AUSTINXU.TEXAS PWB~:EDANXEL.
February 25, 

### 1952

Hon. Austin F. Anderson Criminal DistrictAttorney Bexar County Courthouse SanAntonio 5, Texas OpinionNo. V-1414

Re: Proper procedure for
a sanity hearing for
a person who has been placed on adult probation following convlction of a felony and who has subsequently been arrested for another crime. Dear Sir:

Your request for our opinionreads in part
as follows:

"On September 15, 1951, Subjectwas convicted of burglary, on a plea of guilty, by the Criminal District Court of Bexar County, Texas. No issuewas raised as to his sanity. Subjectwas sentenced to serve four years on probation. Subsequently on October 19, 1951, Subject committedforgery and was arrested. While lodged in the county jail,and on the 7th day of November 1951,he was examinedb the County Health Officer, and on the 6th day of November 1951,by a psychiatristin private practice; both ofwhom found Subject to be psychotic, I.e. insane. Both the CountyJudge of Bexar County and the Judge of the CriminalDistrict Court of Bexar County were cognizant of the facts and were amenable to a trial in either court.

"On December 12, 1951, after expiration of t,hetermat which Subjectwas convicted, the questionsarose:

n1. Should Subjectbe committedto the State Hospital by following the procedure outlinedin Art. 5561a,V.C.S., or by followingArt. 921 et seq.V.C.C.P.? andHon.Austin F. Anderson, page 2 (V-1414)

"2. Could Subject be committed to the State Hospital for a periodnot to exceedninety days for observationand/or treatmentby virtue ofArt. 31930-lV.C.S.? and

"3. Is either the civil or the criminal procedure set out above exclusive of the other?

"4, Would the County Court have jurisdiction to try the defendant for insanity if he had not committeda crime while on probation?"
Subsequent to your request you advised us that the complaint in the foregoing case is still pending and no indictmenthas been returned.

Article 5561a,V.C.S., provides in part:

"If information in writing under oath be given to any county judge that any person in his county,not chargedwith a criminal offense, is a person of unsoundmind, and that the welfare of either suchperson or any other person orpersons requires that he be placed under restraint, and such county judge shall believe such information to be true, he shall forthwith issue a warrant for the apprehension of such person, or, if such like informationbe given to any justice of thepeace in such county, said justicemay issue a warrant for the apprehension of said person,making said complaintand warrant returnable to the county court of said county, and said county judge in either event shall fix a time and place for the hearing and determination of thematter, either in term time or in vacation,which place shall be eitherat the courthouse of the county,
or at the residence of the personnamed, or at any otherplace in the county, as the county judgemay deem best for suchhearing.

. . . Article 31930-1,V.C.S., authorizes the county judge to commitmentally ill patients to -,-

_- Hon. Austin F. Anderson, page 3 (V-1414)

State Hospitals for ninety days for observationand treatment.

Article 921,V.C.C.P., provides:

"If at any time after conviction and by themanner and method as hereinafter provided, it be made known to the Judge of the Court in which the indictment has been returned, that the defendant has become insane, since his conviction, a jury shall be empaneledas in ordinaryCriminal cases to try the question of insanity.'

Article 932a,V.C.C.P., provides in part:

"Section 1. In any casewhere inaanity is interposedas a defense and the defendant is tried on that issue alone, before themain charge,and the jury shall find the defendant insane, or to have beenfnsane at the time the act is alleged to have been committed,and shall so state in their verdict, and further find the defendant:

"a. To have been insane at the time the act is alleged to have been committed, but sane at the time of the trial,he shall be immediatelydischarged;

"b. To have been insane at the time the act is alleged to have been committed and insane at the time of trial, or sane at the time the act is alleged tohave been committedand insane at the time of trial, the Court shall thereuponmake and have entered on theminutes of the Court an order committing the defendant to the custody of the sheriff, to be kept subject to the further order of the County Judge of the county,and the proceedings shall forthwith be certified to the County Judge who shall at once take the necessary steps to have the defendant committed to and confined in
a State hospital for the insane until he becomes sane.Hon. Austin F. Anderson, page 4 (V-1414)

'Sec. 2. When the defense on the trial of themain charge is the Insanity of the defendant the jury shall be instructed, if they acquit him on that ground, to state that fact with their verdict,and if they further find the defendant:

'a. To have been insaneat the time the act is alleged to have been committed, but sane at the time of the trial,he shall be immeddatelydischarged;

'b. To have been insane at the time the act is alleged to have been committed and insane at the time of trial, or sane at the time the act is alleged to have been committed and insane at the time of the trial, the Court shall thereuponmake and have entered on theminutes of the Court an order committing the defendant to the custody of the sheriff, to be kept subject to the further order of the County Judge of the county and theproceedings shall forthwithbe certified to the County Judge who shall at once take the necessary steps to have the defendant committed to and confined in a State hospital for the insane untilhe becomes sane.

In Rx arte Knox S.W.2d 661 (1.9

44y, it is ,ta;~;z'Jhxe Grim. 110, 

### 178

"Relatorwas under the accusation of felony theft,as evidencedby certain complaints filed in a justice court of Hidalgo County, and was held thereunderby virtue of a warrant issued out of such court on December 20, 1943; thatwhile held in jail
on suchwarrantby the sheriff of such county, on February 9, 1944, relator'swife filed an affidavit in lunacy in the county court, alleging that relator was a person of unsoundmind, etc., and requesting that he be !;r:;ed

thereunder in the county court of'such county. On February 23, 1944, the grand jury of Hidalgo County indictedrelator for felony theft in three cases, andHon.Austin F. Anderson, page 5 (v-1414)

returned same into the district court of that county, they being the aame cases under which he was held by virtue of the justice courtwarrants.

“Relator now makes application to this court requesting thatwe issue ourwrit of habeas corpusherein, and thatwe also issue writ ofmandamus to the county judge of Hidalgo County, directinghim to forthwith try relator in such county court under the affidapit in lunacy in order to determine his sanity thereunder.

"It appears from the record that prosecutionhad begun in thematter of the felony thefts by a filing of complaints in the proper courtprior to the attempt to have the question of relator's sanity inquired into by the county court, and that at the time of such filing of the insanity affidavitprosecutionwas pending in the felony cases. See 5 Words and Phrases, Perm. Ed., p. 281. Therefore relator was at such time charged with a criminal offense,and the statuterelative to the determination of his sanity is found in Art. 932a;Vernon'sAnn. C.C.P., and not inArt. 5561a,Vernon's Texas Statutes 1939, CumulativeSupplement.

. . ."

In view of the foregoing, it is our opinion that the county courthas no jurisdictionto commit the defendant to the State hospital under the provisions of eitherArticle 5561a, V.C.S., or 31930-1, V.C.S.

InMcKibben v. State, 140 Tex. Crim. 1, 148 S.W.2d 423 (1940), it is stated:

"Appellantwas convicted in Comanche County of robbery and his punishmentassessed at five years in the penitentiary.
"Appellantgave notice of appeal to this court and the record was filed here on the 26th day of February, 1940. It is now shownby proper certified copies of orders and judgments that onMay 3, 1940, there
was pending in Eastland County, Texas, aHon.Austin F. Anderson, page 6 (V-1414)

prosecutionagainst appellant in which he
was chargedwith a felony, to-wit, forgery.

"On the date lastmentioned an affidavit was filed in the District Court of Rastland County where the forgery charge
was pending averring that appellantwas then insane, and requesting thathe be first tried on that issue before puttinghim to trial upon the forgery charge. A jurywas impaneledand it returned a verdict finding that appellantwas then insane. Said judgmentwas certified to the CountyJudge of Eastland County,who by proper orders committedappellant to the asylum at Wichita Falls, where he is now confined.

"Art. 925, C.C.P., provides: 'Upon the trial of an issue of insanity, If the defendant is found to be insane,all further proceedings in the case againsthim shall be suspendeduntil he becomes sane.'

*Counselfor appellant has filed a motion asking that under the provision of the article quoted furtherproceedings in the present causebe suspendeduntil this court is properlyadvised that appellanthas become sane. The article in questionapplies to proceedings in the Court of Criminal Appeals as well as to the trial court. SeeWilliams v. State, 135 Tex. Cr. R. 585, 124 S.W.2d 990; Jones v. State, 137 Tex. Cr. R. 150, 128 S.W.2d 815.

"Under theprovision ofArticle 921, C.C.P., as amended in 1931,Acts 42nd Legislature,page 82, Chapter 54, Vernon's Ann. Tex. C.C.P. art. 921, it is contemplated that the issue of insanity after conviction shouldbe tried and determinedby the District Court in which the convictionoccurred. Rx parteMilliken, 108 Tex. Cr. R. 121, 299 S.W. 433; Rx parte Davenport, 110 Tex. Cr. R. 326, 7 S.W.2d 589, 60 A.L.R. 1403; Escue v. State, 88 Tex. Cr. R. 447, 227 S.W. 483; Bland v. State, 137Tex. Cr. R. 486, 132 S.W.28 274, 130 S.W.2d 292. Mone of the casesmentioned presents a.- BOII. Austin F. Anderson, page 7 (V-1414)

situation similar to that here present and in enacting the statutereferred to the Legislatureapparently did not foreseenor contemplatea situationas bas arisen here. The judgment of present insanity of appellant was not in the District Courtwhere the instant conviction occurred,but was in a District Court where another felony chargewas pending against appellant. There
can be no question, therefore, of the jurisdiction of the Mstrict Court of Eastland County to determine the issue of present lnsanity of appellant as it related to the charge of forgerypending against him in that county.

. . . "The question is not free from dlfficultg. However, without going into a further discussion of thematter at this time we have concluded thatno harm can ultimately result to either the State or appellant to direct the retirement of this case from the docket, and the stay of further proceedings therein until this Court is advisedby proper ordersand judgments that appellant has been restored to sanity, and it Is so ordered.'

that In view of the foregoing lt Is our opinion the Issue of insanity couldbe tried in the Mstrict Court to which the Indictment is returned under the provisions of Artich 932a, V.C.C.P., or in the District Court wNch placed the defendant on probation under the provisions ofArticle 921 et seq.,V.C.C.P.

Passingnow to your fourth~question it T?.s&held

in Attorney General's OpinionV-712 

### f1948)
:

"A convict,who becomes insanewhile out of the penitentiary on parole, condltional pardon, or reprieve, is within the purview ofArticle 921, and the issue of his insanity can be tried and determined only in the District Court in which he was convicted,and then onlywhen his application for a trial as to his Insanity, accompaniedby one or more of the affidavitsHon. Austin F. Anderson, page 8 (V-1414)

required by Article 922, is presented to the Judge of the Court- Dotson v. State, 195 S.W.2d 372.

"The fact that a convictbecomes insane wNle out of the penitentiary on parole, conditionalpardon, or reprieve does not deprive the District Court in which he was convicted of its exclusive jurisdictionto try and determine the Issue of Ns insanity."

If a defendant is still servingNs sentence under probation (Art. 781b,V.C,C.P.), and has not subsequently committedanother crime, the rule announced in the above Attorney General's Opinion is applicable and the MstrLct Court which placed the defendant on probationhas exclusive jurisdictionto try the issue of defendant's insanity.

SUMMARY

Where a personwho Is convicted of burglary and is placed on probation, subsequently commits forgery the County Court has no authority to commit suchperson to
a State Hospital for insanityunder theprovisions of eitherArticle 5561a OF 31930-1, V.C.S.

The issue of insanity shouldbe tried in the Mstrict Court wNch placed Nm on probation underArticle 921, V.C.C.P., or in the District Court in which the indictment is returned for forgery under theprovisions ofArticle g32a,V.C.C.P. Knox 147 Tex. Grim. 110, 178 S.W.2d fi~;$;K;1;""';,v~l;tate, 140 Tex. Crim.

, a 0

.

-. The County Court would not have jurisdiction to try suchperson for insanityHon. Austin F. Anderson,page 9 (V-1414)

during the period of probation, even If he had not committeda crime during suchperiod, since the District Court which placed him on probationhas exclusive jurisdictionto try the issue of Insanity underArticle 921, V.C.C.P. Att'y Gen. Op. V-712 (1948).

Yours very truly,

APPROVED:

J. C. Davis,Jr. CountyAffairs Division PRICE DARIEL Attorney Genera.1

E: Jacobson ReviewingAssistant

Charles D. Mathews First Assistant

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