AUSTINXU.TEXAS 

PWB~:EDANXEL. 

February 25, 1952 

Hon. Austin F. Anderson 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio 5, Texas 

Opinion No. 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 anDear Sir: other crime. 

Your request for our opinion reads in part 

as follows: 

"On September 15, 1951, Subject was 

convicted of burglary, on a plea of guilty, 

by the Criminal District Court of Bexar 

County, Texas. No issue was raised as to 

his sanity. Subject was sentenced to serve 

four years on probation. Subsequently on 

October 19, 1951, Subject committed forgery 

and was arrested. While lodged in the 

county jail, and on the 7th day of November 1951, he was examined b the County 

Health Officer, and on the 6 th day of 

November 1951, by a psychiatrist in private practice; both of whom found Subject 

to be psychotic, I.e. insane. Both the 

County Judge of Bexar County and the Judge 

of the Criminal District 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,heterm at which Subject was convicted, the questions arose: 

n1. Should Subject be committedto 

the State Hospital by following the procedure outlined in Art. 5561a, V.C.S., or by 

following Art. 921 et seq. V.C.C.P.? and 
Hon. Austin F. Anderson, page 2 (V-1414) 

"2. Could Subject be committed to 

the State Hospital for a period not to exceed ninety days for observation and/or 

treatment by virtue of Art. 31930-l V.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 committed a crime while on probation?" 

Subsequent to your request you advised us 

that the complaint in the foregoing case is still 

pending and no indictment has 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 charged with a criminal 

offense, is a person of unsound mind, and 

that the welfare of either such person 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 information be given to any justice 

of the peace in such county, said justice may 

issue a warrant for the apprehension of said 

person, making said complaint and 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 the matter, either in 

term time or in vacation, which place shall 

be either at the court house of the county, 

or at the residence of the person named, or 

at any other place in the county, as the 

county judge may deem best for such hearing. 

. . . 

Article 31930-1, V.C.S., authorizes the 

county judge to commit mentally ill patients to - 
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_- 

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

State Hospitals for ninety days for observation and 

treatment. 

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

"If at any time after conviction 

and by the manner 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 empaneled as in 

ordinary Criminal cases to try the question of insanity.' 

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

"Section 1. In any case where inaanity is interposed as a defense and the defendant is tried on that issue alone, before 

the main charge, and the jury shall find 

the defendant insane, or to have been fnsane 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 immediately discharged; 

"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 trial, 

the Court shall thereupon make and have 

entered on the minutes 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 the main 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 insane at the time 

the act is alleged to have been committed, 

but sane at the time of the trial, he shall 

be immeddately discharged; 

'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 thereupon make and have 

entered on the minutes 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. 

In Rx arte Knox 

S.W.2d 661 (1.9 

44y, it is ,ta;~;z'Jhxe Grim. 110, 178 

"Relator was under the accusation of 

felony theft, as evidenced by certain complaints filed in a justice court of Hidalgo 

County, and was held thereunder by virtue 

of a warrant issued out of such court on 

December 20, 1943; that while held in jail 

on such warrant by the sheriff of such 

county, on February 9, 1944, relator's wife 

filed an affidavit in lunacy in the county 

court, alleging that relator was a person 

of unsound mind, 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 indicted relator for felony theft in three cases, and 
Hon. 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 

court warrants. 

“Relator now makes application to this 

court requesting that we issue our writ of 

habeas corpus herein, and that we also issue 

writ of mandamus to the county judge of 

Hidalgo County, directing him 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 prosecution had begun in the matter of the felony 

thefts by a filing of complaints in the proper court prior 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 affidavit prosecution was 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 statute relative to the determination of his sanity 

is found in Art. 932a; Vernon's Ann. C.C.P., 

and not in Art. 5561a, Vernon's Texas Statutes 1939, Cumulative Supplement. . . ." 

In view of the foregoing, it is our opinion that the county court has no jurisdiction to commit the defendant to the State hospital under the 

provisions of either Article 5561a, V.C.S., or 31930-1, 

V.C.S. 

In McKibben v. State, 140 Tex. Crim. 1, 148 

S.W.2d 423 (1940), it is stated: 

"Appellant was convicted in Comanche 

County of robbery and his punishment assessed at five years in the penitentiary. 

"Appellant gave notice of appeal to 

this court and the record was filed here on 

the 26th day of February, 1940. It is now 

shown by proper certified copies of orders 

and judgments that on May 3, 1940, there 

was pending in Eastland County, Texas, a 
Hon. Austin F. Anderson, page 6 (V-1414) 

prosecution against appellant in which he 

was charged with a felony, to-wit, forgery. 

"On the date last mentioned an affidavit was filed in the District Court of 

Rastland County where the forgery charge 

was pending averring that appellant was 

then insane, and requesting that he be first 

tried on that issue before putting him to 

trial upon the forgery charge. A jury was 

impaneled and it returned a verdict finding that appellant was then insane. Said 

judgment was certified to the County Judge 

of Eastland County, who by proper orders 

committed appellant 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 against him 

shall be suspended until he becomes sane.' 

*Counsel for appellant has filed a 

motion asking that under the provision of 

the article quoted further proceedings in 

the present cause be suspended until this 

court is properly advised that appellant has 

become sane. The article in question applies to proceedings in the Court of Criminal Appeals as well as to the trial court. 

See Williams 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 the provision of Article 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 

should be tried and determined by the District Court in which the conviction occurred. Rx parte Milliken, 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, 137 Tex. Cr. 

R. 486, 132 S.W.28 274, 130 S.W.2d 292. 

Mone of the cases mentioned presents a 
.- 

BOII. Austin F. Anderson, page 7 (V-1414) 

situation similar to that here present and 

in enacting the statute referred to the 

Legislature apparently did not foresee nor 

contemplate a situation as bas arisen here. 

The judgment of present insanity of appellant was not in the District Court where 

the instant conviction occurred, but was 

in a District Court where another felony 

charge was 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 forgery pending against him in 

that county. . . . 

"The question is not free from dlfficultg. However, without going into a further discussion of the matter at this time we 

have concluded that no 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 advised by 

proper orders and 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 could be 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 of Article 921 et seq., V.C.C.P. 

Passing now to your fourth~question it 

T?.s&held in Attorney General's Opinion V-712 f1948) 

: 

"A convict, who becomes insane while 

out of the penitentiary on parole, condltional pardon, or reprieve, is within the 

purview of Article 921, and the issue of 

his insanity can be tried and determined 

only in the District Court in which he was 

convicted, and then only when his application for a trial as to his Insanity, accompanied by one or more of the affidavits 
Hon. 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 convict becomes insane wNle out of the penitentiary on parole, 

conditional pardon, or reprieve does not 

deprive the District Court in which he was 

convicted of its exclusive jurisdiction to 

try and determine the Issue of Ns insanity." 

If a defendant is still serving Ns sentence 

under probation (Art. 781b, V.C,C.P.), and has not subsequently committed another crime, the rule announced 

in the above Attorney General's Opinion is applicable 

and the MstrLct Court which placed the defendant on 

probation has exclusive jurisdiction to try the issue 

of defendant's insanity. 

SUMMARY 

Where a person who Is convicted of 

burglary and is placed on probation, subsequently commits forgery the County Court 

has no authority to commit such person to 

a State Hospital for insanity under the provisions of either Article 5561a OF 31930-1, 

V.C.S. 

The issue of insanity should be tried 

in the Mstrict Court wNch placed Nm on 

probation under Article 921, V.C.C.P., or 

in the District Court in which the indictment is returned for forgery under the provisions of Article 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 . 

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The County Court would not have jurisdiction to try such person for insanity 
Hon. Austin F. Anderson, page 9 (V-1414) 

during the period of probation, even If he 

had not committed a crime during such period, 

since the District Court which placed him on 

probation has exclusive jurisdiction to try 

the issue of Insanity under Article 921, 

V.C.C.P. Att'y Gen. Op. V-712 (1948). 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DARIEL 

Attorney Genera.1 

E: Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

BA:mh