Mr. John H. Winters 

Commissioner 

Department of Public Welfare . - 

Opinion No. w-796 

Re: &uestions Toncerning 

tne legal determination 

of restoration of recipients of public assistance, who have been 

judicially declared to 

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 discharge from a mental hospital of a 

patient who has been theretofore adjudicated by a court to 

be mentally incompetent. The questions call for an interpretation of certain provisions of the Texas Mental Health Code 

(House Bill No. 6, Acts of the 55th Legislature, Regular Session, 

19 7, 

2 

Chapter 243, page 505, Codified as Articles 5547-l through 

55 7-104 of Vernon'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 incompetent by 

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 state hospital prior 

to that date, is the certificate from the 

superintendent of the state hospital sufficient to restore the civil rights of that 

individual so that he may receive, endorse, 

and expend his ptlblic assistance check without a guardian or without a judicial determination of his restoration? 

'k2. If the person was adjudged to be 

of unsound mind or mentally incompetent by 
0 . . _. 

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 may receive, 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 BO that he may receive, 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 who wa0, for Borne reason, 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 state hospital, 

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. Guardianship matters : 

are controlled by the provisions of the Texas Probate Code, 

(Sections 1.08, et seq;and 415, etseq).~ The Texas Mental 

Health Code specifically provi.des, in Section 5547-84, as 

follows: 

"No action taken nor determinationmade under 

this code and no provision of this code shall 

affect any guardianship established in accord- ' 

ante with law." 

(See also Attorney General's Opinion No. W-330 for a 

further discussion of guardianship matters.) 

It might be noted, however, that the Texas Probate. 

Code now authorizes the appointment of a guardian, not only 

for "incompetents", but also, "for persons where itis nec'- 

essary that a guardian be appointed to receive funds from 

any 

$ 

overnmental source'or agency" (~Section 4, Texas Probate 

Code . And Section 114 of the Texas Probate Code, in setting 

out the facts which must exist before a guardian may be appointed, provides in the .case of "a person for whom it is 

necessary to have a guardian appointed to receive funds due 

such person frosn any governmental source" that, "a certificate of the executive head, or his representative of 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 condition precedent to the payment of any funds due such persons, shall be prima,facie 

evidence of the necessity for such'appoin'cment." Thus,. the 

same facts re~lative to the mental ccnpetency ?f a person, 

as determined by the head of a mental hospital, might also 

be used as evidentiary facts in a guardianship proceeding 

brought under the provisions of the Texas Probate Code. 

Secondly, your question concerns restoration 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 adjudication by a court that~ a person was 

of unsound mind, or mentally incompetent, established the 

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 unsound mind, or mentally incompetent, until such presumption might 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.A p. 

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 continuous rebuttable presumption of insanity, and that only a judgment of restoration of sanity, entered in a proceeding brought for that 

purpose, will be sufficient to conclusively remove such 

rebuttable presumption." 

The question raised now is, did the Texas Mental 

Health Code change the above law? The applicable provisions of the Texas Mental Health Code on the matter are 

as 'follows: 

wt. 5547-al., Effect - of Discharge 

(a) . . . 

(b) The discharge of a patient who 

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 adjudication of the question 

of restoration and discharge of a patient still committed 

to a mental hospital. 

6-- 

It might be noted here that subsection (e) of this Art cle which provided, "The hearing 

shall be before the court without a jury" was held to be 

unconstitutional in the case of Swlnford v. Logue, 313 

S.W,.2d 547 (Civ.App. 1958, Writ dism. on application of 

petitioner)._7 

And finally, Article 5547-83, (as amended by Acts 

1959, 56th Legislature, page 887, Chapter 409) now provides as follows: 

"(a) The judicial determination under 

this Code that a person is mentally lncompetent creates a presumption that the person 

continues to be mentally incompetent until he 
Mr. John H. Winters, Page 5 (W-796) 

is discharged from the mental hospital 

or until his mental competency is redetermined by a court. 

(b) The judicial determination that. 

a person is mentally ill or the admission 

or commitment of a person to a mental hospital, without a finding that he is mentally incompetent, does not constitute a 

determination or adjudication of the mental competency of the person and does not 

abridge his rights as a citizen or affect 

his property rights or legal capacity. 

(c) When any person under 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 shall have 

been discharged and released by such hospital, such person may 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 certification attesting to 

such facts, signed by an attending physician at the hospital to which such patient 

was committed. The court may enter an 

order granting such application; but, in 

connection therewith, he may conduct a 

hearing and summon such witnesses as in 

his judgment may Abe necessary 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, (effective January 1, 1958), 

but subsection (c P was added in 19%. Such subsection provides a procedure for an order of the court adjudicating 

that he is not now mentally ill or incompetent after 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, does not, in itself, effect a restoration of a mentally 

incompetent person. Such act, that is, a discharge from the 

mental hospital, merely "terminates the presumption that he 

is mentally incompetent." An action in the county court is 

still necessary to adjudicate that question. The Code, as 
Mr. John H. Winters, page 6 (w-796) 

amended in 1959, specifically sets out 

-. -. . 

the procedure for 

such adjudication aster alscnnrge rrom 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 adjudged mentally 

incompetent under 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 discharge and the certificate from the superintendent of the hospital sufficient to restore the civil rights 

of that individual . . .?'I The answer, as to all three 

situations, is: The dischar e and the certificate of the 

superintendent does no +self , , affect such restoration. 

Such e.cts merely terminate the presumption of mental incompetency existing by reason of the original adjudication. 

There is a distinction between an adjudication of a fact by 

a court (i.e., a restoration), on the one hand, and a 

"termination of a nresumption" by an act of the head of a 

hospital, on the other hand. 

With respeCt to the time when such acts took place 

(that is, the time of the orlginal adjudication and 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 proceeding within Its terms which 

occurs after the effective date of this Code, 

whether the patient concerned in the conduct, 

transaction or proceeding was admitted or committed before or after the effective date of 

this Code. In particular, the discharge under 

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 commitment of a 

person to a State mental hospital begun before 

the effective date of this Code is governed by 

by the law existing at the time the proceeding 

was begun and for this purpose the law shall be 

treated as still remaining in force. Unless 

these proceedings are completed within 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 adjudicated mentally incompetent (or unsound 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 proceeding within 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: 

"This Code 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 proceeding was admitted or committed before 

or after the effective date of this Code . . .'I 

We now allude briefly to the two examples of Certificates of Discharge mentioned in your letter. Such Certificates are provided for in Article 5547-80, subsection (d), 

which provides: 

"Upon the discharge of a patient, the 

head of the mental hospital shall prepare 

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 discharge from the hospital, and not the issuance of 

such Certificate, which has the effect of terminating the 

presumption of mental incompetency. Subsection (b) of 

Article 5547-81 states, "the discharge of 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, "prescribe the 

form of applications, certificates . . . provided under this 

Code and the information required to be contained therein." 

SUMMARY 

(1) A person judically declared to be 

of unsound mind and committed to a 

State hospital, and subsequently 

discharged therefrom, 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 restoration proceeang now provided by law 

c 

Article 5547-83, Section (3) of the 

odg, and his discharge has no legal effect upon the evidence or proof 

required to determine his mental 

status. 

(2) A person adjudicated by 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 adjudicated mentally 

competent, but such person would be 

presumed to be mentally competent. 

Very truly yours, 

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 ATTORNEY GENERAL 

BY: Leonard Passmore