- .

Aurwrx~ aa. TEXAS January 

### 23, 1963

Dr. Sam A. Hoerster, Jr. Opinion No. C-4 Superintendent Austin State Hospital Re: The effect of discharge from a Austin, Texas mental hospital of a patientbJho has been adjudicatedby a court Dear .Dr.

Hoerster: to be mentally incompetent.
You have requestedan opinion from this office cdncerning the effect of discharge from a mental hospital of a patient who has been theretoforeadjudicatedby a court to be mentally incompetent.

This office held in Attorney General's Opinion No. WW

### 796 (1760) that:.

1'.

. . a discharge from a mental hosg+t;l, does not, in itself effect a restoratia mentally IncompetenCperson. Such act, that is a discharge from the mental hospital,merely 'terminates

the presumptionthat he is mentally incompetent.' An action in the county court is still necessary to addudicate that question.

. . .I' This holding in Attorney General's Opinion No; WW-7% (1960)was made upon the question of:



### "3. If a person was adjudged to be 'mentally incompetent'by~a court after the effectivedate of House Bill No. 6 and was discharged from the state hospital after that date, is the certificate from the superintendent of the state hospital sufficient to restore the civil rights of that individual so that he may receive, endorse, and expend his public assistance check without a guardian or without a judicial.determination of his restoration?" The background informationconcerning the uestion posed in Attorney General's Opinion No. 

### WW-796 (19607 is most important and a portion thereof is set forth as follows:

"
. . . it has been the policy of the Department of Public Welfare to require,with respect to all three classes of persons above mentioned, either the appointmentof a guardian for the incompetent, or an order of restorationfrom the court, as -9-Dr. San A. Hoerster, Jr., page 2 (C-i!. )

a prerequisiteto the making of public assistance payments. It is observed that the Department adopted such policy merely in pursuanceof its general duty and authority to administerprograms of public assistanceeffectively and in accordance with the purposes of the respectiveenabling statutes,.purposes

which would doubtlessbe thwarted in case of a recipientwho was, for some reason, incapable of receiving and disposing of his assistance check in a reasonableand responsible manner. S e incnr, 01 express prohibition,Federal or State, againstmaking P YM t f u blic assistancefunds to Persons deemead t?bi &coznetent. the followingoninion is confined to the lenal effect of a discharge of a person from a mental hospital,under the Texas Mantal Health Code." (Emphasis added). It has been suggestedthat there was a failure in Attorney General's OpinionNo. NW-796 (1960) to consider the applicability

of Article 5547-100,Vernon's Civil Statutes,pertaining to the question of competency. In additions it has been suggestedthat there is a specificdifference in the wording betweenArticle 

### 5547-83, Vernon's Civil Statutes, and Article 55&7-100,

Vernon's Civil Statutes,as to the definitive nature of terminatingincompetency.

Article 5547-100 &the Mental Health Code provides in part that:

II the discharge under this Code of any patieni go&itted to a mental hospitalt under the prior law ;ncomuet n ,t

. . . . Article 

### 5547-83

of the Mental Health Code provides in part that:

"(a) The judicialdetermination under this Code that a person is mentally incompeteit p-&E a nresumotionthat the nerson continues o e meatallv incomuetentuntil he is discharsedfrom the pe ta n3.h 0 it re-determined

bv a court. II

. . . 'l(c) When any person under the provisionsof this Code shall have been committedas a patient to

-lO-Dr. Sam A. Hoerster, Jr., page 3 (C-4 1

a mental hospital for any period, regardless of duration by order of a county court, and shall have been dischargedand releasedbv such hosuktal. such Derson mav file awslication with such countv court for an order adjudicatingthat he is not now mentallv ill or incometent, to which application shall be attached a certificationattesting to such facts, signed by an attendingphysician at the hospital to which such patientwas committed. The court raav e ter an order mantins. such auulication; but, in zonnectiontherewith, he nay conduct a hearing and summon such witnesses as in his judgmentmay be necessary to satify him as to the merits of the application." (Emphasis

added).

that: Articles 5547-81,Vernon's Civil Statutes,provides

11

. . . l'(b) The discharge of a patientwho has been found. to be mentally incompetentterminatesthe presumptionthat he is mentally incompetent." Article 5$7-83 was amended by the Legislaturein 1959 (HouseBill 364, Acts of 1959, 56th Leg.; Regular Session, chap. 409, page 8871, and section cc), set forth~above, was added to the existing prwisiops of Article 5547-83. The emergencyclause in House Bill 364 provides that: \

"The fact that there is not now any provision for judicialrestoration of persons adjudgedmentally incompetentunder the Texas Mental Health Code, creates an emergency. . . .'I As was stated in Attorney General'sOpinion No. WW796 (1960),prior to the adoption of the Mental Health Code it was well settled that the adjudication by a court that a person was of unsoundmind or mentally incompetent, establishedthe status of that person as of that time, and that such adjudicetion gave rise to a presumptionthat sucha person so adjudicated continued to be of unsound mind, or mentally incompetent, until such presumptionmight later be rebutted in a proceedingbrought for that purpose.

In the case of Elliott v. Elliott 208 S.W.2d 709 (Civ. App. 1948, error ref. n.r.e.), it was statei by the court that:. .

Dr. Sam A. Hoerster, Jr., page 4 

### cc-4 1

holdings in W lli MS

-i+--- 

### 135 S:W.2d 211 Civ.

- - "The implicationof the v. Siaair-Prairie Oil Co, App. 

### 1939 error ref. judg;. car.); i+ox)fTel

. White, &S.W.2a 3$ (Civ.App.1943 erro: ref. w.o.M.); Bolton v. ewart, 191 S.W.2d 798 (Civ. App. 1945); and Joy v. IVY 194 S.W.2d 411 (Civ. App. 1946), is that an adjidicationof insanity by the county court raises a continuousrebuttable presumptionof insanity,and that only a judgment of restorationof sanity, entered in a proceeding brought for that purpose,will be sufficientto conclusively

remove such rebuttablepresumption." Article 5547-81,Article 5547-83(a), and Article 5547- 100 were containedin the original enactmen~t of the Mental Health Code and clearly indicate that it was the intentionof the Legislature that the discharge of a patient from a mental hospital shouldmerely terminatethe presumntionthat he is still mentally incompetent. However, if the Legislature had intended that such dischargewas also to act as a restoration.of sanity or competency, the enactment of Article 5547-83(c), which provides for adjudicating

that one who has been committedto a mental hospital and thereafter

released is no longer~mentally ill or incompetent, would be unnecessary.

Insofar as the phrase containedin Article 5547-100,to the effect that II.
. the dishcargeunder this Code of any patient committedto a dental hospital under the prior law terminates any presumptionthat he is mentally incompetent.

. . .'I, is concerned,

we are of the opinionthat a consideration of this phrasewould in no way change the result reached in AttorneyGeneral's OpinionNo. WW-796 (1960). The previouslyquoted portion of Article 5547-100merely indicates that the effect of discharge from a mental hospital of one committedprior to the enactmentof: the Mental Health Code will be the same as the dischargeof a person committedafter the enactment of the Mental Health Code.

Consequently,

we are of the opinion that a discharge from a mental hospitaldoes not, of a mentally incompetentperson. in itself, effect a restoration The discharge of a person from a mental hospitalmerely terminatesthe presumutionthat such person is mentally incompetent. Therefore, we~hereby re-affirm the holding reached in Attorney General'sOpinion No. w-796 (1960).

As was mentionedheretofore,the result reached in AttorneyGeneral'sOpinion No. wW-796 (1960)was confinedmerely to the legal effect of a discharge of a person from a mental hospital under the Texas Mental Health Code t and did not deal with the issue of what requirementsas to men al competencythat the. .*

.

_ -

Dr. Sam A. Hoerster~, Jr., page 5 (C-4 1

Departmentof Public Health might decide were necessary,as a policy matter,,

prior to the Making of welfare payments to a person who had previouslybeen committedto a mental hospital.

Under the Texas Mental Health Code a discharge from a mental hospital does not, in itself, effect a restorationof a mentally incompetentperson. Such dischargemerely terminatesthe presumption that he.is mentally incompetent. Insofar as pertinent Attorney General's Opinion No. WW-796 (1960) is re-affirmed. Yours very truly, WAGGONER CARR AttorneyGeneral of Texas 

# P b- Bya--

";I- Pat Bailey Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Scott Garrison Ernest Fortenberry Scranton Jones APPROVED: Stanton Stone ExecutiveAssistant APPROVED: Waggoner Carr AttorneyGeneral

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