Bhen a person has been adjudicatad insane by a court of oompatent jurisdiction, and confined in a state institution, if 

this institution unconditionally discharges this person whose 

mental condition later becomes such that it is neoassary that 

he be reaommitted, it icr neoessarythat the person be 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 conviction has 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 oemmitment on the original jud*nexrt of insanity, or 

must the person be tried again 

for insanity? 

m are in reoeipt of your letter of April 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's mental 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? 

Ilk are ammning fran tiie'abxv faoih a proper adjudication of 

insanity in a court of ocerpetent jurisdiotion, an original permanent cornmitment to the state institution, and a subsequent unoonditional disoharge 

by said institution of the party whose senity was in question. 
. . 

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

The ~WCI Pfiinent questions of law raised are (1) the povsr of 

the state institution to discharge unconditionally m insane psrson tio 

has recovered in the opinion and best judgment of the institution officialsJ 

and, (2) the power of the court of original jurisdiction to re-c-it on 

the Original judgTnent of insanity a psrson unconditionally discharged by a 

state institition as restored to Smity, but who subsequent to th., discharge 

lap08 mentally- to such 811 extent 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 institution for the insane to discharge a Orson 

who, in the judgment of the officials, has been restored to a sound mind, 

are in an lmsatisfaotory and doubtful conditionm find no direot statutory authorization for the discharge upon 

rea~vsry of one permanently oommitted to a hospital for the insane after 

proper adjudioption of unsomd mind by the institution itself. 

Section 4 of Artiols 5561a of Vernon's Annotated Civil Statutes 

provides the prooedure for obtaining a judicial order of discharge where a 

person not charged with a criminal offQlse 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 located at the the he is alleged to have had his 

right mind restored, information in writing and under oath 

made by a physioian legally licensed to praotice medioiw in 

Texas, that a person not charged with a oriminal offense, who 

bs been adjudged to be of unsound mind, has been restored to 

his right mind, the judge of said oourt shall forthWith, either b term tima or vacation, order said person brought before 

hh by the sheriff of the county and if said issue b8 in doubt 

said judge shall cause a jury to be suarmoned and impaneled in 

the 8ame manner 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 judge may try the 681110 without 

the jntervention of a jury, and if said person shall be found 

to be of sound mind, a judgment shall be entered upon the minutes of said court reciting and adjudging such faot and said 

persons shall, if then mder restraint, be immediately discharged, ar in the event he shall be found t0 be still Of Unsound mind, 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?ooeedings of restoration 

shall be paid Iy the county.". 
Hon. R. C. Slagle - Page 3 (O-665) 

It will be noted that the above section provides that in the 

event a person under restraint is adjuged to be of sound mind he shall 

"if then under restraint, be immediately discharged." Them is no discretion in the officials of the institution of confinement. The judgment 

of sanity would be the offioial authority for such disoharge, and notice 

of sam+ served upon the asylwn authorities would open the door of freedom to the inmate restored to sanity. Under Section 4 of Article 5561a 

it would appear that nothing lass than en adjudication of sanity would 

be effeative to bring about the permanent discharge af an insaw person 

oonfined in a state institution, unless other statutory authority 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 unsound mind by the officials of a state institution in whioh the insane party was prmanently confined by an order 

of the court. Seal-Jon 2 of Article 31930, Vernon's Annotated Civil Statutes (Ads 1937, Forty-fifth Legislature, p. 542, oh. 268), oonoern8 the 

release of temporarily camitted patients, as followsr 

*A person who has been temporarily oommittod w the 

Cow Court to a State hospital for obsemation r&&or 

treatment, may be released, discharged, or furloughed by 

the hospital superintendent at any time during the oommitment period. Said patient shall la automatioally discharged on the expiration date fixed in the Court16 order and the 

hospital superintendent shall thereupon Immediately release 

such ptient, and any discharge from said superintendent 

of said patient shall operate to fully set aside in all respeats said order of commitment by the County Court." 

As pointed out above, we have assumed that the present question 

is not based on a temporary commitment of the lunatio. Nor is the question 

in our'opinion based on I grant of temporary absence to the inmate. Article 31931, Rev&d Civil Statutes of 1925, authorizes the superintendnet of 

an institution of'confinement to grant temporary leaves of absence to inmates on certain well defined conditions. It does not authorize a disoharge. 

&ticle 31931 providesr 

"The superintendent of any iwtitution, after the examination as hereinafter provided, may permit any inmate themof temporerily to leave such institution in charge of his guardian, relatives, friends, or by himself, for a period not exoaeding twelve 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,,&arged with, or oonvioted of, some offense 

and been adjudged fnsane in ~coorda.uoa with the provisions of the 

cods of oriminal prooedure, shell be permitted to temporarily 
Hon. R. C. Slagla - Page 4 (O-665) 

leave such institution without the approval of the governor, 

nor shall such permission terminate or in any way affe& the 

original order of commitment. The superintendent may require 

as a condition of such leave of absence, that the person in 

whose charge the patient is petitted to leave the institution, 

suah 

*hall make reports to him of the patient's condition. by 

superintendent, guardian, relative, or friend may 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 charged with, or conof some offense, and have been adjuged insane in accordpnoe with the provisions of tha oode of driminal procedure, 

who has returned to the institution at the expiration of twelve 

months mpv be Branted an additional leave by the superintendent or upon his reoommehdation." 

The statute states that temporary leave shall be *for a period not 

exceeding twelve months," and that arty patient,with the exoeption of insane 

criminals, "who has returned to the institution at the expiration of twelve 

months may be granted an additional leave by the superintendent, or upon his 

reoommendation." 

It will be observed that the above quoted se&ion states that the 

superintendent may rs-admit the grantee of the leave "without any further 

order of ocmrmitanent" within the twelve months 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 or whether a new trial and new order 

is necessary. 

I?hile these 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, addressed to Dr. 

Chps. W. Castnor, Superintendent of Wiohita 'Falls State Hospital, holding 

Article 31931, supra, could not be re-admitted to the institution from which 

they had taken leave, if they did not report at the end of the twelve months 

period designated in the statute. Furthermore, it 1~1s held that it was the 

duty of the superitisndent of state hospitals, when a pstisnt remains or is 

kept out of P state hospital for a longer period than twelve months, to discharge suoh patient, 

WE hava been unable, as preyiously indioated, to find any dire& 

authority in the statutes of Texas relating to insanity whereby the superintendent or officials of a hospital for the insane could discharge a person 

adjudicated insane with such finality as to require a reOOmitm%h and additional judicial proceedings. 
- - 

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

We admit that Article 31833, Revised Civil States, 1925, infers 

that the officials of a state hospital have such power. Said section reads 

es follows: 

"No patient in a State hospital shell be discharged therefrgn or permitted to leave on a temporary visit without suitable 

clothing; and the Ibard of Crntrol may 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 

situation of every patient about to be discharged or permitted to 

be temporarily absent, and precautionary medical advice shall be 

given him. Bo patient shall be discharged or penuitted to be temporarily absent fran any institution without a personal examination of his mental o&dition made by one of the hospital physicians within forty-sight hours of his departure, the result of 

whioh shell be entered in his case rsoord." 

The above quoted Arbiole refers to disoharge as if the Legislature assumed that such power wus vested in the institution of confinement. 

The-Texas authorities, moreover, throw little light upon the 

question of the authority of the institution to discharge a patient parmanently. 

In Vfsst 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 adjudication of insanity by P court of jurisdiction was in 

the natum of a proceeding in rem fixing status of the party involved: 

I . . . the appsllee was adjudged a lunatic by a coui-t 

of aompetent jurisdiction, and under and bv virtue of such 

judgment was ccmrmitted to the lunatic esylwn on April 21, 1667, 

where he has continuously ever 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 ~a lunatic, and, pnsofar as it affaots his 

rights, is notice to everyone while it subsists and iS in 

force by imprisonment of the lunatio." 

Since we do not find any express provision of our statutes authorizing or pro&biting the final discharge of a patient committed to the 

asylm by the officials thereof without 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 reoovered patient with 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 situation desoribed in 

the letter of request. In April, 1893, Byers was 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 his mother's custody, the l&ohigan authorities returned him to Wyoming where Solier, 

the super3ntendent of the state hospital, took possession of him again without a new trial. Petitim for habeas oorpus was filed for and on behalf of 

Byers. 

At ths time this oaae was decided, the Wyoming statutes closely 

paralleled the present Texas law in regard to insane persons. There was no 

express statutory authorization of permanent disoharge 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 

adjudication of sanity by jury or the court when the question for a restoration of oapacity if the party was held sane. The court, after expressing 

oonsiderable doubt, held that the insane asylum possessed the power of perment discharge of e person its offioials oonsidered restored to sanity, although it did not decide the matter of whether.restoration of capacity would 

follow a discharge by the asylum, in the abmnos of express statutory authority 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 statute making positibe regulations 

for a voluntary discharge, must a patient, onas committed to 

the asyllan, be retained there until released upon habeas corpus, 

or by SQR~ other authorized judicial proceeding by which a release may be enforced; or, without a judicial investigation, 

may the officers in oharge of the institution disoharge 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 condition rendering the discharge in their judeant advisable? 

We are of the opinion that in the absence of P statute making oontrary regulations or restriot~ons, or expressly or impliedly 

vesting exalusive authority in the premises elsewhere, the controlling authorities of the institution, to carry out the obvious purpose of its establishment, must be held to possess the power to 

voluntarily release a canmitted party upon his recovery; or, in 

the exeroise of a reasonable discretion and sating in good faith, 

whenever the oiroumstanoas are daemed,.proper to justify such a 
Hon. R. C. slag10 - 'age 7 (O-685) 

course, to release a patient who may not have fully recovared, either unoonditionally, or temporarily and upon expressed conditions. That the state board and the superintended have found the exercise of such power to ta neonssary, 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 clearly not impossible or even improbable that in occasional case" the character of the mental 

disorder of an innate may be such that his care out of the 

institution by relatives or friends willing to assume the 

burden thereof will be proper without endangering the welfare of the patient or the safety of the public." 

'Rk, feel that in Texas, although there is no express authorieation for an unconditional disoharga by the institution, still the statutes 

considered, in the absence of specific statutory restriction, impliedly 

authorize disoharga by the state institutions. As suggested in the Wycming 

case, if this is too great a power to vest in the insane asylm br'hospital 

authorities, the situations may be remedied easily by the Legislature. As 

a matter of polioy, we do not anticipate any endangering of the public from 

this oonstruotion of our statutes. 

The principal quo&ion in the case oonoerns the 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, and we follow its decision unqualifiedly in the oase of an unoonditional discharge. 

Quoting from the opinion: 

"Having concluded that 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 unoonditional discharge,,such as ooourred in 1901 

by the disoharga of the plaintiff in this case. I% refer to 

that discharge as unconditional, for we think the oircumstances show it to have been such. That any condition was attached to the disoharge is net disclosed bythe ansmr or the 

evidenoe. It may have been and probably was confidently expeotsdthat the patient would he kept out of the state, or at 

least safely in the mother's custody, but it does not appear 

that the release of plaintiff was conditioned upon that being 

done. In view of the matter heard and determined upon a lunacy inquisition under the statute providing therefor, and the 

effect of an order and comnitmsnt for the restraing of the 

party found upon such an inquisition to be of unsound mind or 

incompetent, the conclusion seems to be inevitablethat the 
Hon. R. C. Slagle, Jr* - Page 8 (O-685) 

hearing and commitment will have served their purpose, and 

ceased to be effectual, after an unconditional discharge 

fran the place of lawful restraint by competent authority. 

If circumstances thereafter 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 determine the question. Great injustice would 

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 charged with inspnity or other mental infirmity has the same legal right as 

any other citizen to olpimthe benefit of constitutional and 

statutory provisions affecting his personal liberty." 

See also In ru Thorpe, 64 Vt. 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 status of insanity in P proceeding in rem, to refer to 

the Texas case of Mitohsll VS. StPnton, supra, we recognize a right of personal liberty even in a person aharged with insanity or mental infirmity 

as long as the safety of the publio is not jeopardized. The nycrning court 

recongizes tin exception to its ruling that the asyl\mr authorities are not 

vested with authority to rsoomnit a person preyiously discharged without a 

legal inquiry provided by law. This is the case of one violently and dmgarously tinsane. Such a person may be temporarily oonfined until 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 beacmes necs6cM-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 axoeption would 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 legal machinery designed to 

see that he receives justice and the benefits of dub process of law is set 

in motion. 
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 institution unconditionally discharges this person 

whose mental condition later becomes such that it is necessary that he 

be re-conrmitted, it is neoessary that the person be tried again for insanity before he can be ccamnitted to or confined in the institution 

fran hioh he mas discharged, even though the original judgment of conviction has not been sat aside. 

Trubting that the above fully answers your inquiry, we are 

Yoursverytruly 

ATTORNEY GEN%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 

.