Texas Prison 8ystem 

Suraau 04 Rsoorda and Identification 

Huntsville, Tvxas 

Attentionr Mr. J. C. Roberts 

Eaar Sira Opinion No. O-5721 

Ret Insana Prison Inmates. 

'Aa have carefully considered your requecrt for an opinion 

of this department upon the question of ocnnputing time and over-time 

credits of those convict.8 who have been adjudged insane and omitted 

to a state hospital for the insane. Ye quote in part from your letter 

aa followsr 

"Aa custodian of the records of the inmates of 

the Taxas Prison System. I am endeavoring to canply 

with the provisioas of ths recent oQlmPutation law 

oontainsd in S. B. 239 made effective as of May 22, 1943. 

"In aotting up the individual records in accordance with this law, I find that this l?ureeu still 

carries on its records. many inmates rho were at 

various times adjudged insane by the Walker Co&Ay 

courts and OOnu&tted to atate institution8 for the 

insane, particularly the Rusk Stats Hospital. I am 

aware of the fact th8t we shall give eaoh such inmate credit for any and all aaanutstion of tima and 

overtlmr credits earned to and including the date 

of removal from the penitentiary, however the question ha8 arisen aa to what the inmate would be en-. 

titled to after leaving prison and while being oonfined to the Asylum. 

"I should like very much to have your opinion 

a8 to whether thaae inmates are entitled to the tenefits of the oaarmutatlon of time aa preaoribed by 

law, Or should they be aleared of our records entirely, or just how they should be truatsd." 

We have found no Texas rtatutes upon the topic of whether 

or not the tima a oonvlot spends in a stats hospital na stated in your 

request is to be counted BI tiae served on hia prison ssntsncs. m 

have likswiae bean unable to locate any judicial authority in Texas 
Ten* Pri#OB system, page 2 O-5721 

upon this rubject. In fact, our rearoh ha8 di~olo~sd but trro cams 

whenin the oourt has disousssd the question of ahether or not the 

the whioh a oonriaf, after oonrlati~ and crmmifinent to a penal in8titution, .spmda in a stats hospital is to be credited on his smtence. 

In the oam of Stat0 of Minnesota v. J. Ii. Jorgenson, 62 A.L.R., p. 

244, it ns held that where a pereon while rening a sentenaa in a 

oounty jail I8 duly oamittod to 8 etato horpital for the intane and 

there ooafimd. thm tima MB cn hir Bentease rhilg ao confined In 

the latkr inrtituticn. The court pointed out however that a Mimesota statntr rpoifioally provided that L prlroaw serving time in a 

state prison, rhc is adjudged ln11ane and committed to l etats insane 

l rylum, ahall have the time he ir confined in thm latter counted as 

part of tha term of his aentmbe. &me Tens haa no rimilar statute 

wa do act think thir case can be sited l 8 an authority for the propcsitiw that the time l pnt in an itwane arylum rhould be counted as 

part of the wntenoe. 

In the case of State ‘I. Bouillstte, MS La. 48. 111 So. 

491, the oourt held that the timm a prlroner was confined in the 

priron hospital almuld be aounted an part of hir time in jail. We 

lik@wiae do not believe this oaae ir any authority upon the subject 

under ooaridsratlon sinoe our &ate inlana l 8ylum6 mm not under 

primon suprvi~ionn. 

Some inferenae to the solution of thin quartion oan be 

ascertained fran certain rtatuter and decl#ions upon the inaane and 

the punishment of orlminala. 

Article 2 of the Rnal Code prorider: 

*Ths objeot of punlrlwat ia to ruppresa criw 

and reform the offondw.’ 

Artiola 34 of the Anal Code in part roadat 

“. . . . No person rho beoomr inrme after he 

ir found guilty rhll be punished while in ruoh oondition.” 

Artiolsr 925 and 926 of Vwnon’a Code of Criminal Pro00 - 

dure rewpeatively pmvid*r 

YJpon the trial of an irrue of inranity, if the 

dafandant ia found to be inrano, all firthor prooeedinge 

in the eaaa against him shall b *n#pended’@il ha be- 

*me. mm.” 

*If the defendant beoomsa sane, ha @hall M brought 

befor, the 00w-t in nhioh ha uaa aonvioted or before the 

matrid Court in the Counw in whiah the defendant 16 

locatmd at the time he is alleged to have beOOm~ UUIO; and, 
. - 

a jury shall be impan.;.d in the Court before which 

su?h d.fe=mdSnt is brought to try the issue of his 

srnity; wd, if h. is found to be ssv., th. conviction shall be enforced nsainat him as if th. proacedings had nwcr keen suspended." 

If the purposn E? our criminal cod. is in part to r.fosys 

the offender. csrtainly this purpos. would not bs reached by punishing 

a person who is insane; efforts to reform xucb a pwson would in most 

!.nstanoes be fuutll.. Also (IS indicated by Artiol. 54 abows quoted, it 

appears to have bean the intention a0nny.d ther.by that laws. permns 

should not tm subj.ct to any punirhwnt while la such a afate. A8 

shown by the abcr. quotation6 from the Cod. of fklminal Prooedure, a 

person oh.0 IH rJ!lty of an offans. aad ie found to be Inrum, all proceedings as kc :h. ariM) should be suspended. After such a p.rscn has 

tagaimd hlr sanlly, h. is returned to anww th. orlminal charges so 

nad. against n.i*. 

:‘h. statutes n. have allowing oomiats ovw time for good 

conduct a~. nracted "in order to anaouragr prison disciplia.." S.. 

~rtirtl. 6164 !a, Vernon’s Civil 6tatut.S et T.%sS. 

-!I I? 7s~. Jur., p. 815, via find the fallowing lanyagar 

"4 psrsnn who has be.n s.nteno.d to impriso~.nt 

In th. pcoitantiary or a jail can s.rv. hia s.nt.ncs 

only by aatunl incarawation within Its mlls; no othar 

kjnd of' custody tilt answr or di8bharg. such lnprisonmsnt. . . .- (Citing SartU V. Stats, 10 Grim. kpp. 

66:. 38 Am. Hop. 649.) 

There are som. exoeptions to the rule of law announced in 

the for.go!ng quot&ion, suah as ar. found in Article 776, Vernon*s 

Cod. of h;minnl Procedure, as amended in 1951, and Art1010 6203, 

Flovlssd Civil Statutes, but thay have no application to th. qu.stion 

we are hers acnsidorfng. 

?is ar. of th. orinlon that the foregoing discussion disCosss a l.gisirt+vc policy in ?.xsa of not subjsc+Ang insan. persons 

to or;minal pun'.shment and that the time sp.nt by an insane in a atat. 

hospital ahcu!d not bc counted cn his senteno. as a criminal. 

't 1s fJrth.r our opinion that the individual records of 

tb.ss ccnvIctr rho nra in inaan. institutions should not be aomplstely 

roGr*d for aos.c of these individuals may at scsso Puturs dats rsgain 

his snnity. If such a contingency should arise, th. reoords would bs 

needed tn ordnr to have a complete history of eaoh cas., as such a 

person would bs retunsd to th. propsr penal institution to complots 

th. sentence tslnporarily suspandsd by his Insanity. 
The ZongolnC, aonaluriom pmoluded my dieoumion of 

other matterr oontained in your rrquelt. 

YOU-l wry truly 

ATTGRNRY GRlllERIL OF TERM 

Ry r/bmt 6. Kooh 

Robort 0. Kooh 

Arrimtant 

ROK:dbr+o 

APPROVED JAN. 26, 1944 

s/r,lwor Rsllorr 

ATTORNEY WNISRAL OF I%%8 

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