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

BxeoutiveDlreotor Board for Texas State Re: Several questionsreHospitals& Special Schools latlve to the prooeAustin, Texas dure to be followed to dischargepatient8 Dear Sir: from State hospitals.

Reference.1~

made to your reoent requestwhich reada in part aa follbwa:

"ThisBoard is unable.to interpretoertaln 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 affidavitaaklii:BRfor

the restorationof said inmate. such restoration

proceedlnRsto be heard and detelimined in the same ma-r as now Providedbs law. It shall be the duty of said Judge to mt and try such prooeedlngaat Ohs earlleat possible time.' (Rmphsals~supplled.)

"It would appear.fromthe above quoted section that the restorationprooeedlngs 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 certifiedby 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 inmatewhile dn furloughpending 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~thatthe ianrape

may be dischargedfrom the hospital vg?n his restoration has been adjhd$edby a +ur$ of oompetent jurisdiction.

have the proceedingsin &e countZ&S in uhlch ' the hpapltal is looated;%gardl6as 6f where the ~patlenta

might W residing? (Furloughed pet.ients

may be severalhundred. 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 requiringreatoratlwnproceedingsin only seven (7) owunties in the State of Texas, therebg~,deprlving the inmate from having s restorationprwceedimg in his oounty of legal residence?

~-"~*'*3lace

H.B. Ho.856 allows dlachargewnIy by.restoratlwn, it la neceaaarJr.f6r the hospitals to carry patients as being furloughed, escaped or transferredto anotherState or Federal hospital; and alnae Article'31931allows furloughsfor 0~ year, ~-examlaatlon at the end of one year, and oontlnuaPaeof furlough for two additional yea-, the Ewllowlngquestions iirlae: ~~

What should be dose at the e with patientswho 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

"QuestionIiw.

4: How be oarrled on the hospital p&lent is not returnedat first year of furlough for amWatlon?
"QuestionBo. 5: Hw

e carried on the hospital

-_. ahouId a patient

_-_ - cenaua zr rurloughed or esoaped and later oommlttedto a State
or Federal hospital In anotherState?" should a patient
oenaua when such the end of the the requiredexIt 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 dischargea patient from the hospitalwhen he~had determined that such patienthad recovered to the extent that it was nw longer aeoeaaarythat he be held ln restraint; aud that a patlentwho had been aw dlaoharged from the hospital while on furloughowuld not be reaommltted to the hospitalvlthout a jury trial even though his sanityhad not been legally restored.

At the time of the above deolalwn there was no mandatoryprovision in the law direotlngS@mrintendenta to have a person'8 sanity judicially restoredbefore being dischargedfrom the hospital. Suah wsa one of the obviouspurposes of House Bill 856, Acts 51st Leg., R.3. 1949, ch.435, p.810, and codified aa.Artlcle5561b,V.C. 3. Such Aot provides in part as follwa: -.

"3ectiwn 1. l%e prwvlalwnaM$hla Act ahall.applyto all personswho have'beenboth adjudged of unsoundmind and as needing restraintby a jury under the provisionsof Title 92, Revised Clvil3tatutea of the State of Texas, 1925, entitled lLuuauy-Judlcial Proceedingsin Cases of,' and committed to
a State Hospital in acoordaucetherewith, and not charged with a orlmlnal offense,and tb none other.

"Sec. 2. The provisionsof 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 recoveredto
an extent that he la no longer of unsoundHWU. 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 affidavitasking for the matoration of said Inmate, such restoration prooeedingsto be heard and determinedIn 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 earliestpossible time.

. . . That it waa the intent of the Legislaturein enaotlngHouse Bill 856 to provide a mandatoryand exaluslvemethod for Superintendents of State Hospitals to bring about a judicialrestorationof a person's aenlty before discharge from the hospital is aubatanUzgi'by the emergencyolause of the Act. It is there
:

~."The present anomalousand unsatisfactory owndltlwn of the law In thls:regard, vhereln a reowvered lunaticaan be dlaoharged by the,Superlntendent of a State hospital without the necessityfor a restoration prw- 'oeedlng,

but caunwt be returnedto said hoapita1 without another adjudioatfwn‘wf lusanlty,,~ yet remains under the legal dlaabllltieaof the.,orlginal

adjudlcatlwn

untll~~restwred

in spite of hla discharge,has resulted in great ~.lwasznd aonfuslonto many lnnooentpeople,

. . .

In view of the foregoing it la-our wplnlwn that
one of the.prlmaryobjects In enaotlngHouse Bill 856 was to require that Superintendents of State Hwapltala to have the sanity of a patient judlalally~ restoredbefore the patient can be dischargedfrom the hwapltal. An exolusltre'method

la providedby the Act fwrthe judicial restorationof sanity to an inmate of a State Hospital w&w la *found by the Superlntendeut tkereof to have reooverad'toan extent that he la no longer of unsound mind.” Section 3 of the Act requiresthe 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 reatoratlonproceedingsat the earliestpossible time. Insofar as the judialalrestorationof sanity to a patient throughthe lnltlatlveof the _Superlntendent is cwneerned,Hon. Yoyne L. Kelly, page 5 (V-998)

- .

Section 3 provides the exolusiveaourt and method, and you are so advised.

On the other hsud, Section 4 of Howe Bill 856 oleerly owntemplatesa sitnationwhere a mental patient has been granted a 

### tempwrsry leave or~furloughfrom the State Hospital under the prwvlsionaof Artlale v.ck.3. It la proqided la Section 4 as follows: 31931,

menever an inmate of a State Hospital ahall.havebeen thus aertlfiedby 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 dischargedfrom said hospital unless and until his ~tiatoratlon has been adjudgedby a owurt of awmpetent jurladiotlwn. The right of rearrest an&reconfinement tw.auchhwapltsl'8h~llpontinue to exist as to auah inmateswhile oh furloughpending restorationproceedingsin 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 affldavltwith the County Judge of the uwun+vhere any one of the affiati resides alleglrrg.under oath that there la locatedwithin said county, ~wrconfinedwithin said uwunty, A person i&o has theretoforebeen declared tb be of unsoundmind, or an habitualdrunkard, 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 laHon. Mwyne L. Kelly, page 6 (V-998)

on furlough under the prwvlslonsof Article 31931, it is possible to hsve a judicialrestorationof sanity under the. provisionsof Artlole 5561a. In such a case the judicialrestorationis Instituted by "one or more adult citizens of this State" by the filing of an *affidavit with the County Judge of the oountywhere any one of the afflantsresides alleslng under oath that there la lwaated vlthln said oouuty a person previouslydeclared tw be of unsoundmind and asking for a judicialrestorationof sanity. In such a case the aanlty restorationproceedlug 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

prwoeediugis instituted by the.3~

r rlntendent or some private citizen,the Superintenden of the hospital is not authorizedto dischargethe patgent until the court where auoh proceedingis Instituted has judiciallydetellnlned that such perswon's sanity has been restored.

!Che

above answer to your first question makes It uunecessaryto answer your second question.

We believe it was the furtherpurpose of House Blli 856.to obviate the necessityoft another sanity hearing before a furloughed patient,whose sanity has not been legally restored,msy be returned to the 3t.ateHoapltal.
Article 31931,V.C.S., provides:

We superintendent of any lnstltutlon, after.theexaminationas hereinafterprwvlded, may permit any inmate thereof.tempwrarlly
td leave such lustltutlwnin oharge-‘of his guardian,relatives, friends,orby himself, for a 

### periodnot exceedingtwelve mwutha, and may reoelvehim when returnedby 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 chargedwith 

### or cwnvlotedof some offense. and been adjudged Insane in acoordanae with the provisionsof the code of ~orlmlnalprwoedure, shell be permitted to temporarilyleave such lustltutlwnunder 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 institutionshall make reports to him ofHon. Mwyne L. Kelly, page 7 (V-998)

the patient'scwudltlwu. Any such auperlntendent, guardian,relative or friend may terminate auoh leave of absence at any time and authorizethe arrest and return of the patient. Any peace wfflaer of this state shall aauae such patient to bs arrestedand returned upon the request of any such aupsrfntendent,guardian,relative or friend. Any patient, except such as are ohargedwith 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 "untilhlkrestoratlwn has been adjudgedby B oourt of competent jtiisdlotlwn" it la our 'opinion

that a patientwho 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 questionpresents s practicalprwblem. If a patient is not returned at the end of the first year furlough for an examlnatlwn;then the Superintendentgranting 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 consideredas 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 questionyou are adviaed that if a patient la granted a furlough or eaoapes and is later committed to anotherState or Federal Hospital, such patient should be carried on the Hospital Census as furloughedor as an escapee as the case may l+ with the notationmade of the patient'scommitmentto another State or Federsl Hospital.Hon. Mwyne L. Kelly, page a (V-998)

SUMMARY

A sanity restoration prooeedlngwith referenceto an Inmate of a State Hospital who is on furloughmay be lqstlfuted~ln the county where the patient la lwoated rather than the county in which the hospital la located. Arts.31931and 5561a,V.C.3.

A patient in such mental conditionas to prevent a judlalalrestorationof 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 dischargedat the end of three years without a restorationof 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 determinewhetherhe' should be returued to the hospital or Id anted an additional furlough. If suoh patient cannot be loaated and 1s consideredas an eaoapeeby 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 committedto another State or FederalHospital, such patient ~ahonld bcaarrled:on the census roll as "furloughed"



### or as an "eaoapee"as the case may be, w&th the notationmade.of the commltal to anotherState or FederalHospital.

Yours very truly,

APPROVED: PRIm DAi'UXL Attorney General

J. 0. Davla, Jr. County Affairs Dlvlalwn

Charles D. Wathewa Executive Assistant Assistant
BA:mu #