THE ATTORNEY GENERAL 

OF%%XAS' 

The Honorable Kenneth D. Gaver Opinion No. H-779 

Commisrioner 

Texas Department of Mental Health Re: Commitment and 

and Mental Retardation detention of defendants 

P. 0. Box 12668, Capitol Station 

Austin, Texar 70711 

found to be incompetent 

to stand trial or not 

guilty by reason of 

insanity. 

Dear Doctor Gaver: 

You have repueeted our opinion regarding the applicability of rev.i,eed article 46.02, Texas Code of Criminal 

Procedure, to those pereona committed under its former 

provisions. 

Article 46.02 ertabliehes a procedure by which persons 

who have been determined incompetent to stand trial are 

committed to a mental health facility for a period not to 

exceed twelve montha. Whenever the head of the facility 

believes that a committed defendant ha8 attained competency 

to stand trial, or believer that there is no eubstantial 

probability that the defendant will attain euch competency 

within the foreseeable future, or, in the alternative, after 

the defendant haa been committed for a period of twelve 

montha, 

to civil 

the defendant may be tried, released, or subjected 

commitment proceedings , whichever is appropriate. 

Unlike the procedure under the old statute, the defendant is 

not subject to repeated orders of temporary commitment. 

Sec. 5(h). Furthermore, the court no longer has the authority 

to confine a defendant for longer than one year under the 

temporary conunitment procedure. Sec. 5(e). you first ask 

when the twelve month period provided in section 5 of article 

46.62 begin6 to run with respect to a person who, pursuant 

to the former statute, had been found insane at the time of 

trial and ha& been committed to a mental health facility 

prior to June 19, 1975, the effective date of the revised 

statute. 

p. 3209 
The Honorable Kenneth D. Gaver - page 2 (H-779) 

Initially, we observe that revised article 46.02 may be 

characterized as remedial legislation, and, as such, not 

subject to the constitutional inhibition against the passage 

of retroactive laws. Holt v. Wheeler, 301 S.W.Zd 678, 680 

(Tex.Civ.App. -- Galv~n~9~t dism'd) . A remedial 

law is one which is 

designed to correct an existing law, 

redress an existing grievance, or 

introduce regulations conducive to 

the public g00a. 

The term may also be used to describe 

those statutes or amendments which 

apply to procedural matters rather than 

to-substantive rights. Rookled e v. 

Garwood, 65 N.W.28 795, 7d."T954). 

See 73 Am.Jur.2d Statutes 9 11. In our opinion, the revision 

rarticle 46.02 may be fairly deemed to be remedial in 

nature. Its only effect is to limit the period of a defendant's temporary oommitment and to establish procedures for 

further disposition. It corrects procedures which the' 

Legislature apparently regarded as defective, but it does 

not affect any person's substantive rights. 

Revised article 46.02 completely replaced its predecessor. Acts 1975, 64th Leg., ch. 415, p. 1095. Since 

there is no constitutional bar to the retroactive application of revised article 46.02, and since the revised statute 

was the only one in effect after June 19, 1975, we conclude 

that persons already committed at the time the statute 

became effective were, after such date, being held pursuant 

to the terms of the revised statute. As a result, the 

twelve month period must be deemed to have begun to run on 

the date such persons were actually committod. Likewise, 

since the revised statute is fully applicable to persons 

already committed on June 19, 1975, we believe that the 

prohibition of section 5(h) of article 46.02 prevents the 

recommitment of such persons under a temporary commitment 

procedure. 

p. 3290 
The Honorable Kenneth D. Gaver - page 3 (M-779) 

SUMMARY 

The twelve month period provided for in 

section 5 of article 46.02, Texas Code 

of Criminal Procedure, began to run, as to 

all persons committed prior to the effective date of the revised statute, on the 

date such persons were actually committed. 

A court is now prohibited by section 5(h) 

from temporarily recommitting any person, 

regardless of when such person was initially 

committed. 

truly yours, 

Attorney General of Texas 

APPROVED: 

Opinion Committee 

jwb 

p. 3291