# THEA ORNEY GENERAL OF?B-ExAS '
AUSTIN 1% TEXAS WILL WILSON July 10, 

## 1961

Honorable Robert Galloway DistrictAttorney 84th Judicial District Borger, Texas OpinionNo. WW-1088
Re: Whether a person who has been convicted for a felony, and while his appeal is pending and being confined in the County Jail becomes mentally ill,may be transferred to a

Dear Mr. Galloway: State mental hospitalby viture of Article 932-1, Sec. 12 of the Code of Criminal.Procedure.
Your request for an opinion of this office concernsthe following state of facts.

The defendantwas convictedof a felony (rape),and was sentenced to not less than five nor more than ninety-nineyears. The defendanthas appealed and the appeal is now pending before the Court of CriminalAppeals. The defendanthas become mentally ill, but the best available evidence indicatesthat he is not legally insane in the sense of knowing right from wrong. The problem is whether, under this state of facts, the defendant can be transferredto a mental hospital. Article 932b, Section

## 3,C.C.P., statesas follows:

"If the question of the sanity of the defendant is raised after his convictionand prior to the pronouncement of-sentence in a felony case or while an appeal from that conviction is pending, and sufficientproofs is shown to satisfy the judge of the convicting court that a reasonabledoubt exists as to the sanity of the defendant,the judge shall impanela jury to determine whether the defendant is sane or insane. If the jury finds the defendant is insane,the court shall enter an order committingthe defendantto a State mental hospital and placing him in the custody of the sheriff for transportationto a State mental hospital to be confined therein as a person chargedwith a criminal offense until he becomes sane. If the jury finds the defendant is sane,the proceedings in the case against him shall continue."

the court In the case of Ex p&e Hodges, 314 S.W.2d 581 (Tex.Crim. 1958),

per Woodley J. said:-. .

Hon. Robert Galloway,Page 2 

### (WW-1088)

"It iswell settledthat an accusedmay be mentally ill~or of unsound mind and yet be legally sane. The testis not whether he is of unsound mind or mentally ill,but whether he is rendered incompetentto make a rational defense thereby, and whether he is laboring under such defect of reason from disease of the mind as not to know the nature or quality of his otherwise criminal act, or if he does know, is unable to distinguish between right and wrong as to such act." We feel that the above language indicatesthat Article 932b, C.C.P., has no applicationto the present state of facts. Section 12 (a) ofArticle 932-l C.C.P. reads as follows:

"The county judgemav transfer a prisonerwho is

--- _ servinga sehtence in a county jail to a State mental hospital if the county health officer certifiesthat the prisoner is mentally ill and would benefit from treatment in a mental hospital and if the judge is advised by the head of a State mental hospital that facilitiesare available for treatment of the prisoner." (Emphasisadded.) The questionpresentedby this request is, whether the defendant is serv1ng.a sentence in the county jailwithin the meaning of this section when he is in custody of the sheriffpending the outcome of his appeal to the Court of CriminalAppeals?

The term "sentence" is properly applied only in felony cases since one is not,sentenced formally in a misdemeanor case, Ex parte Hayden, 215 S.W.2d 

### 620 (Tex.Crim. 

### 1948);~ Attorney General'sOpinion

### V-415. The Legislaturehas used the term "sentence" in Section 12 (a) of Article 932Ll. If taken literally,the sectionwould lead to an absurd result, since it is impossibleto servea "sentence" in a county jail. We are left to concludetherefore that the legislative intentmust here refer to any confinement in a county jailwhich is a result of a criminal charge. It follows that this defendant is servinga sentence in the county jail within the meaning ofArticle 932-1, C.C.P. SUMMARY "A personwho has been convicted of a felony, and while his appeal is pending and being confined in the County Jail becomes mentally ill,may be transferred to a State mental hospitalby virtue ofArticle 932-1, Section 2 of the Code of CriminalProcedure.Hon. Robert Galloway,Page 

### 3 (ww-1088)

Very truly yours, WILL WILSON Attorney@neral of Texas

Assistant Attorney General JEL/br APPROVED: OPINIO~~~OMMITTEE W. V. Geppert,~Chairman Harris'Toler Virgil Pulliam GilbertHargrave &V--FOR THEATPORNEY GENERAL By: Morgan Nesbitt