient la 
Hon. Mwyne L. Kelly, page 6 (V-998) 

on furlough under the prwvlslons of Article 31931, it is 

possible to hsve a judicial restoration of sanity under 

the. provisions of Artlole 5561a. In such a case the 

judicial restoration is Instituted by "one or more adult 

citizens of this State" by the filing of an *affidavit 

with the County Judge of the oounty where any one of the 

afflants resides alleslng under oath that there la lwaated vlthln said oouuty a person previously declared tw be 

of unsound mind and asking for a judicial restoration of 

sanity. In such a case the aanlty restoration proceedlug has not been instituted by the Superintendent of the 

hospital, and therefore, Section 3 of House Bill 856 is 

not applloable. Hwever,‘ln all cases, whether the.sanlty restoration prwoeediug is instituted by the.3~ 

r 

rlntendent or some private citizen, the Superintenden of 

the hospital is not authorized to discharge the patgent 

until the court where auoh proceeding is Instituted has 

judicially detellnlned that such perswon's sanity has been 

restored. 

!Che above answer to your first question makes 

It uunecessary to answer your second question. 

We believe it was the further purpose of House 

Blli 856.to obviate the necessity oft another sanity hearing before a furloughed patient, whose sanity has not 

been legally restored, msy be returned to the 3t.ate Hoapltal. 

Article 31931, V.C.S., provides: 

We superintendent of any lnstltutlon, 

after.the examination as hereinafter prwvlded, may permit any inmate thereof.tempwrarlly 

td leave such lustltutlwn in oharge-‘of his 

guardian, relatives, friends, orby himself, 

for a period not exceeding twelve mwutha, and 

may reoelve him when returned by any auch.guardiau, relative, friend, or upon hla ovn applleatlwn, vlthln such period, vlthout any further 

order of owmmltmeut; but no patient, who has 

been charged with or cwnvloted of some offense. 

and been adjudged Insane in acoordanae with 

the provisions of the code of ~orlmlnal prwoedure, shell be permitted to temporarily leave 

such lustltutlwn under any clreumstances. The 

superintendent may require as 8 oondltlon of 

such leave of absenoe, that the person in 

whose charge the patient is permitted to leave 

the institution shall make reports to him of 
Hon. Mwyne L. Kelly, page 7 (V-998) 

the patient's cwudltlwu. Any such auperlntendent, guardian, relative or friend may 

terminate auoh leave of absence at any time 

and authorize the arrest and return of the 

patient. Any peace wfflaer of this state 

shall aauae such patient to bs arrested and 

returned upon the request of any such aupsrfntendent, guardian, relative or friend. Any 

patient, except such as are oharged with or 

owntioted of some offeuse, who has been adjudged insane In aoowrdanoe with the provisions of the code of orlminal ProoeduPe, who 

has returned to the I~tltUtlWn~at the expiration of twelve months may be granted an 

addtlonal leave of not to exoeed two years, 

zt;;; tuperlntendent, or upwn his ~reaomen- 

. . 

Sluoe House Bill 856, which was passed aubaequent'tw'Alit.iole, 31931, provides that no ~patleut may be 

dlaohatiged from s.wh hospital "until hlkrestoratlwn has 

been adjudged by B oourt of competent jtiisdlotlwn" it 

la our 'opinion that a patient who 1s notmentally oapable of being restored, but who Is in such awndltlwn Bs 

to no lbnger need hoapltsllzatlwn, may be furloughed, but 

he may~tiot be dlaahapged at the end of three years wlthout resti6ratlwn of sanity. 

Your fourth question presents s practical prwblem. If a patient is not returned at the end of the 

first year furlough for an examlnatlwn; then the Superintendent granting such furlough should cwntaat the perawn having custody of the patient aud'determlne whethei. 

he should bs returned to the hospital or granted an addltlwnal furlough. If such patient oannwt be located, 

and he la considered as an escapee by the Superintendent, 

he ahotild be carried on the Census Rwll.aa such. If, on 

the ~wgher hand, his furlough is extended'; then he should 

be listed as being furloughed. 

In answer to yoti fifth question you are adviaed that if a patient la granted a furlough or eaoapes and 

is later committed to another State or Federal Hospital, 

such patient should be carried on the Hospital Census as 

furloughed or as an escapee as the case may l+ with the 

notation made of the patient's commitment to another 

State or Federsl Hospital. 
Hon. Mwyne L. Kelly, page a (V-998) 

SUMMARY 

A sanity restoration prooeedlng with 

reference to an Inmate of a State Hospital 

who is on furlough may be lqstlfuted~ln the 

county where the patient la lwoated rather 

than the county in which the hospital la 

located. Arts.31931 and 5561a, V.C.3. 

A patient in such mental condition as 

to prevent a judlalal restoration of sanity, 

yet $" 

vered to the extent that hwapltalleatlwn la no longer neoesaary, may be furloughed by -the Superintendent, but in no event may 

he be discharged at the end of three years 

without a restoration of sanity by a court 

of competent jurladlctlwus. Art. 5561b,v.c.3. 

If a patient is not returned.at'the eud 

of the first year furlough for au examination, 

the Superintendent granting suah furlough 

should awntaot the person having custody of 

the patient and determine whether he' should 

be returued to the hospital or Id anted an additional furlough. If suoh patient cannot be 

loaated and 1s considered as an eaoapee by 

the Superintendent, he should be 6aWled on 

the census roll of the hoapltal as a!+ah. On 

the other hand, if his furlough la~bxtended, 

he should be listed on the roll as being furloughed. 

If a patient la granted a furlough or 

eaoapea and la later committed to another 

State or Federal Hospital, such patient 

~ahonld bcaarrled: on the census roll as 

"furloughed" or as an "eaoapee" as the case 

may be, w&th the notation made.of the commltal to another State or Federal Hospital. 

Yours very truly, 

APPROVED: PRIm DAi'UXL 

Attorney General 

J. 0. Davla, Jr. 

County Affairs Dlvlalwn 

Charles D. Wathewa 

Executive Assistant Assistant 

BA:mu 

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