Hon. Fred Norris 

County Auditor 

Polk County Opinion No. O-2297 

Livingston, Texas Re: Procedure for restoration 

Dear Sir: 

of sanity. 

We have your letter of April 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 judge may conduct such hearing without 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 article was enacted 

by the 45th Leg., Acts 1937, p. 1049, ch. 446, and reads 

as follows: 

"RESTORATION OF SANITY; PROCEDIJRE; EFFECT OF 

FINDINGS; COSTS 

Sec. 4. Upon the filing in the county court in 

which a person was convicted or in the count 

court of the county in which a person Is located 

at the time he is alleged to have had his right 

mind restored, information in writing and under 

oath made by a physician legally licensed to 

practice medicine in Texas, that a person not 

charged with 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 person brought before him by the sheriff of 

the county and if said issue be in doubt said 

judge shall cause a jury to be summoned and impaneled in the same manner 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 judge may try the same without 

the intervention of a jury, and if said person 

shall be found to be of sound mind, a judgment 

shall be entered upon the minutes of said court 
Hon. 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 shall be found 

to be still of unsound mind, he shall be 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 shall be paid by the county." 

We call your attention to that part of the above 

quoted statute which reads 'or If there appears no doubt 

as to~said issue, said Judge may try the same,wi.thout 

intervention of ,a jury:* The.statute ,purports to leave 

the determination of whether or not a jury shall'be called 

In such case within the discretion of the county judge. 

.- . A sanity trial, whether it be to declare a person 

Insane in the first instance or to rest&e sanity to one 

keviouslg declared,lnsane is unquestionably a 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 to be determined by a 

commission of SIX physicians! to be appointed by the county 

judges was unconstitutional-in that it deprlved'the defendant 

of his right of trial by jury as guaranteed by 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 judge may try the issue of restoration 

of sanity without a jury only if a jury hasbeen expressly 

waived by the person being 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