May 3, 1939 

Honorable 0. J. S. Ellingson 

General Manager 

Texas Prison System 

Huntsville, Texas 

Dear.Sir: 

Opinion Wo; O-666 

Ret :I8 a,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, in whichyou request an opinion of this-Department 

on the above question. 'Your letter reads as fol1ows.t. 

"This inmate has several oonvictions against 

her, eaoh for"two years-Andy all ran conourrently, the lastof whioh was for forgery and 

she was sentenced by 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 Cause No. 21,394, oonvloted by a jury on 

Maroh 2, 1935,,and was sentenoed to the Austin 

State Hospital. 

ftWe have no record of her conviction for insanity nor of the time she spent in the Austin 

State Hospital, but we are advised by an attorney representing her 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-arrested early in 1938 

and was transferred,to the penitentiary on 

February 27, 1939. .:, 

'WY. Jobnson*s attorney~'advises us that under 

the holdingsof the,Court of Criminal Appeals, 

she is entitled to have the time spent in the 

Austin State Hospital oomputed,on her sentence, 

and if this be true. she would be released from 

prisoti. Will you'plesse'advise whether we have 
Honorable 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 oonsidering her eligibility for 

release from prison." 

Artiole 34 of the Penal Code of the State of Texas 

provide8 in part that: 

"NO person who becomes insane after he is found 

guilty shall be punished while in such oondition." 

This statute is plain and unambiguous and of course 

means exactly what it sags. 

The procedure to be followed in making effeotive 

the provisions of the above statute in oasee of insanity 

after oonviotion is set out in Title 12, Chapter 1) of the 

Code of Criminal Prodeoure 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 defendant who 

is alleged to have become insane after hia oonviotion, and also 

setout the nature of the information required to be filed with 

the judge of the court in order to obtain such a trial. 

It is then provided in Article 925, that: 

"Upon the trial of an issue of insanity, If 

the defendant'is‘found' to,be insane, all further prooeedings in the ease against -shall 

be suspended until he becomes sane." 

The next sucoeeding Articles Nos. 926 and 927 

provide, in general, that if the defendant is found insane 

he shall be committed to the oustody of the sheriff, to be 

kept subjeot to the further orders of the County Judge, and 

further provide that the County Judge shall at onoe take the 

necessary steps to have thedefendant confined in a lunatic 

asylum until he becomes sane. 

Then we find Artiole 928, as amended by,Acts 1935, 

whioh reads as follows: 

"If the defendant 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 shall be 

empaneled in the ocurt before~wbich such defendant 

is brought to try the issue of hi8 sanity; and, sf 

he is found to be sane, the oonviotion shall be 
P?. 

* F.. 

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Honorable 0. J. 6. Ellingson, May 3, 1939, Page 3, O-666 

enforced against him as if the prOO88dingS had never 

been suspended." (Underscoring ours) 

The word "proceedings" has been defined as "all 

posl;ble steps in an action from its commencement to the 

execution of judgment" Green v. Board of Commissioners, 259 

Pac. 635; Greenleaf V. Minneapolis Railway Company, 151 

N. W. 879. Th8 word "suspend" has been defined many times 

to mean "to cease temporaily from operation or activitg;N 

"to cause to 08898 for a tim8 from operation or effect;". 

"temporary cessation;" "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 to be insane 

hi8 sentence and punishment thereunder is suspended until his 

sanity is regained. .During the'period of insanity, he shall 

not be punished by confinement in thepenitentiary as provided 

,in th8 judgment of oonviction and sentence, but on the oontrary 

shall be committed to a lunatic asylum for treatment.' 

It will be noted that Article 926, above.quoted, 

after providing.for a trial to dtitermine‘whether or not.the 

defendant has regained his sanity read8 as followst "And,' if 

he is found to be saner, the oonviotion shall be enforced 

against him a8 if the proceedings had never been suspended." 

We interpret this to mean that the defendant, after regaining 

hi8 sanity, shall be returned to the proper authorities to be 

further punished in accordance with the judgment of conviction, 

the punishment to begin where left off whendefendant wa8 

adjudged insane and further punishment temporarily suspended. 

As we read and interpret the above mentioned statutes it Was 

not contemplated by the ?8giSlatUre that the time intervening 

between the date ofthe.judgment adjudging a defendant to be 

insane and the date of the judgment adjudging him to have 

regained his sanity should be considered as punishment and 

credited as time spent on his sentenoe. 

A diligent. search has disclosed but two oases wherein the court has discussed the question whether or not the 

time which a convict, after conviction, spends in a state hospital is to be credited on his sentence. In the case of State 

of MiIuI8sOta v. J. H. Jorgenson, Sheriff, decided by the Supreme Court of Minnesota and reported in Vol. 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 sentence while so confined in the latter institution. The court points out in this case that a state statute 

requires that time spent in the "atate prison" or "state reformatory" shallbe oounted as a~part of the term of his sentenoe and then states "this indicates a legislative policy 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 include parsons confined in the county jail as well 

as those perSOnS confined in the "State prison" 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 spent by a convict in a publia hospital should be counted 

as part of the 8 entence. The court in this oase construed a 

Louisiana statute to hold that where a oonviot has been sent 

to the prison hospital for-,treatment, the time spent in the 

hospital should be 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