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January 11, 1839
Board of Pardons andParoles State of Texas Austin, Texas Gentlemenl Attention: Mr. T. C. Anclrers opinionNO. o-m Bet Jurisdiction of District Court other than court Inwhich convictionwas had to determine qUeStiOnOf Sanity Of inSan8 person under sentenceof death, in event the sentence is commuted to life imprisonment. Your request for an opinion has been received by this office. You ask substantially the following question: May a person convicted of murder in Bexar County, sentenced to death, subsequentlyadjudicated insaneby the Bexar County District Court, and at present confined in thepenitentiary at Huntsville as an insaneperson under sentenceof death, (because of the refusal of the superintendentof any state hospital for the insane to receive him as an insaneperson after an action to declare him sane had been filed and tried in the District. Court of Bexar County, the juryfailed to agree, and the District Judge of Bexar County refused to try him again)be tried in Walker County for the purpose of aeternining the question of his sanity, should the Governor commutehis death sentence to life lmprisonment In the penitentiaryt This Department is of the opinion that commutation of the death sentenceby the Governorrlll neither conferpotential jurisdictionon the walker County District Court if It does not now possess it, nor deprive it of potential jurisdiction if it now possessespotential jurisdiction. Article ~4, Penal Code of Texas, l925,provides Inpart as follows: "

...$0 person who becomes insane afterhe is found guilty shallbe punished while in such conditionm Article 928, Code of CriminalProcedure of Texas, 3.925, as amended by Acts 1935, 44th Legis.,p. 557, oh. 239, sec. 1,provides as followsr @If the defendantbecomes sane, he shallbe brOU@t before the court inwhich he was convicted or before the District

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Court in the County inwhich the defendant is located at the timehe is alleged to have become sane; and, a jury shall be lmpaneled 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 theproceedings had never been suspended," The effectof this Article is to confer oonourrent jurisddction to determine the questionof sanity arising after conviction and jud@nentof insanity,upon either the court in which the conviction was had or the distri.Ct court of the county In which the subject defendant is located at the time the allegationsof his sanity are filed. Therefore itwould appear that since the subject of your inquiry is at present located in thepenitentiary at Huntsville in Walker County, the Walker County District Court has jurisdiction, under this statute, to determine the question of the subject's sanity, and if he is determined to be sane, the death sentence must be enforcedagainsthim unless the Governor intervenes. In investigating this question it has come to the attention of this Dcpartuent that th,e Legislature, while it amended Article 928 as above indicated,failed to amend Articles929 and 930 of the Code of CriminalProcedure, 1995. Prom this omission it appears that while theprocedure in such casesbefore the court in which the GOnviCtion is had is fully prescribed by such articles, the Legislature has failed toprescribe theprocedure to be followed in such casesbefore the District Court of the county In which the defendant is located at the timehe is alleged to have become sane, in the event the suit is instituted in the latter countyrather than the court in which the conviction was had. However, in accordancewith general rules, where the Legislature fails toprescribe rules of procedure in detail, the trial court is authorized to adopt reasonable rules and regulations relating to suchprocedure, and If theprocedure set out in Artlcles 928 and 930 is followed SO far as applicable, it is our opinion that will be sufficient. Your attention is likewise directed to the fact that it cannotbe determined from your letter whether the action to declareslcKenaieSane, once tried in the District Court of Bexar County and resulting in a hung jury, is stillpending. If this action is stillpending in Bexar County, it is our opinion that by reason of the prior pendency of such action in that court, the District Court of Bexar County will have exclu-

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sive jurisdictionto determine the questionof sanityunless and until such cause is dismissed.

Pours respectfully, ATTORWEY GEWZRAL OF TEXAS

BY R. T. Fairchild

Assistant

APPROVED:

ATTOSWX GlMERBL **OF** TEXAS