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 

person who has been 

----- 

adjudged feeble minded 

80,that no warrant to convey such person to the 

Auetin Stat8 School vi11 

be f88Ut?d? 

YOUI r8qU8llt for OUP OpiniOn On the her8lnabixe 

captlongd qU8StiOll haa been r8C8iV8d by this de~rtment. X8 

quote from your letter as followst 

"1 vould like for you t0 please give m8 

an OptniOn 00. the f01loVing qUeStiOn, to-Vitr 

'Can bond be made for a person who has been 

adjudged-feeble minded so that no 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 in all respects 

as is provided for the Sending Of insane Pa-. 

tients to an asylum.' 

"Art. 5557 provide8 for the manner of 

aendIng a person adjudged to be of unsound 

mind to an asylum, etc., and Art. 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 of his 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 of ArtiCl8 5552, end under the provisions 

.of Artiole 5553. 

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

"Art. 5552. 155 Special i88UeS 8Ubmitted 

*lifter the evidence 18 heard the county 

judge Shall submit the matter to the jury upon 

the followFng special issuesr 

"1. Is A B, the defendant, of unaouad 

laind'l 

“2‘ If' the defendant is of unsound mind, 

is it necessarp~that he ehould be placed under 

l'88tl%tit? 

“3. If you answer both the foregoing 

qU8t3tiOll8 in the affiX%L?XtiVe, then what 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 

8StiHUIted Value? 

“7. ff'th8 defendant is pO888t38ed Of n0 

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. 156 Verdzot 

“The jury ehall return plain ansvers in 

writing to th8 issues named In the preceding 

article, but, if they find either the first 

or second ieauea in the negative, they need 

not determine further, and the defendant shall 

be dlscharged.R 

Under th8'prOVl8fOnS of Article 5553, therefore, a 

person, although found to be 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 of Article 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 

in hl8 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 a warrant 

for the apprehension of such person, 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 the deslznntod. tine and 

place she.11 have 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 frC0V such information believes -- 

not only that it is true that such person ie.of unsound mind, 
tlonorable A. 3. Luck&t, ?ege tl 

but, in addition, that the selfme of cltber such person 01 

any other person or lemons rewires that h .Q ->a plscad liiiaer 

restraint. There is no ~rovie.Lsn under l'itle 93 authorizing 

the giving of en appearance bond penda the disposition of 

said cam at the hearing. He io therefore not entitled to be 

roleaaed on ball pending the hearing. see I% parte Roark 

(Tex. Grim. App.) 61 3. 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. If he ia fou@d both Lnsaue and 

necessary to reetrain, Article 5554 requires that jucQm;ment 

shall be outorod "adjudgin& the defendant to be a person of 

unsound nind and ordering him to be conmitted SW rastmiint 

and tseeat;acnt * * *, '? 

Article 5557, Vernon'n Annotated CivPl Statutes, ?rovlded t&t im5mUately after euch j-ant the county June, 

it he ascertaina that there is a vacancy in my of the ppescribed aeylums, or that the patient may be axcomaod~ted there- 

,ti, shall issue 6 warrant 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. 

"No varrant 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 e bead in a sum to be r'ixed by the county 

judge, pcyeble to the State of Textm, with tvo 

OS more good and su?'Sicient mretlea to be 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, to be oroceedod ulth according 

to law, which bond ah311 be filed with and 

OOmititUt8 .a ps.xt of the record 09 the pro- L 

o~&irigs, and may be sued and reoove~~$ upon 

b 

T 

.nny party injured, in his OM nam. 

Underscoring ours) 
ffonol'able A. J. Luck&t, page 5 

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 

to keep the lnean% under restraint, whem they are in such an 

urlfortunate condition as to be likely to harm either l&enaelves 

or some other p%J?6Orl. 

We do'not Wish to be undemtood, however, 4.e holding 

that the State did not aleo, by the enactment of thee% Eu3d other 

statutes, f&end to provide for the proper treatment, and ther%- 

by hope to effect cures, of our unfortunate Z.nznn%, our sole 

purpose in analgzi.ng the heroinabove tmrtiotied provialons of 

Title 92, ie to detemiue vhether the Leglolature, bye the la+ 

guage used in the last clause of &tiele 3871 of Title 59, Vep- 

~CZI’X Annotated Civil Statutes, dealing witii proceediaa 111. 

oeaes of feeble lnLnd%d p%r8ons, intended to make Artftle 5558 

apply to psr8011a found by the court to be feeble minded. 

fitle 59 of th&RovIsed Clvll. Statutes (Article8 3867- 

3871, Y.A.C.S.j preecribes the prooeedings.in c&sea of feeble 

minded persons. TheHe PPaceedings, as the lunacy prow&dings 

under Title $32, are purely statutory and the couHi In truth cae%6 

haa only such authority a8 is eitfiez? expreealy givsn or c&earS 

impll~d by the contMlliag statutes. 

There is no express provision undem Title 59 authorIsing the making of a bond for a person who has been adjudged a 

feeble minded 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 found to be feeble minded, 

the oourt shall enter its order 80 adjudgw him, 

and that he be 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 of vh!.ch he shall 

certify to be oorrect, and transmit the mme to 

the aufierlntondent of such school. If the patient 

is entitled to bo received into the achocl, and 

there Is sufficient POOP therei?& the suPerintendent 

&all notify said judge thereof, wherewon the .iudrze 
Honorable 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’ insane patients 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 to make the provlalona of the bond in Article 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 such matters, 

for example, as the furniiihlng of such clothing as provided 

for in Article 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 

is not in custody as la one vho haa been adjudged insane and 

ordered held under restraint, and therefore there is PO nz 

easltp for such a bond. 

Artiale 3233, Vernozi’s Annotated 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 Is unable under 

ordinary circumstance8 to protect and eupport 

himself-as a lav abiding oitizen because 

lack of mental POVer.’ 

When a peraon. le charged with being 

Apticle 3867, he must be served with citation 

aa provided In Article 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 to place him in jail or keep in custody 

after he has been adjudged feeble minded. l’he only authority to 

commit Is found under the provisions of Article 3871, and”auCh 

commitment 18 ‘to the custody of the Austin State School. 
gonorable A. S. &wke~t, Page 7 

Where a person has been found to be feeble minded by 

the court and there 1s ao vacancy In the Austin State School, 

ve la?ov of no authority under which such a feeble minded person 

can be held in custody by anyone until such time as a vacancy 

olag exist in said school. There can be, therefore, no necessity 

for such a bond as Is provided for in the case of a person adjudged insane and necessary to be 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 (now Au&tin State 

(Acts 34th Legislature, P. 143). 

School) vaa passed in 1915. 

The emergenay olause of said 

Aot~~~~read, in part, aa follovsr 

*The fact that there is nov no 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 /” ATSORREY GENERAL OF TEXAS 

A 

EPlRS