T 

Hon. Larry 0. Cox 

Executive Director 

Board for Texas State Hospitals 

and Special Schools 

Austin, Texas Opinion No, V-1454 

Re: Legality of accepting 

day students at Austin 

State School who have 

not been committed by 

Dear Sir: a county co~urt. 

Your request for an opinion reads in part 

as follows: 

"We desire the opinion of yo'ur office regarding the legality of accepting, 

educating, and instructing feeble-minded 

day students at the Austin State School, 

without having them committed by a co.unty 

court. 

"The Board for Texas State Hospitals 

and Special Schools at a special meeting on 

February 25, 1952, approved a plan to educate such feeble-minded day students, subject to a favorable opinion from your department. 

"The day st,udents wo,uld come within 

the definition of feeble-minded children 

as defined In Article 3233 (V.C.S,), but 

they would not be committed and wouqd return to their homes each day after classes. 

They wo,uld attend the same classes as the 

committed cases. 

"The Board has some doubt as to Its 

legal power, or authority to train s~uch students without commitment, and your opinion 

is necessary on account of the conflict;- 

ing views of the Board Members. D e a 
-.- 

Hon. Larry 0. Cox, page 2 (V-1454) 

The control and management of the A,ustin 

State School, a State institution for the care of 

feeble-minded persons, is vested in the Board for 

Texas State Hospitals and Special Schools. 

317413, Sets. 2 and 3, 3177, and 3234, V.C.S. 

Arts. 

Its 

operation Is financed by biennial appropriations 

out of the general revenue and local funds of the 

institution. H.B. 426, Acts 52nd Leg. R.S. 1951 

ch. 499, Art. II, at p- 1257;'Art. 3236, V.C.S. bnder Section 5 of Article 3174b, the Board may promulgate such rules and regulations as It deems proper 

for the efficient administration of the institution, 

Articles 3233 through 3238, V.C.S., have 

specific application to the admission and care ,of 

the feeble-minded in the Austin State School. For 

the purpose of those statutes, a feeble-minded child 

is defined in Article 3233 as follows: 

"A feeble minded child . . D is one 

of such feeble mental or moral powers as 

to be ,unable to profit by the ordinary 

methods of education as employed in the 

common schools." 

With respect to the admission of the feebleminded in that School, Articles 3235 and 3238 are applicable. They provide: 

Article 3235 - "The Board shall provide accomodations for only such number of 

inmates from year to year as can be advantageo,usly cared for with the appropriation 

granted for that year, giving preference 

first to girls and women of child bearing 

age, and to those of both sexes who are 

most likely to profit by the special education and training." 

Article 3238 - "In all cases in which 

the parent or guardian of a feeble minded 

person is financially able to pay the expenses of supporting and training such 

feeble minded person in the school, in whole 

or in part, he shall be required to do so. 

In all other cases there shall be no fees 

or charges." 

Article 3236 then provides in part: 
. . . - 

Hon. Larry 0. Cox, page 3 (V-1454) 

"All persons committed or admltted to said institution shalTremaIn 

Fits oustody as permanent wards, of 

this State until released by the management thereof. The superintendent and 

Board may in their discretion e . D at 

any time, parole any such person in the 

custody of parent or guardian for an indefinite period. D . .' (Emphasis ours.) 

Thus, in the laws pertaining to the Austin 

State School there is fo,und no provision which.req,uires 

that a feeble-minded child, as therein defined, must be 

adjudged and committed by a court as such, before he may 

be admitted to that institution. 

Articles 3867 through 3871, V,C.S., are 

the procedural laws providing for the adjudication 

and commitment of the feeble-minded to the Austin 

State School by a proper co,unty court. Article 3871 

reads as follows: 

"If such.person be found to be 

feeble minded, the court shall enter 

its order SO adjudging him, and that 

he be committed to the c,ustody of the 

Austin State School. Upon the entry of 

such order, the court shall cause to be 

prepared a transcript of the proceedings 

and'evidence, which shall show the age, 

sex, race, status and mental condition 

of the patient, . . . and transmit the 

same to the superintendent of such school. 

If the patient is entitled to be received 

into the school, and there Is sufficient 

room therein, the superintendent shall 

notify said judge thereof, whereupon the 

.judge shall arrange to send such person 

to said school in like manner in all respects as is provided for the sending of 

insane patients to an asylum." 

It Is pertinent to note that Articles 

x867-71, which have their origin in Senate Bill 

321, Acts 38th Leg., R.S. 1923, ch. 82, ps 172, 

were enacted several years after the laws governing 

admissions into the Austin State School. H.B. 73, 

Acts 34th Leg., R.S. 1915, ch. 90, p0 143. Section 10 of Senate Bill 321, s'upra, specifically 
.^ . . . _ 

Hon. Larry 0. Cox, page 4 (V-1454) 

provides that the adjudication-commitment law "shall 

not suspend the right to have feeble minded persots 

admitted to such institution under existing laws. 

The statutes respecting the Austin State School for 

feeble-minded persons and commitment of patients 

thereto should be liberally construed in order to 

accomplish beneficent and humanitarian objectives 

thereof as nearly as possible. Schultz vi Brown 

152 S.W.2d 801 (Tex. Clv. App. 1941,'error di8m.j. 

Accordingly, it is our opinion that the 

governing board of the Austin State School may legally accept, educate and instruct feeble-minded ,children, 

as defined in Article 3233 and authorized in Article 

3235, without their having been committed by a county 

court, subject to the laws concerning their admission 

in that institution. Since Article 3236 permits the 

release of admitted persons Tao the custody of a parent 

or guardian for an Indefinite period, such non-committed 

children may, at the discretion of the Board, be permitted to return to their homes each day after special education: 

SUMMARY 

The Board for Texas State Hospitals 

and Special Schools may legally accept, 

educate and instruct in the Austin State 

School feeble-minded children, as defined 

in Article 3233, V.C.S., without their 

having been committed by a county court, 

subject to applicable laws concerning 

their admission. Art. 3235, V.C.S. At 

the Board's discretion, such admitted 

children may be permitted to ret.urn to, 

their homes each day after classes. Art. 

3236, V.C.S. 

Yours very truly, 

APPROVED: 

E. Jacobson 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

CEO:mh 

PRICE DANIEL 

Attorney General 

Bym 2x%=-&J 

Chester E. Ollison 

Assistant