HonorableThos.A. IMat

CountyAttorney Liberty County Liberty,Texas

Dear Sirr OpinionNo. O-1796 Rer Must a,~~rsonwho is ohalrged with being insane be present inthe court during the lunacy hearing?

Your request for an opinion.on the above st+ted questionhas 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 ornot 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 institutedby the state primarilyfor the purpose of dotsmining the question as to whether an alleged lunatic shouldbe oonfinedbsoausa of his danger to, and the safety of, soaiety. This proceeding is wholly statutory. The **court** trying the casshas only such authorityas expressly given or clearly implied by the statutes,and the alleged inq,pnpstent has the right to insist on a strict complianoewith every form prqscribed for his protsotion.

The proosdure foradjudgingone not chargedwith crime to be a person of unsoundmind and providing for his restraint is solely through the county aourts:and although the state is a party to such an inqa:.ry,, the characterof the proceeding is essentially civil. See Tex. Juris. Vol. 24, p. 388.HonorableThos. A. Wheat, page 2 (O-1795)

House RillNo. 249, Chapter 174, Acts of the 39th bgislatura, 1925, whiah is brought forward inVernon's Annotated Civil Statutes as Artiolss 3190 to 3193-o. inclusive,was an aot providing for the care, restraint, diagnosis,and treatment of personswho are insane,mentally
or or mentally defective;providing for regulatingand for the operation of public institutionsand hospitals for such persons8providing for the neoessary officers, agents, agencies and employees for suoh purpose and to administer and enforce the laws rmlrting to such personstproviding for sustenanceandmaintenance; providing for edurstionand research relating to,such parson2 providing for psychopathicresearch relatingto such persons providing for the adiudinationo foot, the oommitmentand restrainin 2 finsanity or mental sickness or depersons 60 afflicted;prescribing rules and regulationsani defining offenses in conneotionwiththe'care and treatment of such person: providing the necessary funds and fixing necessary salaries to carry out the purposes ?f the act: repealingprovisions of the Revised Civil Statutes and ~11 other laws in confliottherewith; and declaring an emergency.

Senate BillNo. 259, Chapter 446, Acts of the 45th Legislature, 1937,was an act providing for a unifonamethod for trial of persons of unsoundmind and defining the status of oontractswhich suchpersonmight have entered'priorto court judgment of inoompstenoyand providing for the apprehension,arrest, end trial of persons not chargedwith criminal offense, alleged to be of unsound mind by filing an informationunder oath before a county judge or justioe of the peace and the issuanoeof 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 summoningof the jury to hear and determine the issues to bs subnitked in said OIUW; providing for a procedure for determining and adjudicatingthe restoration to soundmind; providing for the protection of those dealingwith persons of unsoundmind 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 furtherproviding that the act shall be ounulativeof 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 certainpersons to be of unsoundmind, and deolaring an omerg-w. This act is brought forwurd inVernon'sAnnotated Civil Statutes
as Article 5561a. This statute supsrqdesthe statutesbrought 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 adjudicafionof 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 chargedwithHon. Thos.A. Weat - Page 3 (O-1796)

a criminal offense, is a person of unsoundmind, and that the welfare of either suchperson or any other person or perscats

requires that he be placed under restraint, and such county judge shall believe suah informationto be true, he shall forthwith issue a warrant for the apprehension of suoh person, or, if such like informationbe given to any justice d the peace in such county, said justicemay issue awarrant for the apprehension of said parson,making said c-plaint and warrant returnableto 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 shallbe either at the courthouse of the oounty or at the residence of the person named, or at any other place in the county,as the county judgemay de= best for suchhearing. Notice of the time, place and purpose of suchhearing shallbe servedupon 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 'TheState 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 saidwarrant before the oounty judge for examination and trial.'
Section 2 of Article 5561a, supra, specificallyprovides that the warrant provided for in the statute shall run in the name of the State of Texas, and shallbe 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 beforethe county judge for examinationand trial. Therefore,you are respectfullyadvised that it is the opinion of this department that a defendant in a lunaoy proceedingmust be present and before the court during the lunacy prooaeding.

Trusting that the foregoing fully answers your inquily,we remain

Yoursvery truly

AFPROVED JAN 12 1940 a/ W/P/boom FIRSTASSISTUT ATTORNXY GENERAL ATTOBNFX GENERAL OF TEXAS BY s/ Ardallppilliams

Ardell Williams

Assistant