Mr. John H. Winters

Commissioner Department of PublicWelfare

. - Opinion No.

### w-796
Re: &uestions Toncerning tne legal determination of restoration of recipients of public assistance, who have been judicially declaredto be of unsound mind or mentally incompetent, under provisions of the Texas Mental Health Code. AUStln, WXaS

Dear Mr. Winters:

You have requested an opinion of this office relative to the effect of a dischargefrom a mental hospital of a patient who has been theretofore adjudicatedby a court to be mentally incompetent. The questions call for an interpretation of certainprovisions of the Texas Mental Health Code (HouseBill No. 

### 6, Acts of the 55th Legislature,Regular Session, 19 

### 7, 2 Chapter 243, page 

### 505,Codifiedas Articles 

### 5547-lthrough 

### 55 7-104ofVernon's Annotated Civil Statutes,which became effective January 1, 

### 1958).

Specifically,you asked the following questions: "1. If the person was adjudged to be of unsound mind or mentally incompetentby a court prior to the effective date of House Bill No. 

### 6, Acts of the 55th Legislature, Regular Session, 1957 (January 1, 

### 1958) and was discharged from the statehospitalprior to that date, is the certificatefrom the superintendentof the statehospital sufficient to restore the civil rights of that individual so that he may receive, endorse, and expend his ptlblic assistance checkwithout a guardian or without a judicial determination of his restoration? 

### 'k2.If the person was adjudged to be of unsound mind or mentally incompetentby0

. . _. 1’ 4 : ‘

.

: ;

Mr.. John R. Winters,. page 2 

### (w-796) I

‘

. a court prior to the effective date of,Douec Bill No. 

### 6 and was discharged by the”atate ’ hospital aftef the effective date of Houee Bill No. 

### 6,ia the certificate from the auperintendent of the atate hospital aufflclent to .I. .,, restore the civil rights of that lndlvldual 80

that he mayreceive, endorse, and expend his public assistance check wibhout a guardian or without a judicial detertiinatlon of his

., restoration?

.. 

### “3. If a person wae adjudged, to be

‘mentally Incompetent’ by a court after the

. effective’ date of House Bill No. 

### 6 and was discharged from the &ate hospital, after that date, 18 the certificate from the su- .perlntendent of the-‘&ate hoepital eufflclent to restore the civil rights’of,that indlvldual BOthat he mayreceive, endorse’; an&expend his public aeslstance check without a guardian or wlthouta Judicial determlnatlon of his restoration?” You inform u8 in your opinion request that it ha8 been the policy of the Department of Public Welfare to require, with respect to all three classes of persons above ~mentloned, either .~the appointment of a guardian for the incompetent, or an order

‘.*of restoration from the court, as a prerequlslte to the making of pub+ assietance payments. It Is obeerved,that the Department adopted such bplicy merely In pursuance of ite general duty and authority to administer program7 of public aealatance effec- j tively and in accordance with the~,purpoeee of the respective enabling statutes, purposes which would douhtleee be thwarted in case of a recipient whowa0, for Bornereason, incapable of ‘,

,. receiving and disposing of hla, aeaiatance check in a reasonable and responsible-manner. Since such policy.apparently doea not stem from an express prohibition, Federal or State, against making payments of public assistance funds to pereone deemed to be incompetent, the following ~opinion is oonfined to the legal effect of a discharge~of a pereon,from a mental hospital, under the Texas Mental Health, Code. ‘~

Your questions deal with two eubjects: .the appointment of guardians for incompetents, and the reetorationot the civil righta of incompetents. Flrst,~we will,briefly dispose of the question insofar a8 it, relates to the appointment of guardians.Mr. John H. Winters, Page 3 (Ww-7%)

Neither the adjudication, commitment to a statehospital, nor a discharge therefrom,under and',by virtue of any provision of the Texas Mental Health Code, has any effect upon the appointment of a guardian. Guardianshipmatters : are controlledby the provisions of the Texas Probate Code, (Sections 

### 1.08,

et seq;and 

### 415,etseq).~ The Texas Mental Health Code specificallyprovi.des, in Section 

### 5547-84,as follows:

"No action takennordeterminationmade under this code and no provision of this code shall affect any guardianship establishedin accord- ' ante with law." (See also Attorney General's OpinionNo. 

### W-330 for a further discussion of guardianshipmatters.)

It might be noted, however, that the Texas Probate. Code now authorizes the appointment of a guardian, not only for "incompetents",but also, "forpersonswhere itis nec'- essary that a guardian be appointed to receive funds from any $overnmental source'oragency" (~Section 4, Texas Probate Code

. And Section 114 of the Texas Probate Code, in setting out the facts which must exist before a guardianmay be appointed, provides in the .caseof "aperson for whom it is necessary to have a guardian appointed to receive funds due suchperson frosnany governmental source" that, "a certificate of the executivehead, or his representativeof the bureau, department,or agency of the government through which such funds are to be paid, to the effect that the appointment of a guardian is a conditionprecedent to the payment of any funds due suchpersons, shallbe prima,facie evidence of the necessity for such'appoin'cment."Thus,.the same facts re~lative to the mental ccnpetency ?f a person, as determinedby the head of a mental hospital,might also be used as evidentiaryfacts in a guardianshipproceeding brought under the provisions of the Texas Probate Code.

Secondly,your question concernsrestoration to mental competency Jr sanity of a person thereto adjudicated by a court to be mentally incompetent or of unsound mind. Prior to the adoption of the Mental Health Code, it was well settled that the adjudicationby a court that~ a person was of unsound mind, or mentally incompetent,establishedthe status of that person as of that time, and that such adjudication gave rise to a presumption that such person so adjudicated continued to be of unsoundmind, or mentally incompetent, until such presumptionmight later be rebutted in a proceeding brought for that purpose. (That is, brought un-Mr. John H..Wlnters,page 4 (WW-7%)

derthe so-called restoration statutes.) This rule was' stated In the case of Elliott v. Elliott, 208 S.W.2d 790 (Civ.App. 1948, error ref. n.r.e.) as follows: "The implication of the holdings in Williams v. SinclairPrairie Oil Co., 135 S.W.2d 211 (Civ.Ap. re ., u gm. car.); Bagel v. White, 1939, error 16 I;S.W.Zd 309 (Civ. App. 1943, error ref. W.-ton v. Stewart, 191 S.W.2d 798 (CiV.Ap 411 (Civ.App. 

### 1946 , P' 1945); and-

--=3- 94 S.W.2d is that an adjudica ion of insanity by the county court raises a continuousrebuttablepresumption of insanity, and that only a judgmentof restoration of sanity, entered in a proceedingbrought for that purpose, will be sufficientto conclusivelyremove such rebuttablepresumption."

The question raised now is, did the Texas Mental Health Code change the above law? The applicableprovisions of the Texas Mental Health Code on the matter are as 'follows:


### wt. 5547-al.,Effect of Discharge - (a)

. . . (b) The dischargeof a patientwho has been found to be mentally incompetent terminates the presumption that he is mentally Incompetent." (Acts 1957, 55th Legislature,page 505, Chapters 2 and 3.)
Art. 5547-82 of the Texas Mental Health Code provides a procedure for a hearing and an adjudicationof the question of restoration and dischargeof a patient still committed to a mental hospital. 6-- It might be notedhere that subsection (e) of this Art cle which provided, "Thehearing shallbe before the courtwithout a jury"was held to be unconstitutional in the case of Swlnfordv. Logue, 313 S.W,.2d547 (Civ.App.

### 1958,Writ dism. on application of petitioner)._7

And finally, Article 

### 5547-83,(asamended by Acts 1959, 56th Legislature,page 

### 887,Chapter 409) now provides as follows:

"(a) The judicialdeterminationunder this Code that a person is mentally lncompetent creates a presumption that the person continues to be mentally incompetentuntil heMr. John H. Winters, Page 

### 5 (W-796)

is discharged from the mental hospital or until his mental competency is redeterminedby a court. (b) The judicial determinationthat. a person is mentally ill or the admission or commitmentof a person to a mental hospital, without a finding thathe is mentally incompetent, does not constitutea determinationor adjudicationof the mental competencyof the person and does not abridge his rights as a citizen or affect his property rights or legal capacity. (c) When any personunder the provisions of this Code shallhave been committed as a patient to a mental hospital for any p,eriod,

regardless of duration,by order of a county court, and shallhave been dischargedand releasedby suchhospital, suchpersonmay file application with such county court for an order adjudicating that he is not now mentally ill or incompetent,to which application shall be attached a certificationattesting to such facts, signedby an attendingphysician at the hospital to which suchpatient was committed. The courtmay enter an order granting such application;but, in connection therewith,he may conduct a hearing and summon suchwitnesses as in his judgmentmayAbenecessary to satisfy him as to the merits of the application." As amended Acts 1959, 56th Leg., p. 887, ch. 409, % 1. Subsections (a) and (b), supra,were contained in the original Code as ado ted in 1957, (effectiveJanuary 1, 1958), but subsection (c

P was added in 19%. Such subsectionprovides a procedure for an order of the court adjudicating that he is not now mentally ill or incompetentafter discharge from a mental hospital.

It is the opinion of this office that, under the Texas Mental Health Code, a discharge from a mental hospital, doesnot, in itself, effect a restoration of a mentally incompetentperson. Such act, that is, a dischargefrom the mental hospital,merely "terminatesthe presumption that he is mentally incompetent." An action in the county court is still necessary to adjudicate that question. The Code, asMr. John H. Winters, page 6 (w-796)

amended in 1959, specifically sets out -. -. . the procedure for such adjudication aster alscnnrgerrom the mental hospital, The emergency clause the above auoted Article 5547-83, provided; "sec. 3,The fact that there is not now-any provision for judicial restoration of persons adjudgedmentally incompetentunder the Texas Mental Health Code, creates an emergency . . . etc." Had the Legislature intended that a discharge from the hos tion, then subsection "i ital to be tantamount to a restorac), supra,would be superflous. All three of your inquiries ask the common question: "Is the dischargeand the certificatefrom the superintendent of the hospital sufficientto restore the civil rights of that individual

. . .?'IThe answer, as to all three situations, is: The dischar e and the certificateof the +self superintendent doesno , , affect such restoration. Such e.cts

merely terminate the presumption of mental incompetency existingby reason of the original adjudication. There is a distinctionbetween an adjudicationof a fact by a court (i.e.,a restoration), on the one hand, and a "terminationof a nresumption"by an act of the head of a hospital, on the other hand.

With respeCt to the time when such acts tookplace (that is, the time of the orlginal adjudicationand discharge), and whether the old law or the new Code would apply, you are referred to Article 5547-100,which provides:

"This Code applies to any conduct, transaction or proceedingwithin Its terms which occurs after the effective date of this Code, whether the patient concerned in the conduct, transaction orproceeding was admitted or committed before or after the effective date of this Code. In particular, the dischargeunder this Code of any patient committed to a mental hospital under the prior law terminates any presumption that he is mentally incompetent. However, a proceeding for the commitmentof a person to a Statemental hospital begun before the effective date of thisCode is governedby by the law existingat the time the proceeding was begun and for this purpose the law shallbe treated as still remaining in force. Unless these proceedings are completedwithin nine (9)months after the effective date of this Code they shall be governed by the provisions of this Code." Acts 1957, 55th Leg., p. 505, ch. 243, 8 100.. .

Mr. John H. Winters, page 

### 7 

### (w-796)

Thus when a person was adjudicatedmentally incompetent (orunsound mind) and discharged,both prior to the effective date of the Texas Mental Health Code (your question No. l), the Code is not controlling since it states in express terms that the Code applies to any conduct, transaction'

or proceedingwithin its terms which occurs after the effective date. The Code would apply to the fact situations stated in your questions 2 and 

### 3, since it states as follows: "ThisCode applies to any conduct, transaction or proceeding within its terms which occurs after the effective date of this Code, whether the patient concerned in the conduct, transaction or proceedingwas admitted or committedbefore or after the effective date of this Code

. . .'I

Wenow allude briefly to the two examples of Certificates of Dischargementioned in your letter. Such Certificates are provided for in Article 5547-80, subsection (d), which provides:

"Upon the dischargeof a patient, the head of the mental hospital shallprepare a Certificate of Discharge stating the basis therefor

. . ."
We agree that, in at least one example, the superintendent did not purport to express an opinion as to the patient's restoration or recovery. However, it is the fact of the dischargefrom the hospital, and not the issuance of such Certificate,which has the effect of terminatingthe presumption of mental incompetency. Subsection (b) of Article 

### 5547-81states, "thedischargeof a patient who has been found to be mentally incompetent terminates the presump,tion

that he is mentally incompetent." In this connection, Article 5547-g of the Code authorizes the Board for Texas State Hospitals and Special Schools to, "prescribethe form of applications, certificates

. . .provided under this Code and the information required to be contained therein."

SUMMARY 

### (1) A person judicallydeclared to be of unsound mind and committed to a Statehospital, and subsequently dischargedtherefrom, all prior to the effective date of the Texas Mental Health Code (January 1, 

### 1958), in order to be restored to legal competency,must proceed in the^

.

Mr. John H. Winters, page 

### 8 

### (ww-796)

county court in

.. a restorationproceeang now provided by law

cArticle 

### 5547-83,Section 

### (3)of the odg, and his dischargehas no legal effectupon the evidence or proof required to determinehis mental status.
(2) A person adjudicatedby a court to be mentally incompetent,whether before or after the effective date of the Texas Mental Health Code, and discharged from the mental hospital after the said date (January 1, 1958), -likewise proceed, in court, as
?rovided in Article 

### 5547-83,Section cl, to be legally adjudicatedmentally competent,but suchperson would be presumed to be mentally competent. Very trulyyours,
WILL WILSON

EMcV:jf:pm

APPROVED:
OPINION COMMITTEE
W. V. Geppert , Chairman Cecil C. Cammack, Jr. Marvin H. Brown, Jr.
Jot Hodges, Jr.
Leon F. Pesek
REVIEWED FOR THE ATTORNEYGENERAL BY: Leonard Passmore