Honorable Thos. A. IMat 

County Attorney 

Liberty County 

Liberty, Texas 

Dear Sirr Opinion No. O-1796 

Rer Must a,~~rson who is ohalrged with 

being insane be present inthe 

court during the lunacy hearing? 

Your request for an opinion.on the above st+ted question has been 

reoeived by this department. 

Your letter reads in part a6 follows: 

"The County Clerk of Liberty County, Texas, has submitted to me the question aa to whether or not a arson who 

is alleged to be insane, who is~in an insane hospital in the 

City of Galveston, Texas, can be tried in a lunaoy prooeeding in the County Court of Liberty County, Texas, in the ab8enoe of the accused or rather the person ohargad to be insane. 

1, . . ." 

A lunacy inquisition is a proceeding instituted by the state 

primarily for the purpose of dotsmining the question as to whether an 

alleged lunatic should be oonfined bsoausa of his danger to, and the 

safety of, soaiety. This proceeding is wholly statutory. The court trying the cass has only such authority as expressly given or clearly implied 

by the statutes, and the alleged inq,pnpstent has the right to insist on a 

strict complianoe with every form prqscribed for his protsotion. 

The proosdure foradjudgingone not charged with crime to be a 

person of unsound mind and providing for his restraint is solely through 

the county aourts: and although the state is a party to such an inqa:.ry,, 

the character of the proceeding is essentially civil. See Tex. Juris. 

Vol. 24, p. 388. 
Honorable Thos. A. Wheat, page 2 (O-1795) 

House Rill No. 249, Chapter 174, Acts of the 39th bgislatura, 1925, whiah is brought forward in Vernon's Annotated Civil Statutes 

as Artiolss 3190 to 3193-o. inclusive, was an aot providing for the care, 

restraint, diagnosis, and treatment of persons who are insane, mentally 

or or mentally defective; providing for regulating and for the operation 

of public institutions and hospitals for such persons8 providing for the 

neoessary officers, agents, agencies and employees for suoh purpose and 

to administer and enforce the laws rmlrting to such personst providing for 

sustenance and maintenance; providing for edurstion and research relating 

to,such parson2 providing for psychopathic research relating to such persons providing for the adiudination o 

foot, the oommitmentand restrainin 2 

finsanity or mental sickness or depersons 60 afflicted; prescribing 

rules and regulations ani defining offenses in conneotion withthe'care 

and treatment of such person: providing the necessary funds and fixing 

necessary salaries to carry out the purposes ?f the act: repealing provisions of the Revised Civil Statutes and ~11 other laws in confliot therewith; and declaring an emergency. 

Senate Bill No. 259, Chapter 446, Acts of the 45th Legislature, 

1937, was an act providing for a unifona method for trial of persons of unsound mind and defining the status of oontracts which such person might 

have entered'prior to court judgment of inoompstenoy and providing for the 

apprehension, arrest, end trial of persons not charged with criminal offense, alleged to be of unsound mind by filing an information under oath 

before a county judge or justioe of the peace and the issuanoe of the warrant of arrest thereon and return thereof to the county judge: providing 

for the setting of the time and place for the hearing of said oomplaint 

and for notioe thereof to such persons$ providing for the summoning of the 

jury to hear and determine the issues to bs subnitked in said OIUW; providing for a procedure for determining and adjudicating the restoration 

to sound mind; providing for the protection of those dealing with persons 

of unsound mind who have not been so adjudicated; providing that this act 

shall not affect any court action or proceeding and that if any seotion, 

clause, or provision of thisaot shall be declared to be invalid, suoh 

holding shall not affect any other seotion, clause or provision thereof3 

and further providing that the act shall be ounulative of Articles 5550 to 

5561, both articles inolusive, of the 1925 Revised Civil Statutes of Texas; 

violating proceedings, orders, and judgments of county or probate courts 

adjudicating certain persons to be of unsound mind, and deolaring an omerg-w. This act is brought forwurd in Vernon's Annotated Civil Statutes 

as Article 5561a. This statute supsrqdesthe statutes brought forth in 

Chapter 174, Acts of the 39th Legislature, supra, providing for the adjudication of insanity or mental sickness or defeats end now must be followed in oases for the adjudicafion of insanity. 

Sections 1 and 2 of Article 5561a, Vernon's Civil Statutes, 

reads as followsr 

"Seotion 1. If information in writing under oath be given 

to my county judge that any person in his county, not charged with 
Hon. Thos. A. Weat - Page 3 (O-1796) 

a criminal offense, is a person of unsound mind, and that 

the welfare of either such person or any other person or 

perscats requires that he be placed under restraint, and such 

county judge shall believe suah information to be true, he 

shall forthwith issue a warrant for the apprehension of suoh 

person, or, if such like information be given to any justice 

d the peace in such county, said justice may issue awarrant 

for the apprehension of said parson, making said c-plaint and 

warrant returnable to the oounty oourt of said county, and said 

oounty judge in either event shall fix a time and plaoe for the 

hearing and determination of the matter, either in term time or 

in vacation, whiah place shall be either at the court house of 

the oounty or at the residence of the person named, or at any 

other place in the county, as the county judge may de= best 

for such hearing. Notice of the time, place and purpose of 

such hearing shall be served upon the person oharged, such 

notice to be under the hand and seal of the clerk of said 

county, and sex-red and returned by the sheriff, and the return to state the time and place of service. Such notice shall 

ba semed not less than three days prior to the day of the 

hearing. 

"Sea. 2. The warrant provided for herein shall run in the 

name of 'The State of Texas, ( and shall be directed to the sheriff or any constable of the county, and the offioer receiving 

same shall forthwith take into custody the person named therein, 

and at the designated time and plaoe shall have him and the return of said warrant before the oounty judge for examination and 

trial.' 

Section 2 of Article 5561a, supra, specifically provides that the 

warrant provided for in the statute shall run in the name of the State of 

Texas, and shall be directed to the sheriff or any constable of the county, 

aad the officer receiving the same shall forthwith take into custody the person named therein, and at the designated time and place shall have him and the 

return of said lrarrant before the county judge for examination and trial. 

Therefore, you are respectfully advised that it is the opinion of this department that a defendant in a lunaoy proceeding must be present and before the 

court during the lunacy prooaeding. 

Trusting that the foregoing fully answers your inquily, we remain 

Yours very truly 

AFPROVED JAN 12 1940 

a/ W/P/boom 

FIRST ASSISTUT 

ATTORNXY GENERAL 

ATTOBNFX GENERAL OF TEXAS 

BY 

s/ Ardall ppilliams 

Ardell Williams 

Assistant