R-494 

THE ATTORNEY GENE&&'. 

OFTEXAS 

PRICE DANIEL’ 

Aun~l~ I;. """"""""""s 

ATTORNEY GENERAL 

June 12, 1947 

I 

Hon. Looneg E. Lindsey Opinion Ho. V-247 

County Attorney 

Upshur County Ret: Authority of County 

Oilmer , Texas Attorney to represent 

& PBI’BOR BEdCiZ@ t0 

ha;laels asnity Fe- 

. 

Dear sir: ‘i “.,i 

Your requert ‘for qn opinion iron thir office 

iS, in mt, 88 fOllOVB1 

"1. By virtue of Article 32 of the 

Code of Crlmlnal Prooedure ie a County 

Attopsy sating ins his u oapaoitg prohibited from representing a person seeking 

to have his Bt3lZity restored. 

"The particular 'case Is ohe in whloh 

a IMU& v&a adjudged lnsaq about three (3) * 

Yeats ago during tUe admlnlatratloo of a ,; 

prevtoue county Attorney. 

"2. By virtue of Article 32 of the 

Code of CHminal Prdcedure is a Coiu'itp 

Attorney acting ,in his officlaq capacity 

prohibited from representing a person Beaking to have his smity restored?" 

Article 32,, V.C.C.P., provides, in iwt8 

Art1010 5550, V.O.S., pzJovldes, ln part, em. 

follover .I. ; / 

:*' * 
Hon. Loonoy IL Lindsey - Paepe 2 ~ 

‘wlwa Oh&ea t0 be Inat&& a8 deientlant. 

'Jhe County Attorue~ OF the Distrlat Attopney in cq+n$lee haying no County Attorney,, 

on the 

be 

entitled t0 COUXXW~; end in paper OBBBB the 

County Judge nay~appoint 

purporo. .‘.” 

ooua~el for that 

lovr: 

~eatlon 4 of A~tilolr 556th. V.C.S., ir as fof- 

"sea. 4. Whenovor oae OP 8ore'mdult 

oitisens ol thie State shall fil4i an atfldmrlt vith thr County Judge of the oountx' 1 

vhere uay one of $he l ffianto roaMe8, alle(gq under oath thet there is located wlthin aaid county, or oonfined within said county, a person vho ha8 theretofore been declared 

to be of unsound rind, or an habitunl dcuukard, and that in tho opinion of 8ffiants ruoh 

poroon has been r48tored to hlr right tind, or 'I 

to sober habita, and that the@ is no orlmlnal 

chargo onding against such per'llon, tho County 

Judge all?+ 11 forthwith, either, in tor8ti.m or, 

in womtlon, rot m bry for e heariag to dotosmla te h a a mity, or l obrioty, of ruoh porron. 

Zhe Cosatf '"g" 8ha;Ll oaueo rrotioe of the :' 

data ret or t e horrlq to be lrrurd by the 

County Plonk, to the guardlm of suoh‘poProa, 

if My, mna to thoro hmring ourtoay of ruoh 

pawea, if may them be, aad in, tlfb evaat. auoh 

P 

l ~r6n ba, a bmofiol~r, of the Vetermaa &&lartrmtlria~, orh$s rat* e e 00n818t8 in xholo oi? 

ia prrt of 8013~ qpothor qsratr derived irorr 

d08p8ation, pabaoa UP ia~pruroe. paa2ky th0 

United St8to8, ltkke notioo 8ball lio,lrorred oa 

,.~ the ohfof.rttoraoy of the Voteran Adrinistrmt&n in this State by dellwwlng a co y o? ~, ~. 

said notloe to his office, of the ii.1 ing of 

.suoh affidavit, and that a hearing la to be 

hod thereon, giving tho time,end plaoe theroef. 

The County Judge ahall direot tho~Shertff of- .’ 

~tho oountf vhere eueb pnrllorr ir loorted 'W$a- ~ 

~?iImd tobring suoh~soa iato qarOa)d f@l' 

rid lao&PiDg, if auoh aot108 be 8eoerury 'to .* ,;. ,',~ .I 

~~oaymhirpvr8eaoemttk *la. n 
-- - 

HOIl. Loonay E. Lindsey - Page 3 

“(a) A jury may be demanded by any 

person interested in the ward or his estate 

to pass on the question of whether or not 

such person has been restored tb his right 

aind, or to sober habits, but if a jury 1s 

not demanded, the County Judge may paas upon such question, or he may cause a jury to 

be empanelled to hear su& cause. 

“(b) If, the trial of the cause, o&them 

before a jury or the County Juago, result8 

in a finding that such paraon h4e bson restored to his right mind, or,to sobor habits 

a Jumnt sh813 be entered won the minutes 

of the cot& P4Clting SW& itots, and adjudging su6h person to be of sound mind, OF sober 

habits, rad raid person, if then under portralat, shall be discharged immediately. 

“(0) If 8uOh perron be under guerdiaaahip st Ohs inotitutlciP of laugh ~rooeodl~s 

mnd ah&l1 be &djudged to h4v4 boon reetorod 

to his right aim%, or to rObep.habitU,, under 

tho ~FOV~BIO~O Of this ALot, and If 8uOk.i restoration takes plaae in a court other than 

t&t ia which tho guapdian8hip iB pOndi 

then said fop&nor ward shall file a copti T’ iod 

uop~ of the judgment of #@estoratioa to sanity, 

or .sobriety, in ?2ae court where the guardiand&ii8 POndiD& and, lmnediatoly after the 

of suoh celrtified oopy of OUOb U 

*ent n the court vhere ,the gWWdian8 h i p Y- l 

P 

ending, the fomer guardian shall file hi8 

inal (Lccc$mt, ati deliver to his forrer vuld 

the ertato rooslnlng in his handa. If the 

orrtoratlon be had in tho ~oou*t whop4 the 

gukrdiknshlp is pondlng, then immodlately 

after such jidgmeat of restoration la enterod, the foFI8or guardian shall file his final 

aooount and dsllver over to k&e former ward 

the estate remaining in his bands, in the 

Wue and ammner provided for in probate prooeodings. 

“(d) From a judgment Pendored by the 

Gouatty Court upon any pestopatlon heaping aa 

provldbd &n appeal may be taken to the Dlstrlot 
Hon. Looneg E. Lindsey - Page 4 

Court of the county wherein said carrsez 

orlglnally was tried. The appeal from 

the ju ent 

T 

of the County Court to the 

Dlstrlc Court to be perfected In the 

manner and In the time prorlded by law 

for the appeal of probate ~ooeedi~r 

from the County Court to the M6trlat 

Court; and provided further, that the 

trial in the Matrlot Court &all be de 

nova as In other probate pro@e 

U&t~ 

4 

w of the Dirttldi 9 &ii? 

. 

"(e) Any person who ha8 heretofore 

been declamd to be of MaoundUBd, O? 

anhabitual @lrunkmd, and ha8 beaa trl(hd 

m the pslo~lrloan of thlr &a& *M f'ourua 

to be of ULUVXI& mind, or an aribitprl 

tlmznkbra, shall nOt again be tried for a 

period of six (6) months." 

Under the pLaln prorlsfona Of APtlele 5550, 

V.O.S., It is the duty of a Q@aU#tJ AttaMcnj CO Cuparat the State in the original lunacy h@aWIg. Although there is no duty lmporral upon a OorultJ Attobn87 

to repxwrent the State ln the hearlag on PertaratiQo 

of salty, it ie our opinion that een8WuUg Wo 8bora 

Quoted provlslona tqether, the Statr~dwr b@Ta WL 

Interest In the came. This being trqo, it nese88uilj 

follows that a County kttorneg Is prohlblted frol being 

*. ~"bf'counnel adveraely'to the State in any case, Ln Snf 

cowte " 

r.. 

., 

A County Attorney la prohibited by 

Article 32, V.C.C.P., from reprolrmtlllg a 

pors.~, roepg to have hi6 IAmity roitQwoa* ,, 

YQ!lm ** ti?& 

APPFtOVED: A~oaom~snasuaPEIuB 

ii?&32 8v 

A7!T~m! fJBm!AL 

JR:djm