THEA ORNEY GENERAL 

OF?B-ExAS ' 

AUSTIN 1% TEXAS 

WILL WILSON 

July 10, 1961 

Honorable Robert Galloway 

District Attorney 

84th Judicial District 

Borger, Texas 

Opinion No. 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 hospital by viture 

of Article 932-1, Sec. 12 of 

the Code of Criminal.Procedure. 

Your request for an opinion of this office concerns the following state of facts. 

The defendant was convicted of a felony (rape), and was sentenced to not less than five nor more than ninety-nine years. The defendant has appealed and the appeal is now pending before the Court of 

Criminal Appeals. The defendant has become mentally ill, but the best 

available evidence indicates that 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 transferred to a mental hospital. Article 

932b, Section 3, C.C.P., states as follows: 

"If the question of the sanity of the defendant is 

raised after his conviction and prior to the pronouncement of-sentence in a felony case or while an appeal 

from that conviction is pending, and sufficient proofs 

is shown to satisfy the judge of the convicting court 

that a reasonable doubt exists as to the sanity of the 

defendant, the judge shall impanel a jury to determine 

whether the defendant is sane or insane. If the jury 

finds the defendant is insane, the court shall enter 

an order committing the defendant to a State mental 

hospital and placing him in the custody of the sheriff 

for transportation to a State mental hospital to be confined therein as a person charged with 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 is well settled that an accused may 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 incompetent to 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 indicates that Article 932b, 

C.C.P., has no application to the present state of facts. Section 12 

(a) of Article 932-l C.C.P. reads as follows: 

"The county --- judge mav _ transfer a prisoner who is 

serving a sehtence in a county jail to a State mental 

hospital if the county health officer certifies that 

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 

facilities are available for treatment of the prisoner." 

(Emphasis added.) 

The question presented by this request is, whether the defendant 

is serv1ng.a sentence in the county jail within the meaning of this section 

when he is in custody of the sheriff pending the outcome of his appeal to 

the Court of Criminal Appeals? 

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's Opinion V-415. 

The Legislature has used the term "sentence" in Section 12 (a) 

of Article 932Ll. If taken literally, the section would lead to an absurd 

result, since it is impossible to serve a "sentence" in a county jail. 

We are left to conclude therefore that the legislative intent must here 

refer to any confinement in a county jail which is a result of a criminal 

charge. It follows that this defendant is serving a sentence in the 

county jail within the meaning of Article 932-1, C.C.P. 

SUMMARY 

"A person who 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 hospital by virtue of Article 932-1, 

Section 2 of the Code of Criminal Procedure. 
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 

Gilbert Hargrave 

&V--FOR THEATPORNEY GENERAL 

By: Morgan Nesbitt