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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 patient bJho 

has been adjudicated by a court 

Dear .Dr. Hoerster: to be mentally incompetent. 

You have requested an opinion from this office cdncerning the effect of discharge from a mental hospital of a patient 

who has been theretofore adjudicated by a court to be mentally 

incompetent. 

This office held in Attorney General's Opinion No. WW796 (1760) that:. 

1'. . . a discharge from a mental hosg+t;l, 

does not, in itself effect a restoratia 

mentally IncompetenC person. Such act, that is 

a discharge from the mental hospital, merely 

'terminates the presumption that 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 effective date 

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 information concerning 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 appointment of a guardian for the incompetent, or an order of restoration from the court, as 

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Dr. San A. Hoerster, Jr., page 2 (C-i!. ) 

a prerequisite to the making of public assistance 

payments. It is observed that the Department 

adopted such policy merely in pursuance of its 

general duty and authority to administer programs 

of public assistance effectively and in accordance 

with the purposes of the respective enabling statutes,.purposes which would doubtless be thwarted 

in case of a recipient who was, for some reason, 

incapable of receiving and disposing of his assistance check in a reasonable and responsible manner. 

S incnr, e 01 

express prohibition, Federal or State, against making P YM t f u blic assistance funds to Persons 

deemead t?bi &coznetent. the following oninion 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 suggested that there was a failure in 

Attorney General's Opinion No. 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 suggested that there is a specific difference in the wording between Article 5547-83, Vernon's Civil Statutes, and Article 55&7-100, Vernon's Civil Statutes, as to the definitive 

nature of terminating incompetency. 

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 judicial determination under this 

Code that a person is mentally incompeteit p-&E 

a nresumotion that the nerson continues o e meatallv incomuetent until he is discharsed from the 

pe n3.h ta 0 it 

re-determined bv a court. 

II . . . 

'l(c) When any person under the provisions of 

this Code shall have been committed as a patient to 

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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 discharged and released bv such hosuktal. such Derson mav file awslication with such 

countv court for an order adjudicating that he is 

not now mentallv ill or incometent, to which 

application shall be attached a certification attesting to such facts, signed by an attending physician at the hospital to which such patient was 

committed. The court raav e ter an order mantins. 

such auulication; but, in zonnection therewith, 

he nay conduct a hearing and summon such witnesses as in his judgment may 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 patient who has been 

found. to be mentally incompetent terminates the 

presumption that he is mentally incompetent." 

Article 5$7-83 was amended by the Legislature in 1959 

(House Bill 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 emergency clause 

in House Bill 364 provides that: \ 

"The fact that there is not now any provision 

for judicial restoration of persons adjudged mentally incompetent under the Texas Mental Health 

Code, creates an emergency. . . .'I 

As was stated in Attorney General's Opinion 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 unsound mind or mentally incompetent, established the 

status of that person as of that time, and that such adjudicetion gave rise to a presumption that sucha person so adjudicated 

continued to be of unsound mind, or mentally incompetent, until 

such presumption might later be rebutted in a proceeding brought 

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 

135 S:W.2d 211 -i+--- Civ. - - 

"The implication of 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 adjidication of insanity 

by the county court raises a continuous rebuttable 

presumption of insanity, and that only a judgment 

of restoration of sanity, entered in a proceeding 

brought for that purpose, will be sufficient to 

conclusively remove such rebuttable presumption." 

Article 5547-81, Article 5547-83(a), and Article 5547- 

100 were contained in the original enactmen~t of the Mental Health 

Code and clearly indicate that it was the intention of the Legislature that the discharge of a patient from a mental hospital 

should merely terminate the presumntion that he is still mentally 

incompetent. However, if the Legislature had intended that such 

discharge was 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 committed to a mental hospital 

and thereafter released is no longer ~mentally ill or incompetent, 

would be unnecessary. 

Insofar as the phrase contained in Article 5547-100, to 

the effect that II. . the dishcarge under this Code of any patient committed to a dental hospital under the prior law terminates any presumption that he is mentally incompetent. . . .'I, 

is concerned, we are of the opinionthat a consideration of this 

phrase would in no way change the result reached in Attorney General's Opinion No. WW-796 (1960). The previously quoted portion 

of Article 5547-100 merely indicates that the effect of discharge 

from a mental hospital of one committed prior to the enactment of: 

the Mental Health Code will be the same as the discharge of a 

person committed after the enactment of the Mental Health Code. 

Consequently, we are of the opinion that a discharge 

from a mental hospital does not, 

of a mentally incompetent person. 

in itself, effect a restoration 

The discharge of a person from 

a mental hospital merely terminates the presumution that such person is mentally incompetent. Therefore, we~hereby re-affirm the 

holding reached in Attorney General's Opinion No. w-796 (1960). 

As was mentioned heretofore, the result reached in 

Attorney General's Opinion No. wW-796 (1960) was confined merely 

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 requirements as to men al competency that the 
. .* . 

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

Department of Public Health might decide were necessary, as a 

policy matter,, prior to the Making of welfare payments to a person who had previously been committed to a mental hospital. 

Under the Texas Mental Health Code a discharge 

from a mental hospital does not, in itself, effect 

a restoration of a mentally incompetent person. 

Such discharge merely terminates the 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 

Attorney General of Texas 

Bya-- P b- 

";I- Pat Bailey 

Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Scott Garrison 

Ernest Fortenberry 

Scranton Jones 

APPROVED: 

Stanton Stone 

Executive Assistant 

APPROVED: 

Waggoner Carr 

Attorney General 

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