Bhen a person has been adjudicatad insane by a court of oompatent jurisdiction,and confined in a state institution, if this institutionunconditionallydischargesthis personwhose mental condition later becomes such that it is neoassary that he be reaommitted, it icr neoessarythat the personbe tried Pgain for .insanity before he oan be ooxmuitted to or oonfined in the,institution fran which he ~8 discharged,even though the original juwent of convictionhas not been set aside.
Hay 23, 1939

%&able B. C. Slaglo, Jr. Criminal Distriot. Attorney. Sherman, Texas

Dear Sirs Opinion Bo. O-655 Rer Can the trial oourt issue an alias oemmitmenton the original jud*nexrt

of insanity, or must the person be tried again for insanity?

m are in reoeipt of your letter ofApril 24, in which you request an opinion on the following question:

*Vhen a party ha6 been oonvioted of insanity and sent to a etato institution,this inrrtitution dischargee the prty and the party'smental oondition later beaom~s suohthat it ia neoeraary that they be reoommittad, the original judgment

### of aomiotion not having hen set aside,
oan the trial oourt 0au.w to ha issued an alias c-itment on the original judepnent, or is,it neoesaary that the party be agaia tried?

Ilkare ammning fran tiie'abxvfaoih a proper adjudication of insanity in a court of ocerpetent jurisdiotion,an original permanent cornmitment to the state institution,and a subsequentunoonditionaldisoharge by said institutionof the partywhose senitywas in question.. .

Hon. R. C. Slagle - Pago 2 (O-665)

The ~WCI

Pfiinent questions of law raised are (1) the povsr of the state institutionto dischargeunconditionallym insane psrson tio has recovered in the opinion and best judgment of the institutionofficialsJ and, (2) the power of the court of original jurisdictionto re-c-it on the Original judgTnent of insanity a psrson unconditionallydischarged by a state instititionas restored to Smity, but who subsequent to th.,discharge lap08 mentally- to such 811extent that re-ccgrmibent is necsssav. r~-

To **Y the le**t, the statutes oftha State of Texas in relation to the authority of 0 state institutionfor the insane to discharge a Orson who, in the judgment of the officials, has been restored to a soundmind, are in an lmsatisfaotoryand doubtful conditionm find no direot statutoryauthorization for the dischargeupon rea~vsryof one permanently oommittedto a hospital for the insane after proper adjudioptionof unsomd mind by the institution itself.

Section 4 of Artiols 5561a of Vernon's Annotated Civil Statutes provides the prooedure for obtaining a judicialorder of dischargewhere a person not chargedwith a criminaloffQlse is restored to Sanity. It reads
as followsr
"Upon the filing in the oounty court in which a person ms ootioted or in the county oourt of the aounty inahiah a person is locatedat the the he is alleged to have had his rightmind restored, informationin writing and under oath made by a physioian legally licensed to praoticemedioiw in Texas, that a personnot chargedwith a oriminaloffense,who bs been adjudged to be of unsoundmind, has been restored to his right mind, the judge of said oourt shall forthWith, either b term tima or vacation, order saidperson brought before hh by the sheriff of the county and if said issue b8 in doubt said judge shallcause a jury to be suarmonedand impaneled in the 8amemanner as is provided for in Section 3 hereof and shall prooeed to the trial of said issue, or if timare appears no doubt as to said issue, said judgemay try the 681110 without the jnterventionof a jury, and if said person shall be found to be of soundmind, a judgment shall be entered upon theminutes of said court reciting and adjudging such faot and said persons shall, if then mder restraint,be immediatelydischarged,ar in the event he shall be found t0 be still Of Unsoundmind, he shall be returned by the county Court to the place of restraint frQn whiah he badbeen previously ordered, and the original order of ocmmitmsqt shall continue in full force and effect. &.l costs of p?ooeedingsof restoration shall be paid Iy the county.".Hon. R. C. Slagle - Page 3 (O-665)

Itwill be noted that the above sectionprovides that in the event a personunder restraint is adjuged to be of soundmind he shall "if then under restraint,be immediatelydischarged." Them is no discretion in the officialsof the institution of confinement. The judgment of sanitywould be the offioial authority for such disoharge, and notice of sam+ served upon the asylwn authoritieswould open the door of freedom to the inmaterestoredto sanity. Under Section 4 ofArticle 5561a itwould appear that nothing lass than en adjudicationof sanitywould be effeative to bring about the permanent discharge af an insaw person oonfined in a state institution,unless other statutoryauthority for the latter's release by the institution of incarceration can be found in the lawa of the State.

We have been unable to find any direct statutory authorization for discharge of a person of unsoundmind by the officials of a state institution in whioh the insane partywas prmanently confinedby an order of the court. Seal-Jon 2 of Article 31930,Vernon's Annotated Civil Statutes (Ads 1937, Forty-fifthLegislature, p. 542, oh. 268), oonoern8the release of temporarily camitted patients, as followsr

*A personwho has been temporarily oommittodw the Cow Court to a State hospital for obsemation r&&or treatment,may be released, discharged,or furloughed by the hospital superintendentat any time during the oommitment period. Said patient shall la automatioallydischarged on the expirationdate fixed in the Court16 order and the hospital superintendentshall thereupon Immediatelyrelease such ptient, and any discharge from said superintendent of saidpatient shall operate to fully set aside in all respeats said order of commitmentby the County Court."

As pointed out above,we have assumed that the presentquestion is not based on a temporary commitmentof the lunatio. Nor is the question in our'opinionbased on I grant of temporary absence to the inmate. Article 31931, Rev&d Civil Statutes of 1925, authorizes the superintendnetof
an institutionof'confinementto grant temporary leaves of absence to inmates on certainwell defined conditions. It does not authorizea disoharge.

&ticle 31931 providesr

"The superintendentof any iwtitution, after the examination as hereinafterprovided,may permit any inmate themof temporerilyto leave such institution in charge of his guardian, relatives, friends, or by himself, for a period not exoaedingtwelve months, and may rboeive him whenreturned by such guardian, relative,friend, or upon.his own application,within &oh period,without pny further order of commitment,but no patient,who has beeq,,&argedwith, or oonviotedof, some offense and been adjudged fnsane in ~coorda.uoa with the provisions of the cods of oriminalprooedure, shell be permitted to temporarilyHon. R. C. Slagla - Page 4 (O-665)

leave such institutionwithout the approval of the governor, nor shall such permission terminate or in any way affe& the original order of commitment. The superintendentmay require
as a conditionof such leave of absence, that the person in whose charge the patient is petitted to leave the institution, suah*hallmake reports to him of the patient's condition. by superintendent,guardian,relative, or friendmay terminate such leave of absence at any tima and authorize the arrest and return of the patient. Any peace officer of this State *hall cause such patient to be arrested and returned upon the request of any such superintendent,guardian, relative or friend. victed by patient, except such as are chargedwith, or conof some offense, and have been adjuged insane in accordpnoe with the provisions of tha oode of driminalprocedure, who has returned to the institutionat the expiration of twelve months mpv be Branted an additional leave by the superintendent or upon his reoommehdation."

The statute statesthat temporary leave shallbe *for a periodnot exceeding twelve months," and that arty patient,with the exoeption of insane criminals, "who has returned to the institutionat the expiration of twelve months may be granted an additionalleave by the superintendent,or upon his reoommendation."

Itwill be observed that the above quoted se&ion states that the superintendentmay rs-admit the grantee of the leave "without any further order of ocmrmitanent" within the twelvemonths period. The statute is silent
as to whether or not a further order of oommitment is necessary if the inmate overateyshis tlrslva-month leave of abaenoe-with or without the pennisaion of the saperinttendsnt, end if a further order is neosssarywhether it
can be issued on the original judgment orwhether a new trial and new order is necessary.

I?hilethese questions are not involved in this instanoe, it is important to refer to the opinion of this depPrtment rendered on February 26, 1931, by Ronorable Albert EIooper, assistant Attorney General, addressedto Dr. Chps. W. Castnor, Superintendentof Wiohita 'Falls State Hospital, holding Article 31931, supra, couldnot be re-admitted to the institution fromwhich they had taken leave, if they did not report at the end of the twelvemonths period designated in the statute. Furthermore, it 1~1s held that it was the duty of the superitisndentof state hospitals,when a pstisnt remains or is kept out of P state hospital for a longerperiod than twelvemonths, to discharge suoh patient,

WE hava been unable, as preyiously indioated, to find any dire& authority in the statutes of Texas relating to insanitywhereby the superintendent or officials of a hospital for the insane could discharge a person adjudicated insanewith such finality as to require a reOOmitm%h and additional judicial proceedings.- -

Ron. R. C. %agle -- Page 6 (O-665)

We admit thatArticle 31833,Revised Civil States, 1925, infers that the officials of a state hospitalhave such power. Said section reads
es follows:

"No patient in a State hospital shell be discharged therefrgn or permittedto leave on a temporaryvisit without suitable clothing;and the Ibardof Crntrolmay furnish the same, and such
an amount of money, not exoeeding twenty dollars ($20.00)as they may oonsider necessary. Inquiry shell be made into the future situationof every patient about to be discharged or permitted to be temporarilyabsent, and precautionarymedical advice shall be given him. Bo patient shall be discharged or penuitted to be temporarily absent fran any institutionwithout a personal examination of hismental o&dition made by one ofthe hospital physicianswithin forty-sighthours of his departure,the result of whioh shellbe entered in his case rsoord."

The above quotedArbiole refersto disoharge as if the Legislature assumed that such powerwus vested in the institutionof confinement.

The-Texas authorities,moreover, throw little light upon the question of the authorityof the institution to discharge a patient parmanently.

InVfsst Lmubsr Co.vs. Henderson (1922), 236 S.W. 710, the following propositi6n of law is anounoedr

"The rule is ~11 estebliehed that when one has been adjudged tinsane

and ocrmmitted

to the insane asylwn, ha oontinues to be insane until disoharged. 22 Cyc. 1116; 14 R.C.L. 622."

In the ease of Mitohell vs. Stanton (lQll), 139 S.H. 1033, it
was held that adjudicationof insanity by P court of jurisdictionwas in the natum of a proceeding in rem fixing status of the party involved:

I

. . . the appslleewas adjudged a lunatic by a coui-t of aompetent jurisdiction,and under and bv virtue of such judgmentwas ccmrmitted to the lunatic esylwn on April 21, 1667, where he has continuouslyever since been held ad a prisoner by the authority of the Stats of Texas. Suah adjudication
was in the nature of a prooeeding in rem, fixing the status of appellee as ~alunatic, and, pnsofar as it affaots his rights, is notice to everyonewhile it subsists and iS in force by imprisonmentof the lunatio."
Sincewe do not find any express provision of our statutes authorizing or pro&biting the final discharge of a patient committedto the asylm by the officials thereofwithout a oourt order under Section 4 of Article 5561a,we must of necessity oonstrue the present statutes.Hon. R. C. Slagls, Jr., Page 6 (O-685)

It is our opinion that the proper officers of the asylm would have the power to disoherge a reooveredpatientwith the effect of nullifying the order of commitauent.

Cur authority is the ease of Byers vs. Solisr, 16 Wyo. 232, 93 Pac. 59 (1907), Supreme Court of Wycmingr

The fads of this case areate the same situationdesoribed in the letter of request. InApril, 1893, Byerswas legally caumitted to the l$omin" State Hospital for the insane by the district court of Albany Coun-

. Eight years later he was released and discharged to the control of his mother, who took him to Michigan. Having become insane again in hismother's custody, the l&ohigan authoritiesreturned him to Wyoming where Solier, the super3ntendentof the state hospital, took possession ofhim againwithout a new trial. Petitim for habeas oorpuswas filed for and on behalf of Byers.

At ths time this oaaewas decided, the Wyoming statutes closely paralleledthe present Texas law in regard to insane persons. Therewas no express statutory authorization of permanentdisoharge by the insane asylrrm, and no provision for re-oaitment of P person disoharged end later ralapsed into insanity. Seotion 4894, Revised Statutes of 1899, called for an adjudicationof sanity by jury or the court when the question for a restoration of oapacity if the partywas held sane. The court, after expressing oonsiderabledoubt, held that the insaneasylum possessed the power of perment discharge of e person its offioials oonsidered restored to sanity, although it did not decidethe matter of whether.restorationof capacitywould follow a discharge by the asylum, in the abmnos of express statutoryauthority for suah disoharge.

We quote and adopt the language of the court in respect to the matter of the discharge of e party restored to sanity by a state institution; "In the absence of a statutemaking positibe regulations for a voluntary discharge,must a patient, onas committed to the asyllan,

be retained there until releasedupon habeas corpus, or by SQR~ other authorized judicial proceeding bywhich a releasemay be enforced; or, without a judicial investigation, may the officers in oharge of the institutiondisoharge one aommitted to it when they ard able to determinethat a proper degree of recovery has occurred to justify it, or upon the happening of any conditionrendering the discharge in their judeant advisable? We are of the opinion that in the absence of P statutemaking oontrary regulationsor restriot~ons,or expressly or impliedly vesting exalusive authority in the premises elsewhere, the controlling authoritiesof the institution,to carry out the obvious purpose of its establishment,must be held to possess the power to voluntarily release a canmittedparty upon his recovery; or, in the exeroise of a reasonable discretion and sating in good faith, whenever the oiroumstanoasare daemed,.proper to justify such aHon. R. C. slag10 - 'age 7 (O-685)

course,to release a patientwho may not have fully recovared, either unoonditionally,or temporarilyand upon expressed conditions. That the state board and the superintended have found the exercise of such power to taneonssary, in the present state of our statutes, is shown by the averments of the answer in this case, If that should be deemed too great a pewer to vest in the hospital authorities without restriction, it is P matter easily rarmedied by legislation. It is clearlynot impossible or even improbable that in occasional case" the characterof the mental disorder of an innatemay be such that his care out of the institution by relatives or friendswilling to assume the burden thereof will be proper without endangeringthe welfare of the patient or the safety of the public."
'Rk, feel that in Texas, although there is no express authorieation for an unconditionaldisoharga by the institution, still the statutes considered,in the absence of specific statutoryrestriction, impliedly authorize disoharga by the state institutions. As suggested in theWycming case, if this is too great a power to vest in the insane asylm br'hospital authorities,the situationsmay be remedied easily by the Legislature. As a matter of polioy,we do not anticipateany endangeringof the public from this oonstruotionof our statutes.

The principal quo&ion in the case oonoernsthe necessity of a new trial for a party who has been discharged and later beaomes insane again.

The case of Byers vs. Solisr, supra, is a direot authority on this point, andwe follow its decision unqualifiedlyin the oase of an unoonditional discharge.

Quoting from the opinion: "Having concludedthat the authorities in control of the hospital for the insane may in good faith discharge a patient ocmrmitted

thereto,m are next to inquire into the effeat of au unoonditionaldischarge,,suchas ooourred in 1901 by the disoharga of the plaintiff in this case. I% refer to that discharge as unconditional, forwe think the oircumstances show it to have been such. That any conditionwas attached to the disoharge is net disclosed bythe ansmr or the evidenoe. It may have been and probablywas confidentlyexpeotsdthat the patientwould he kept out of the state, or at least safely in themother's custody,but it does not appear that the release of plaintiffwas conditioned upon that being done. In view of the matter heard anddetermined upon a lunacy inquisitionunder the statuteproviding therefor, and the effect of an order and comnitmsnt for the restraingof the party found upon such an inquisition to be of unsoundmind or incompetent,the conclusion seems to be inevitablethat theHon. R. C. Slagle, Jr* - Page 8 (O-685)

hearing and commitmentwill have served their purpose, and ceased to be effectual,after an unconditionaldischarge fran the place of lawful restraintby competentauthority. If circumstancesthereafter should arise seeming to requim
or justify a renewal of the custody and restraint, in the interest of the person or the public, another hearing ought to be had to determinethe question. Great injusticewould often, if not generally,result from 8 different rule, even if the legal rights of the party to be personally affected
were not to be considered. But P parson chargedwith inspnity or othermental infirmityhas the same legal right as any other citizen to olpimthe benefit of constitutionaland statutoryprovisions affecting his personal liberty."

See also In ru Thorpe, 64Vt. 398, 24 Atl. 991; Gresh's Case, 12 Pac. Co. Ct. R. 295.

While wu am unoertain as to the civil rights of P person upon whaa is affixed the statusof insanity in P proceeding in rem, to refer to the Texas case of Mitohsll VS. StPnton, supra,we recognizea right of personal liberty even in a person ahargedwith insanity or mental infirmity
as long as the safetyof thepublio is not jeopardized. The nycrning court recongizes tin

exceptionto its ruling that the asyl\mr authoritiesare not vested with authority to rsoomnit a person preyiously dischargedwithout a legal inquiryprovidedby law. This is the case of one violently and dmgarously tinsane.Such a personmay be temporarily oonfineduntil the neoessary legal prooeeding OM be had. The court said:

"Gsnerally,it is permissible,pdthout warrant or explecrs

authority, to oonfine temporarily a person disposed to do mischief to himself or another person, until the proper prooesdings 0011 be instituted to'haw thb'question of his sanity determined. In such copse, the restrain beacmesnecs6cM-y and, therefore, proper, both for the safety ofthe party himself and for the preservation of the publio peaoe. 16 Am. & Eng. L. (2nd Ed.) 596."
The above axoeptionwould hew effect in MY case. The dangerous lunatic has no InaXiienable right to roam the country et will and terrorize the pupulaoe. He must be confined until the legalmachinery designed to
see that he receives justice and the benefits of dub process of law is set inmotion.Ron. R. C. Slagls, Jr., Page 9 (O-665)

It is our opinion that when a person has been adjudicated insane by a court of competent jurisdiction,and confined in a State inakItution,if this institutionunconditionallydischargesthis person whose mental conditionlater becomes such that it is necessary that he be re-conrmitted,

it is neoessary that the person be tried again for insanitybefore he can be ccamnitted to or confined in the institution fran hioh he mas discharged,even though the original judgmentof conviction has not been sat aside.

Trubting that the above fully answers your inquiry,we are

Yoursverytruly
ATTORNEYGEN%RAL OF TEUS

BY s/ wok stout

Dick Stout Assistant

This opinion has been considered in conference,approved, and ordered reaorded.
s/Gerald C. %nn GERALD C. b%NN ATlORNNY GEfNERAL

OF TEXAS

.