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January 11, 1839 

Board of Pardons and Paroles 

State of Texas 

Austin, Texas 

Gentlemenl Attention: Mr. T. C. Anclrers 

opinion NO. o-m 

Bet Jurisdiction of District Court other 

than court In which conviction was had to 

determine qUeStiOn Of Sanity Of inSan8 

person under sentence of 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, subsequently adjudicated insane by the Bexar County 

District Court, and at present confined in the penitentiary at 

Huntsville as an insane person under sentence of death, (because 

of the refusal of the superintendent of any state hospital for 

the insane to receive him as an insane person after an action 

to declare him sane had been filed and tried in the District. 

Court of Bexar County, the jury failed 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 commute his death sentence to life lmprisonment In the penitentiaryt 

This Department is of the opinion that commutation of the 

death sentence by the Governor rlll neither confer potential 

jurisdiction on the walker County District Court if It does not 

now possess it, nor deprive it of potential jurisdiction if it 

now possesses potential jurisdiction. 

Article ~4, Penal Code of Texas, l925, provides In part 

as follows: 

" . . . $0 person who becomes insane after he is found 

guilty shall be punished while in such conditionm 

Article 928, Code of Criminal Procedure of Texas, 3.925, as 

amended by Acts 1935, 44th Legis., p. 557, oh. 239, sec. 1, provides as followsr 

@If the defendant becomes sane, he shall be brOU@t before 

the court in which he was convicted or before the District 
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Court in the County in which the defendant is located at 

the time he 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 shall be enforced 

against him as if the proceedings had never been suspended," 

The effect of this Article is to confer oonourrent jurisddction to determine the question of sanity arising after conviction 

and jud@nent of 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 allegations of his 

sanity are filed. 

Therefore it would appear that since the subject of your inquiry is at present located in the penitentiary 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 enforced against him 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 Articles 929 

and 930 of the Code of Criminal Procedure, 1995. Prom this omission it appears that while the procedure in such cases before the 

court in which the GOnviCtion is had is fully prescribed by such 

articles, the Legislature has failed to prescribe the procedure 

to be followed in such cases before the District Court of the 

county In which the defendant is located at the time he is alleged to have become sane , in the event the suit is instituted 

in the latter county rather than the court in which the conviction was had. 

However, in accordance with general rules, where the Legislature fails to prescribe rules of procedure in detail, the trial 

court is authorized to adopt reasonable rules and regulations 

relating to such procedure, and If the procedure 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 

cannot be determined from your letter whether the action to declare slcKenaie Sane, once tried in the District Court of Bexar 

County and resulting in a hung jury, is still pending. 

If this action is still pending 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 jurisdiction to determine the question of sanity unless 

and until such cause is dismissed. 

Pours respectfully, 

ATTORWEY GEWZRAL OF TEXAS 

BY R. T. Fairchild 

Assistant 

APPROVED: 

ATTOSWX GlMERBL OF TEXAS