r

ORNEY GENERAL 0 P?=XAS

October 24, 1958

Mr. 0. B. Ellis, Director Texas Departmentof Corrections Huntsville, Texas Opinion No. ww-518 Re: Computationof time to be credited on the term of a prisonerwhile he is confined In a Statemental Dear Mr. Ellis: hospital.

Your request for an opinion cqncerns the question of whether the provisions of House Bill 906, 55th Legislature, Regular Session, 1957,which repeals all existing statutes and makes provisions for prisoners to receive credit for t.ime while Inmental institutions J be retroactive In the case of a prisoner who was in Rusk StateMental Hospital at the time the Bill was passed.

Section 17 of House Bill 906, 55th Leglslature,Regular Session, 1957, chapter 486, at page 1416, also Article 932b of Vernon's Annotated Code of Criminal Procedure,, provides: "Thetime a prisoner is confined in a Statemental hospital for treatment shallbe consideredtime servedand shallbe credited to the term of his sentence,but he shallnot be entitled to any commutationof sentence for good conductwhile he is under treatment in a mental hospital." The effective date of this statutewas January 1, 1958.

In our Opinion No, O-5721, addressed to the Texas Prison System, Bureau of Records and Identification,Huntsville, Texas,we passed upon the questionwhether inmates of the Texas Prison Systemwho may at various times be adjulged insane and committedto State institutionsfor the insane are entitled to the benefits of the commutationof time as prescribed by law.

In answering that question,we said:Mr. 0. B. Ellis, page 2 (W-518 )

"Weare of the opinion thatthe foregoingdiscussiondislcosesa legislativepolicy In Texas of not subjecting insanepersons to criminalpunishment and that the time spentby an insane In a statehospital shouldnot be counted on his sentenceas a criminal." This opinionwas based primarily on the following authorities:Article 2 of the Penal,Codeprovides:

"Theobject of punishment is to supress crime and reform the offender." Article 34 of the Penal Code in part reads:

11 after he while In No person who becomes insane

is'foundguilty shall be punished such condition." Articles 925 and 928 ofVernon's Code of Criminal Procedurerespectivelyprovide:

"Upon the trial of an issue of insanity, if the defendant is found to be insane, all furtherproceedings in the case againsthim shallbe suspendeduntil he becomes sane." "If the defendantbecomessane, he shallbe brought before the court In which he was convlktedor before the District Court In the County inwhich the defendant is located at the time he is alleged to have become sane; and, a jury shallbe impaneled in the Court before which such defendant is brought to try the issue of his sanity;and, if he is found to be sane, the conviction shallbe enforced against him as if the proceedings had never been suspended." Also seeArticle 6184 L, Vernon's Civil Statutes,which provides for allowing convicts overtime for good conduct.

Section 16 of Article I of the Texas Constitutionprovides:c -

XI-.0. B. Ellis, page 3 (~~-518)

“ib bili of attainder. ex nest facto law, retroactive law-or any law impairing the obligation of contracts shall be made.!' (lkphasis added.) In 39 Texas Jurisprudence, page 54, we find the follovring language:
11

. . t A statute will not be

applied or construed retrospedtively or given retroactive operation, so as to affect existing rights or create new obligations and impose new duties as to past transactiors,unless It clearly appears, from its terms or at least by fair implication, that the Legislature so intended. On the contrary, a statute is generally held to operate prospectively unless a contrary construction is required by the terms or the nature and object of i-.!l e law
. It is always presumed that a ;statute,not relating merely to remedies and modes of procedure, is intended to operate prospectively, and all doubts are resolved in favor of such construction." (Giting City of ,Ft.Worth v. Morrow, 284 ,; .Y

. 275

.

_, L ; ic our opinion after examining Rouse Bill 906, 7 .::$.:::!n

i!... '7 ('C ) Regular Session, 1957, that the Legislature ,'~: :Ii-,-,t intend either clearly or by fair implication to make ~., ..,LL .y c ;t,-.t-utc

retroactive in operation. Even if the statute '3 :!::: rC?;;x::ct4ve

in operation the retroactive part would be voi,, :> ),-; ,,-, 1 ;. cj <pv%olat~ve of the Texas Constitution, Article IV, -:.::,yy.n:>

:I., y]:j,ch places all matters of clemency, reprieves, .: ol.:1,:1~::-11t:i.(:!:::

and pardons, 1.1~ the Governor. (See Ex Parte ;,;~Y ~;~is:lo:,,

152 s.:!.2nd 289; Gilderbloom v. State, 272 S.W. 2nd ?' )t is our opinion that the time spend by prisoners who i.;~~‘~: :iLn ; state mental hospj.talprior to January 1, 1958, does ;~!,'I<: (>i?i;;C LX&X- Section 17 of House Bill 906, 55th Legislature, :y~.~~:.y;>.-

:~egs:uon,

1957; that the time spent by prisoners after ,T~Y.yJlJ~-q?

1~ , rgqj, in such state mentz.1hospitals would come under ;:?oction

3.7 of-House Bill 906, 55th Legislature, Regular Session, 1?_;7.Mr. 0. B. Ellis, page 4. mw-518)

SUMMARY
Section 17 of House Bill 906, 55th Legislature, Regular Session, 1957, is not a retroactive statute which would give prisoners credit for time spent while under treatment in a state mental hospital prior to January 1, 

## 1958.
Yours very truly,

LEP:mfh WILL WILSON Attorney General of Texas

Assistant

APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman J. Milton Ri~chardson Jack Goodman Wm. R Hemphill Dean Davis Morgan Nesbitt R$?IEW$DVFCRTgr,TTORNEY GENERAL : . .