2” ;h

‘Y **OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**

**4 AUSTIN** 

lioaarabld

Waver B. Baker Ghairman, State Board of’ Control Austin, Texas

Pau rrako

the Sol this department, t(b-

‘Of 8ar alla

p trol h&a enc for an opinion from

csuao of the mergenc7 state Board of Gontnixlag freshmeat 8 of the state of 08 pounds monthly. The big aquenm3,ve lnitiatsda plan of and thus fw ve ham been n a reasonably satisfactory of nonq to tha State.

o carry on tho program in the most eaonomlunbent **on U.U**  **to** obtain **aa nawh**  **reed stuff** 

in the viobity of each institiution that could be gatheredaJ s~lplsysos

;md patients of our inatltutione’ on a bisfe OS a perotstage of the orop to the owner and a peroentageto the institutionsuppying the labor, or an some other basis.

r%inoe the eatabliehmfmtoi the eleemo~ e7stam, perhaps m$ of the aatualwork performed on the grwnde, in the gydrjns, on the farms-ti doirJr haa bea done b7 prrtient labor. 111 p8ycblatristo agree that proper17 superrisedlnbor Poll reorsationaotuallybemfit mpnJ **patients mOc0** thaa anf--.

Uozuwable~eaverD.Baker - peg82

other thing that mu be done for them. Ho patient or inaate OP one OS our schools Is ever required to perf+om any lnbor againsthis will, although the mntal patients msy not logallybe able to &ire eonsent,nmertheless they do km8 uhat they are do%ng sod enJOy the work. It is figured that 6 **patients** will do the uork of on% ordinary laborer,whhon

the7 ere proper17Oared for b7 the emplogeee of the state;

#The State Board of Controlwould liko very mmh to utllise, an soon as possible,anei hereafter, the employees, patientsand Innate5 Of Our aohoole,on garden and agrioultural laad6 ad)aoent or near eaoh Institutionfor the purpose or obtainingfeed foe %omcatio livestockor food far persons in our custody on some basis of obtainingthe fruits of their labor for the beuef'it Of the instltutlon. Will 70~1,

therefore,adrise us ae followa~ s(1) Vould the Dootor-Superintexxlont of any aentsl hospital in Texas have the right to make an agreementwith an owner of a fa5 or gar%ea mop, to harvest such crop, pith a share to the owner +d a share to the institutions, b7 use of pat&oat labor, mapesvlsedb7 regular17employ& attendauts, uhere in the fuaslwntof such DootorGuper%ntendent,eueh laboruould in Saot benat such patients aandf'urthaprovided that such aotionwas taken by and vith the Oonsent of the %.ate Board of Control?

**m(2)** IS you ansu%r the abwe inquiry in the af'fir~~- tiw3, would the same rule apply to Superintezxltits of our eleemosynary sohoolaand correctional schoolsuhere the inm%tQ populatlon Fa rithoutmental defects?

'(3) **Where** the Doctor-Buperintondeut of 6 mental institution@ae of the opinion that it uould benefit patIenta, could auoh Doctor-Superlnten&3nt, by and uith the oonscmtOS the Board of Control,purchasean agrioulturalorop 8%j8oent, or near euoh institutionanb hsroest such crop, with patient labor,properly supervfead b7 regular nttendauts,wkeu it was tho opition of suoh Doctor-3uperintemWmt that suoh labor rould prove of **bfmefit** to the patient?

W(4) Ii you hare anr3rere4d qtlestioll

3 in the airmatite, would the same rule apply to eleomosyuar7and oOrlWotiOn01 sohoola?

*If neither oi the above policloscan be pursuedas a mtter of law, do you kuo~ of' any lrethod

or policy that aan be Ptilizuito effect the purposesset cut In the caption of this thquLrJr

thst would **not be**  +iolatire of the la*?

## 217

**Eonorable Uewer**  **8. Baka**  **- PorpO**  **3**



### OXa riw of **the faet**  **that ~8**  **need to**  **in** mediatelybegin to take action in this matter, if suoh can be done, because of the fact that many forage crops are aw matured,~0 muld apjU'eoist0 JOPr WU’4 dtCillti0B t0 these inqrdriw,.
The prcblemrith which you are ccufroutedis quite im important one, and you are to be costineuded in seeking to work out It.8 solution.

Tour inquLry is general - that is, rith reepect to the classes of iustl.tutions aud not with r6- speot **to** auy particularinstitution- aud our auwer -1 be **eOa0nlingly** broad. / mere is lmolved in the coneiderationths gcueral **polioy** of the State rith respect to persons in her custoaJ,whether as conviatein prisons,patlentsin hospitals,or **inmates** of cw eleemosyuaryinstitutions, tith respect to the personal serricesof’ such persons. All such persons are In the custodialcare of t&O State for tho good of the rard and the generalpublic aa well. Vhere there is a specific statutewith respect to such matter, it would oi oourse control,but l.u the **abseaioe** of such statute there fs neceesaril7ImplIed,we thluk, the right of the State to the reasOzU%ble serviaes of such aards, not inconsistent uith or destructireof thiswholesome custodialcare.

In Oplnlon so. o-d727 ze advised the Texas prison Soard that ltfth

respeot to convict labor the policy of the State, as evidcmed by statuta,prohibits the use of aomiat labor for the benekit of private peraoue.

In opinion so. O-4793 addressed to you, we adTlaed that there existeduo authority to perndt inmates of the Gateerille State School for lsofe to work for tire.
In the course of that ophion we pointed out the reason tor this policy in the folioringvords:

Wne, ii not the chiei eonaorn of the law is that Jureuilescoawdtted to the Trainlug School shall be under the. imrmediate supervfsionprovided by law - that Is, of the ofiiaera ami pePsons named In the statutan.

## 218

Honorable ueaver fl. Baker - page 4.

vClWlp, if'

the inmatesvere hired out to f'6nXXs to aafdst them in ;;athoring their orops, or in other fam work, at peek thea, or otherwise,the boys would hot be **under** the imediate aupervlaionof the oonatituted authoritiesfor such period,but, **on** tht contrary, would be umder the iEPned.iatesuperviaion to aa 0Xtent of the farmer or **farmera** to whoa thay were Nred. The nerds of the **Insti tution**  are not lhattelsto be bartered,hired or loaned ior the aomenleme of the farmra or the convenieucoor profit te the Ytate. The~partLcular

work mentioned* you may veil be n hafpful one in a worthy cause, and ot no hurt to the juveniles. But, grantiug the pever, therewould be no atopplugplace. onal? recogniaad to exist, the power could be emrciaed in says most dimaging and hurtful to the asrda.v
Upon these oonsiderations your plau contemplated in Question 1 is out of bounds* Under such a plan the vat-d or imato would in legal **essence** be hired out aud under the control ct the employer,whether the ccmpenaetion be in ~oncy ur othev kiud of propfxty.

Your eccond suggcstc5plan contaLnodin &eat&on 3, hoveve2, i;oos

not fall vithin the condomnationof the pcllcy of nowhiring out above ;Uacuased. As mutter of la-v, vc see no valid objectiontr, the adoptionof such II cash au5 carry plan, vhero suoh oupplLesare such aa ore authori2Xdto be purchasedby the institutiongtnmrallp. iq this plan to purchase and harvest, or prooeaa, there is no elementof hiring: out the Btst0*santis involved. Un the **contrary,** they are et 311 tinesvitbin the aroper custodialcare of the State authorities.

WC think such a plan uay be adopted and carried out by the authorltieain controlof Our Dmutal institutioua, and likeviseour elaevmafnerp and correctiousl schoola. As a policy or practieoit is not aoudesnnad by law, thou&h,of oourse, like rtlly other lavtil policy or practioe it light be subject to abuse. It is capable af vise use, sud oould result in considereblecoonosy in these iustitutiona.

## 219

rionorable uearar ft. naker - page 6

It must at all times be rmembered that the Stata*s policy in the nziintenanoe OS such inetitutioneis not one OS proPit to the Stat0 in any respect,but rather for the beuesit of the patient or Imate, and that pereonal labor **or ser**  rice OP such patient or inmate is itself a part OS the cor**reotional** treatmeator dare, aud ordiuarilyshouldbe roluutartly perf'ormed

by the inmate. The ptWOrPlaaOe,aat~e md extent oP euclh labor fs such as reaeouablyprudent 0SSiaiale under suoh circumstances would permit, haying due regard to the welfare OS the patient or other inmates.

Iin ClOugh T. Torshaal, 74 8. w. 550, it was epwifleally held that no law or public polioy forbids the sorhing of an inmate of the state Lunatic3 Aaylpm outside the grounds of the institution,the aourt saying8

.e + 0, Appellantsinsist that whenever a person is Sound iueaue by a proper aourt, aud coaud.tted

to the asylum for restraint aud treatneat, it 16 aegligeuceper se Sor the wthoritiw in charge of such asylum to perndt suab person to leave the asylum grouuds. Ve~hate eareSullyexauduedall of the statutory protisi.o~ beariug upon the subject, but we are unable **to** agree with this contention. Xt is true that, in order to adndt a person as au imate to an iusane aeylym, the cwrt must Pltxl that he is of uusouud mind, sad that it is necoeaary that ha shoaldbe placed under reatrdat, and the judgzaent of the aourt in such case is that he be oomeyed to the luuatie asylum for restraint &xi treatment. Rer. gt. 1895, aFta. 133, lR5. But we hare Sotmd no provisionof'

law uhich requires that such person &wit be ~ouf’lncd within the walls or upon the g~%lldsl

OS such aaylym. In tU8 case it will be **noted** that the insane persons uora not unrestrainedat the time the injury 0c6urredr IS they had been permitted to leave the asylum or its groundswithout any restraint uhatever,a differout questlOB would be presentedjbut the questionhere presentedie Whether it la a violation oS legal duty to poradt such persons to lea~o the asylum premiaoe,even under restraint. ThereAs no dlreot provioionof the law to this

effeat,nor any prorisionfraa rbioh such conalooioncan be re%eonaElyinferred~and, t&Is be&n& tho ease, 8~ ~omlude that ths Legislatureonly intemied that 6uqR person0 shouldbe reqtcalned, **bnt** that the duwaoter and extent of such restraint,and whetheir euah person0 shouldat all tinesbe confinal wiWin the grouxxio of the aaplum, 

### 805 lef% to the dieoretionof the offlcialoupon 8hom the duty 

### aemmd.~

**A** 

### rrit of error to the $%lgment was 

### rsfusod, and this is dooisilre

as to ;UI

ixmanS Topd. Por tnefl stroax#~ reasons the rule is the aam in respect ta wmie or in

### 3wd8 not 80fbfrimed.

Our holding is not impelledby amy oomslderation of war a? Gth%i+aueQp3niTy uhrrteoa+*. &aC%yg~ Oan not confer officialpower where none otbervleeadate. It only affords opporbunltyto cxeroieea power already exieting.

Trusting that what re hate held thns @mrall~ if35llfPloient

to amroc your qpeetiome,86 are