Hon. FredNorris

County Auditor Polk County Opinion No. O-2297 Livingston, Texas Re: Procedurefor restoration

Dear Sir: of sanity.

We have your letter ofApril 26, 1940, requesting our opinion on the question as to whether It Is necessary to convene a jury to hear evidence and render a verdict on a trial for restoration of sanity or whether the county judgemay conduct such hearingwithout a jury.

The proceflure

for restoration of sanity is provided for by Article 5561a, Section 4, Vernon's Annotated Revised Civil Statutes of Texas, which articlewas enacted by the 45th Leg., Acts 1937, p. 1049, ch. 446, and reads
as follows:

"RESTORATIONOF SANITY; PROCEDIJRE; EFFECT OF FINDINGS; COSTS Sec. 4. Upon the filing in the county court in which a personwas convicted or in the count court of the county in which a person Is located at the timehe is alleged to have had his right mind restored, information in writing and under oathmade by a physician legally licensed to practicemedicine in Texas, that a personnot chargedwith a criminal offense,who has been adjudged to be of unsound mind, has been restored to his right mind, the judge of said court shall forthwith, either in term time ore vacation, order said personbroughtbefore him by the sheriff of the county and if said issue be in doubt said judge shall cause a jury to be summonedand impaneled in the samemanner as ia provided for in Sec. 3 hereof and shall proceed to the trial of said issue, or if there appears no doubt as to said issue, said judgemay try the samewithout the intervention of a jury, and if said person shall be found to be of soundmind, a judgment shallbe entered upon the minutes of said courtHon. Fred Harris, Page 2

reciting and adjudging such fact and said~ person shall, If then under restraint,be immediately discharged, or in the event-he shallbe found to be still of unsoundmind, he shallbe returned by the county court to the place of restraint from which he had been previously ordered, and the ori,ginal

order of.commitment shall continue in full force and effect. All costs of proceedings of restoration shallbe paidby the county."

We callyour attention to that part of the above quoted statutewhich reads 'or If there appears no doubt
as to~said issue, said Judgemay try the same,wi.thout intervention of ,ajury:* The.statute,purportsto leave the determination of whether or not a jury shall'be called In such casewithin the discretion of the county judge.

.- . A sanity trial,whether itbe to declare a person

Insane in the first instance or to rest&e sanity to one keviouslg declared,lnsaneis unquestionablya proceeding Involving the liberty of that person. The Supreme Court of Texas ins

White v.White, 

### 196 SW 

### 508,held that a statute providing for the issue of sanity tobe determinedby a commission of SIX physicians! tobe appointedby the county judges was unconstitutional-inthat it deprlved'thedefendant of his right of trialby juryas guaranteedby Sections 15, lg and.29 of Article1 of the Texas Constitution.

. Under the authority of the White case,we are, compelled to construe the above quoted statute to mean, that the county judgemay try the issue of restoration of sanity without a jury only if a juryhasbeen expressly waived by the personbeing tried.

Youks very truly

APPROVND MAY 20, 1940 ATTORNRY GDUERAL OF THXAS

s/ GERALD C. MANN By (Signed)' WALTER R. KOCH Assistant ATTORNEYGENERAL OF TEXAS'

EEAW Approved Opinion Committee By RWF, Chairman