Honorable Jess M. Irwin, Jr. Opinion NO.C-560

Executive Director of Texas Department of Mental Health Re: Whetherthe head of a andMental Retardation state mental hospital may Austin, Texas continue to transfer, furlough anddischarge after January 1, 1966, apatient committed to the hospital under the provisions of Article 932b of the Code DearMx+.Irwin: of Criminal Prooedure.

In arecent opinion request of this office you request our opinion andadvice as to the following questions:

(1) Maythe head of a state mental hospital continue to transfer, furlough anddischarge, after January 1, 1966, patlente committed to said hospital under the provisions of Article 932b, Vernon!8 Codeof Criminal Procedure. '(2) In the event that the head of a state mental hospital maynot, after January 1, 1966, lawfully transfer, furlough, and/or discharge aperson,committed to his hospital under Artlcle 932b, then mustthe head of said hospital release such person according to the provisions of Article 46.02, Vernon's Codeof Criminal Procedure, 1, 1966.1966, which becomes effective January

(3) If neither Article 932b, nor Article 46.02, prescribe the mannerbywhich the head of a state mental hospital is to release a person committed to said hospital in accordance with the p~vlslons of Article 932b, prior to January 1, 1966, then maythe head of said state mental hospital, after January 1, 1966, transfer, furlough and/or discharge such person under the procedures outlined by

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the pertinent provisions of the Texas Mental Health Code, codified as Articles 5547-l through 5547-104, Vernon's Civil Statutes. OnJanuary 1, 1966, the Codeof .Crlminal'Procedure of Texa6, 1966, Acts 1965, 59th Legislature, Chapter 722, becomes effective. Article 54.02 ~ofsaid Code,repeals old Artlcle 932b, which,is effective until that date. Section 2of Article 932bprovides as follows:

"Aperson committed to aState mental hospital under this Act uponajury finding of Insanity at the time of trial whohasbeen acquitted of the alleged offense is not byreason of that offense aperson charged with a crlmlnal offense, andtherefore the head of ,the mental hospital to which heis committed may transfer, furlough anddischarge him.and shall treat himas anyother patient aommltted for an.Indefinite period." Ashas been previously stated, said Article 932b, as of January 1, 1966, will be replaced by Article 46.02. Section 3of said Article 46.02 provides as follows:

"Aperson committed to a State mental hospital under this Article uponajury finding of Insanity at the time of trial whohas been acquitted' of the alleged offense Is not by reason of that offense aperson charged with a criminal offense. In the event the head of the mental hospital to which heIs committed Is of the opinion that the person Is sane, he shall so notify the court which committed the person to the State mental hospital. Uponreceiving such notice, the judge of the committing court shall lmpanel ajury to determine whether the person is sane or Insane. If the jury finds the person Is sane, he shall be released. If the jury finds the person is insane, thenCourt shall order his return to the State mental hospital until he~is so adjudged to be sane at asubsequent jury trial in such committing county. Weanswer your first question in the negative. Since Article 932b, supra, presently Is the authority for adirector

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of astate mental hospital to transfer, furlough, and/or dlscharge apatletit, its repeal as of January 1, 1966, will extinguish such authority. Aaof that date, the director will have noauthority to transfer, furlough, and/or discharge a patient. Weanswer your secofid quo&ion in the affirmative. As of January 1, 1966, the head of aatate mental hospital must follow the procedure outlined in Article 46.02, with regard to the discharge of all persons admitted to said hospital ~;r;g gder the procedure outlined in Article 932b, or ArtlIt is apparent, of course, that there will be some person; admitted to said hospitals under 932b, supra, andwho remain in said hospital until after January 1, 1966, andthat Article 46.02, supra, wasnot even in existence at the time of their adm%ssion. It is our opinion, however, that such persona1 rights would not be violated in anyirayby their having to comply with Article 46.02 in order to obtain their rlease from said hospital. The change brought about byArtlcle 46.02 is procedural only, andsaid person8 whowere admitted to the hospital under 932b, supra, would not be deprived of any eubstantlal rights by their having to follow the pro-. cedure outllned in 46.02. Sinclair v. State, 261 S.W.2d 167 (Tex.Crlm.?1952), cert .den. 1~3,~ Noone has avested right in particular remedies or modes of procedure. Mrousv. State, 21 S.W. 764 (Tex.Crlm:.1893); Jameav. State, 163 SW bl \T Crlm. 1914). Also, Lhangeain remedies maybemade*&allabl~ . to trials for offense8 committed before the lawmakingthe change takes effeot,and to all proceedings pendlng at the time of their enactment. Barnett.v. State, 63S.W. 765 (Tex. Crlm. 1900);. Odenthall v. State, 2yo S.W. 743 (Tex.Crim. 1926).

Also, attention is invited to Artlcle’1.02 of the new Codeof Criminal Procedure, which 1s as follows:

“This code shall’.take effect andbe In fotie on andafter January 1, 1966. The procedure herein prsscrlb8d shall govern all criminal proceedings lnatituted after the effective date of this Act-and all proceedings pending upon the effective date hereof Insofar as are applicable.” In addition to the authorltlea cited above, it is our opinion that Article 1.02-would require that the procedure outlined In 46.02 be followed with regard to persons admitted to ’, state mental hospitals under.Article 932b, prior to January 1, 1966.

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ber must In view of the fact that wehave answered question numtwo (2) In the affirmative, stating that Article 46.02 be followed with regard to persons admitted to state mental hospital under 932b, the third question posed byyour oplnion request becomes immaterial. Article 46.02, rather than the Texas Mental Health Code, should be followed with regard to disposition of persons admitted to state mental hospitals under Article 932b, supra. SUMMARY

After January 1, 1966, the head of astate mental hospital maynot continue to transfer, furlough, and/or discharge patients committed to the hospital under the provisions of'Article 932b. Article ,46.02, supra, should be followed with regard to the disposition of such patients. Yours very truly, WAGGONER

CARR Attorney General of Texas

orney General SLK/lh/br APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Charles B. Swanner TomRoutt W.0. Shultz Scott Garrison APPROVED

FORTHEATTORNEY

GENERAL B9: T. B. Wright

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