OFFICE OFTHEATTORNEY GENERAi..OFTElUW **AUSNN**

**Eonorable** A. J. Luckett county Attorney coma1 county , Rev Braunfels, Texas

Dear Slrr opinion Ho. O-4080 Rer can bond be mede for a 

### personwhohasbeen

----- adjudged feeble minded 80,that no warrant to convey such person to the Auetin Stat8 School vi11 be f88Ut?d?
YOUI r8qU8lltfor OUP OpiniOn On the her8lnabixe captlongd **qU8StiOll** haa been r8C8iV8d by this de~rtment. X8 quote fromyour letter as followst

"1vould like for you t0 please give m8
**an OptniOn**  **00.** the **f01loVing qUeStiOn,**  **to-Vitr** 'Canbond be made for a person who has been adjudged-feeble minded so thatno warrant to oonvey such~person to the Austin State School vill be,isaued"?
'The folloving statutes 

### are S+volvedr

"Art.

## 3871,

R.s., provides that a--- the judge ahall arrange to send such person to said school in like manner inall respects as is provided for the Sending Of insane Pa-. tients to an asylum.' "Art. 5557 provide8 for themanner of aendIng a person adjudged tobe ofunsound mind to an asylum, etc., andArt. 5558 provides that no warrant shall iasue.if some relative or friend of the lunatic will execute a bond to take oar8 of and restrain such lunati0."Ronorable **A.** S. Luckett, Page 2

**%i8 prillkI=**  **pW?pOSe** Of the **inStUlitJ** prOceedinga authorized under Title 92 of the Revised Civil Statutes of Texas (hrtid88 555C-5561a. V.A.C.S.); **is** to determIne whether the alleged lunatic should be confined because ofhis danger to, and the Safety Of, SOCi8tg. **This fact**  **i8** manifest from the issu88 required to be 8Ubmltted to the jury trying the case under the **prOVislOtIs** ofArtiCl8 5552, end under the provisions .ofArtiole 5553.

Article8 5552 and 5553, V8rnonts **Annotated** Civil Statut88, psad a8 fOl~OI?s,

"Art. 5552. 155 Special i88UeS 8Ubmitted
*lifterthe evidence 18heard the county judge Shall submit thematter to the jury upon the followFng special issuesr
"1. IsA B, the defendant, ofunaouad laind'l
“2‘ If'the defendant is ofunsound mind, is itnecessarp~that he ehould be placed under l'88tl%tit?
“3. If you answer both the foregoing **qU8t3tiOll8** in the affiX%L?XtiVe, thenwhat i8 the age and nativity of the defendant?
"4. Rev many attacks of insanity haa he had, and hov long has the pr888nt attack existed?

“5. 18 insanity hereditary in tb8 family OS defendant or not?
“6. Is defendant possessed of any estate, end if 80, of what does it OOnSiSt and ita 8StiHUItedValue?
“7. ff'th8 defendant ispO888t38edOfn0 estate, are there any person8 legally liable for his support? If **yea,** name them. **hot8** 1876, p. 138.Honorable Ai J. ‘Hackett, Page 

### 3

"Art. 

### 5553. 156Verdzot

**“ The**  jury ehall return plain ansvers in writing to th8 issues named In the preceding article, but, if they find either the first 

### orsecond ieauea in thenegative, theyneed not determine further, and the defendant shall be dlscharged.R
Under th8'prOVl8fOnS ofArticle 5553, therefore, a person, although found tobe insane by th8 jury, must be discharRed if the jury find8 that th8r8 ia no necessity of placing him under reetraint.

**Also,** under the'iisanity prOC8ed&gS of ,T'itle 92, Seotion 1 ofArticle 

### 5561a,Vernon’s Annotated Cfvll Statutes, provides, fn part, that;

"If fnforemtion in writin& under oath be given to any county judge that any person inhl8 COUntY. not **OhErR8d** ufth a Oriminsl Offense; 18 isperSOn of-UISOUUd mind, 

### aid that the welfare of either such person7 any other person or persons rkquires that he be placed under restraint, and such county judge shall believe such Lnformation to be true, h8 Shall forthwith 

### issue awarrant for the apprehension of suchperson, l * *.V I(Undereoorin&ours)
Seotfon 2 of said Artiole prOVide8, in part, thatr

**“ The**  warrant provided for herein shall run in the name of 'The State of Texas,' and shall be directed to the sheriff or anv constable of the county, end the offLeer receivl& same shell forthwith take into custody the perscn named therein, and at thedeslznntod.tine and place she.11have him nnd the return of said varrant before the County Jud;ie ror oxnni.nation and trial, + + *.I' (Widerscorfng ours) s
Under the proviatona of the quoted sections, the offioer is directed to take such person into custody, pendLng the hearing, if the county ju&e frC0Vsuch information believes -- not only that it is true that suchperson ie.of unsound mind,tlonorableA. 3. Luck&t, ?ege tl

but, in addition, that the selfme of cltber such person 01 any other person or lemons rewires thath.Q->aplscad liiiaer restraint. There isno ~rovie.Lsnunder l'itle93

### authorizing the giving of en appearance bond penda the disposition of said cam at the

### hearing. He io therefore not entitled to be roleaaed onball pending the hearing. see I% parte Roark (Tex. Grim.

### App.)613.W. (26)633.

If, a+.p&niouoly mentioned, it ie found by the jury that he is insane but not neoaasary to be placed under reatraint, he is discharged. Ifhe ia fou@d both Lnsaue and necessary to reetrain, Article 

### 5554requires that jucQm;ment shall be outorod "adjudgin& the defendant to be a person of unsound nind and ordering him tobe conmitted SW rastmiint and tseeat;acnt

* * *,'?
Article 

### 5557,Vernon'n Annotated CivPl Statutes, ?rovlded t&t im5mUately after euch j-ant the county June, ithe ascertaina that there is a vacancy in my of 

### the ppescribed aeylums, or that the patient may be axcomaod~ted there- ,ti,shall issue 6warrant to convey such lunatic to the asylum.

AFtlcle **5558, VemOdB**  Annotated **Civil Statute&**  however, provides;

*Art. 

### 5558. 1.62

Relative or friend may give bond, etc.

"Novarrant to convey a lunatic to the asylum shall issue if some relative or friend of t,holunatio will underteke, before the county judge, hie mce md restraint and vi11 exeauto ebead in a sum to be r'ixedby the county judge, pcyeble to the State of Textm, with tvo OSmore good and su?'Sicientmretlea tobe hpproved by the county judge, conditioned that t&e pmty ~lv?Jy:such bond will reztr&:n and take proper C&PO 3f tie l~at+o 30 10~ 88 hi8 mental v.naouMuess 

### continues or until he 1s delivered to the sheriff of the county or othar 3(3rtm, tobe oroceedod ulth according to law, which bond ah311 be filed with and OOmititUt8 .aps.xtof the record 09the pro- L 

### o~&irigs, andmaybe sued and reoove~~$ upon b 

### T.nnyparty injured, in

### his OM 

### nam. Underscoring ours)

### ffonol'able A. 

### J.Luck&t, page5 

## 372

We are of the opinion, therefore, from the provisions OS the articles hereinabove referred to, that the primary pmpose oP the 

### eaectment of these statutea, undep pl.tl%92, vas tokeep 

### thelnean% under restraint, whem they are in such an urlfortunatecondition as to be likely to harm either l&enaelves or someother p%J?6Orl.



### We do'notWishtobeundemtood,however,4.e holding that the 

### Statedid not aleo, by the enactment of thee% Eu3dother statutes, f&end toprovide for the proper treatment, and ther%- byhope to effect cures, of our unfortunate Z.nznn%, our sole purpose in analgzi.ngthe heroinabove tmrtiotiedprovialons of Title 92, ie to detemiue vhether the Leglolature, byethe la+ guage used in the last clause of &tiele 3871 of Title 59, Vep- ~CZI’X

### Annotated Civil Statutes, dealing witiiproceediaa 111. oeaes of feeble lnLnd%dp%r8ons, intended tomake Artftle 5558 apply to psr8011a found by the court to be feeble minded.



### fitle59 of th&RovIsed Clvll.Statutes (Article8 3867- 

### 3871,Y.A.C.S.j 

### preecribestheprooeedings.in c&sea of feeble minded persons. TheHe PPaceedings, as the lunacy prow&dings under Title $32,are purely statutory and the couHi In truthcae%6 haa only such

### authoritya8 is eitfiez? expreealy givsn or c&earS impll~d 

### bythe contMlliag statutes.

There is no express provision undem Title 59 

### authorIsing themaking of a bond for a person who has been adjudged a feebleminded person under the proceedings of said Title. Can the authority for such **a** bond be cleerlg implied fsmm the law gugg% used ln the last 6laush of Artlole 38714 Sald Article provides thatc

“Art. 3871. CoRIPitment
“If such p%tson be 

### foundtobefeebleminded, theoourt shall enter its order 80 adjudgw him, and that

### hebe committed to the custody of the Au&In State school. Upon the entry~of such OrdBP, the judge shall cause to be prepared a transcript oi’the~procaedi~a and %vldence, whloh ahall shov the age, aex, race, status and mentul condition of the patfant, all ofvh!.chhe shall certify tobe oorrect, and transmit the mme to the aufierlntondentof such school. If the patient is entitled tobo received into the achocl, 

### and there Is sufficient POOP therei?& the suPerintendent &all notify said judge thereof, wherewon the .iudrzeHonorable 

### A. S. Luokett, Page 

### 6

shall erranm to aend such person to said school In like mmner in all reapocts aa la provided for the sendin::or’

### insanepatients to an asylum.” (Underacorfng ours)

From the language used In the underseared portion of the quoted statute, ve do not think that the Legislature intended tomake the provlalona of the bond inArticle 

### 5558 applicable to persona adjudged feeble minded under Title 59.

In our opinion the Legislature, by said underscored portion of.Artlcle 

### 3871, merely had reference to suchmatters, for example, as the furniiihlngof such clothing as provided for inArticle 

### 5560.

The nmln reason, hovever, upon uhlch ve baae our opinion that the bond vaa not intended to apply in feeble minded cases, Is that a person vho has been adjudged feeble minded isnot in custody as la one vho haa been adjudged insane and ordered held under restraint, and therefore there isPO nz easltp 

### forsuch a bond.

Artiale 

### 3233, Vernozi’sAnnotated Clvii Statutes, deSines feeble minded.persons as follovsl

“Art. 

### 3233. Feeble minded persona defined

“A feeble minded child, a8 defined herein, is one of such feeble mental or moral 

### powers ae to be unable to profit by the ordinary methods of education as employed in the common schoola. A feeble tinded adult le one vho Isunable under ordinary circumstance8 toprotect and eupport himself-as a lav abiding oitizen because lack ofmental **POVer. ’**  When a peraon.le charged with being Apticle 

### 3867, he must be served with citation aa provided InArticle 

### 3869. **Of**

feeble minded under and given notice

We have been unable to **find** any statutory authority, hovever, for the apprehension or the taking into custody of a peraon charged vlth being feeble minded. Neither does there nppear to be any authority toplace him in jail or keep in custody after he has been adjudged feeble minded. l’heonly authority to commit Is found under the provisions of Article 

### 3871, and”auCh commitment 18 ‘to the custody of theAustin State School.gonorable A. S. &wke~t, Page 7

Where a person has been found to be feeble minded by the **court** and there 1sao vacancy In theAustin State School, ve la?ovofno authority under which such a feeble minded person canbe held in custody by anyone until such time as a vacancy olagexist in said school. There can be, therefore, no necessity 

### for such a bond as Isprovided for in the case of a person adjudged insane and necessary tobe kept under x%straint in order that he will not injure himself **or** others.

The purpoee underlying our statutes providing for proceedings in feeble minded 

### cases, appears to be the training of snd caring **for** them, rather than confining them because of danger of Injury to themselves **or** othei?s,as ln ths 0888 of insane persona.
The original Act creating the State Colony for the Feeble Minded (nowAu&tin State (Acts 34th Legislature, P. 143).School) vaa passed in 1915. The emergenay olause of said Aot~~~~read,

inpart, aa follovsr
*The fact that there is novno Uv pro: vfd& for the training or care of’the feeble minded in this State. * * +.*’ (Undersooring 

### ourfl)
it is the opinion of,this that your question should is 80 answered. In view of the foregoing, department, under the facts stated, be anavered In the negntive, and it

Pours very truly
“9A1941 /” 

### ATSORREYGENERALOFTEXAS A

EPlRS