May 3, 1939

Honorable 0. J. S. Ellingson General Manager Texas Prison System Huntsville, Texas Dear.Sir: OpinionWo; O-666 Ret :I8a,o,onviot entitled to have time spent in Austin State Hospital counted on his,sentence?'
We aoknowledge reoeLpt~'of'your $etter dated'Apri1 20, 1939, inwhichyou request an opinion of this-Department on the above question. 'Your letter reads as fol1ows.t. "This inmatehas several oonvictions against her, eaoh for"twoyears-Andy all ran conourrently, the lastof whioh was for forgery and she was sentencedby the Haps Oounty Distriot Court on October 7, 1932. After Mrs., Johnson was convioted in 1932, she was tried for insanity in the Distriot Court of Travis County in CauseNo. 21,394, oonvlotedby a jury on Maroh 2, 1935,,andwas sentenoed to theAustin State Hospital.
ftWehave no record of her conviction for insanity nor of the time she spent in theAustin State Hospital, but we are advisedby an attorney representingher that the reoords at the Austin State Kospital.show ,she was there for a total of 3 months and 19~days when she escaped. She was re-arrestedearly in 1938 and was transferred,to the penitentiary on February 27, 1939. .:, 'WY. Jobnson*sattorney~'advises us that under the holdingsof the,Court of CriminalAppeals, she is entitled to have the time spent in the Austin State Hospital oomputed,onher sentence, and if this be true.she would be released from prisoti. Will you'plesse'advisewhether we haveHonorable O.J. S. Ellingson,May 3, 1939, Page 2, O-666

the right to oount the time she served in the Austin State hospital as time served on her sentence, in oonsideringher eligibilityfor release from prison."
Artiole 34 of the Penal Code of the State of Texas provide8 in part that:

"NOpersonwho becomes insane afterhe is found guilty shall be punished while in such oondition." This statute is plain and unambiguousand of course means exactlywhat it sags.

The procedure to be followed inmaking effeotive theprovisions of the above statute in oasee of insanity after oonviotion is set out in Title 12, Chapter 1) of the Code of CriminalProdeoure of Texas, Artioles 921 to 928 inolusive.

&tiOleE 921, 922, 923 and 924, in general,provide for a trial,on the question of insanity, of the defendantwho is alleged to have become insane after hia oonviotion,and also setout thenature of the informationrequired to be filed with the judge of the court in order to obtain such a trial.

It is then provided inArticle 925, that: "Upon the trial of an issue of insanity, If thedefendant'is‘found'to,be insane,all furtherprooeedings in the ease against-shall be suspendeduntil he becomes sane." The next sucoeedingArticles Nos. 926 and 927 provide, in general, that if the defendant is found insane he shall be committedto the oustody of the sheriff, to be kept subjeot to the further orders of the County Judge, and furtherprovide that the County Judge shall at onoe take the necessary steps to have thedefendantconfined in a lunatic asylum untilhe becomes sane.

Then we findArtiole 928, as amendedby,Acts 1935, whioh reads as follows:

"If thedefendant becomes sane, he shall be brought before the court in whioh he was oonvioted or before the District Court in the county in which the defendant is located at the time he is alleged to have beOOm8 sane; and, a jury shallbe empaneled in the ocurt before~wbich such defendant isbrought to try the issue of hi8 sanity; and, sf he is found to be sane, the oonviotion shall beP?. * F.. L
Honorable 0. J. 6. Ellingson, May 3, 1939, Page 3, O-666

enforced againsthim as if the prOO88dingShad never been suspended." (Underscoringours) The word "proceedings"has beendefined as "all posl;ble

steps in an actionfrom its commencementto the execution of judgment" Greenv. Board of Commissioners, 259 Pac. 635; GreenleafV. Minneapolis Railway Company, 151 N. W. 879. Th8 word "suspend"has been definedmany times to mean "to cease temporaily from operation or activitg;N "to cause to 08898 for a tim8 from operation or effect;". "temporarycessation;" "to cause to cease for a time." Corpus Juris, vol. 60, p. 1190.

It is our,,opinion the only $&sib18 interpretation that could be given the above quoted,Article'S25 is, thatif a defendant after conviction andsentence is adjudged tobe insane hi8 sentence and punishment thereunder is suspended untilhis sanity is regained. .Duringthe'period of insanity,he shall not be punishedby confinement in thepenitentiaryas provided ,inth8 judgment of oonviction and sentence,but on the oontrary shall be committed to a lunatic asylum for treatment.'

It willbe noted thatArticle 926, above.quoted, after providing.for a trial to dtitermine‘whether or not.the defendanthas regainedhis sanity read8 as followst "And,' if he is found to be saner,the oonviotion shall be enforced againsthim a8 if the proceedingshad never been suspended." We interpret this to mean that the defendant,after regaining hi8 sanity, shall be returned to the proper authorities to be furtherpunished in accordancewith the judgmentof conviction, thepunishment tobegin where left off whendefendant wa8 adjudged insane andfurther punishment temporarily suspended. As we read and interpret the above mentioned statutes itWas not contemplatedby the ?8giSlatUre that thetime intervening between the date ofthe.judgment adjudging a defendant tobe insane and the date of the judgment adjudginghim to have regainedhis sanity shouldbe considered as punishment and credited as time spent on his sentenoe.

A diligent.

searchhas disclosedbut two oases wherein the courthas discussed the question whether or not the timewhich a convict, after conviction, spends in a state hospital is to be credited on his sentence. In the case of State ofMiIuI8sOta

v. J. H. Jorgenson, Sheriff, decidedby the Supreme Court of Minnesota and reported inVol. 62, American Law Report, page 244, it was held that where a person while serving a sentence in a county jail is duly committed to a state hospLta1 for the insane and there confined, the tim8 runs on his sentencewhile so confined in the latter institution. The court points out in this case that a state statute requires that time spent in the "atateprison" or "statereformatory" shallbe oounted as a~part ofthe term of his sentenoe and then states "this indicates a legislativepolicy of

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Honorable 0. J. C. Ellingson,May 3, 1939, Page 4, O-666

considering one who has commenoed serving a sentence as continuing so to serve, even though it be necessary to keep him at an-institution other than the one to which he was sentenced; so long as he is so kept involuntary on his part by an Under legal authority." The court construed the above mentioned statute to includeparsons confined in the county jail as well as thoseperSOnS confined in the "Stateprison" or "state reformatoryc.

‘In the case of State v. Brouillette, 163 La. 46, 111 So. 491, the Supreme Court of Louisiana also held that the time spentby a convict in a publia hospital should be counted as part of the8entence. The court in this oase construed a Louisiana statute to hold thatwhere a oonviothas been sent to the prison hospital for-,treatment, the time spent in the hospital shouldbe oounted on hi8 sentenoe.

In the absenoe of similar statutes in Texas we do not think either of the above cases oan properly be cited as authority for the proposition that time epent in sn insane asylum should~

be counted as part of the ssntenoe. It is our opinion and you are so advised that the time spent‘by a convict in' the state insane asylum should not be.counted on his sentenoe.
Respeotfully submitted ATTORNEY GENERAt OF TRXAS

TDR:PL-cg APPROVED: S/ Gerald C. Mann ATTORNRY GENERAL OF TEXAS s/ Tom D. Rowell; Jr.

m '~ Tom D. Rowe11

~3sistant