Hon. 0. B. Ellis 

### General Manager Texas Prison System Huntsville, Texas

Dear Sir:. 

### AUSTIN. TEXAS

December 15, 1949 Opinion No. V-968 Be: Procedure for discharging inmates of the Texas Prison System who have been declared insane and now apt pear sane. Your recent letter to this office reads, in part, as follows: yWe desire the opinion ofyour department as to procedure in discharging inmates of the Texas Prison System who have been declared insane and now appear sane.- From your letter it appears that the inmates to whom this question relates were adjudged insane after they had entered prison but before the expiration oftheir respective sentences. Article 928, Vernon’s Code Criminal Procedure, which deals with insanity after conviction, provides:

“If the defendant becomes sane, he shall be brought before the court inwhich he was convicted or before the District Court inthe County inwhich the defendant is located at the time he is alleged to have become sane; and, ajury shall be impaneled in the Court before which such defendant is brought to try the issue of his sanity; and, ifhe is found to be sane, the conviction shall be enforced against him as ifthe proceedings had never been suspended.” Article 929, Vernon’s Code Criminal Procedure, autborizes the superintendent ofthe asylum inwhich the prisoner is an inmate to initiate restoration of sanity proceedings by presenting to the court awritten certificate as to the inmate’s sanity.Hon. 0. B. Ellis, Page 2 (Opinion V-968)

Inview of Article 928 and 929, Vernon’s Code Criminal Procedure, we conclude that the superintendent ofthe asylum inwhich the convict is an inmate is authorized to present awritten certificate as to the sanity of a convict-inmate to the District Court in the county where the asylum is located or to the court inwhich the inmate was c.onvicted ofthe crime for which he has been imprisoned, and thereupon the issue of the inmate’s sanity shall be tried.

Ifthe convict-inmate is adjudged sane, he should be removed from the asylum and reconfined inthe penitentiary proper for the expiration ofhis sentence. This is the view taken inAttorney General’s Opinion No. O-5721, by a former administration, which has been cited with approval inAttorney General’s Opinion No. V-498.

Attorney General’s Opinion No. O-5721 holds: “We are ofthe opinion that the foregoing discussion discloses a legislative policy in Texas ofnot subjecting insane persons to criminal punishment, and that the time spent by an insane in a state hospital should not be counted on his sentence as a criminal.” SUMMARY The procedure for the discharge of an inmate of the Texas Prison System who has been adjudged insane but now appears sane is for the superintendent of the asylum inwhich the convict is an inmate to present awritten certificate as to the sanity of the

. prisoner to the District Court in the county where the asylum is located or to the court inwhich the inmate was convicted ofthe crime for which he has been imprisoned, and ifupon trial, the prisoner is adjudged sane, he should be removed from the asylum and reconfined inthe penitentiary proper for the expiration ofhis sentence. Yours very truly, APPROVED: ATTORNEY GENERALOFTEXAS .-.

PTP:v