I



### XiAS : AUSTIN,TEXA~

November 

### 8,1948

Hon. R. A. Smoot Schmid, Member Board of Pardons and Paroles Austin, Texas Opinion No. V-712

Re: Construction ofArticles 921 and 922, Vernon’s Code of Criminal Procedure, pertaining to trial of is9~6~of,Insanity arising after conviction.

Dear Sir:

Since wereceived your request for an opinion, you have orally advised us that answers to the two hereinafter stated questions will suffice. These questions
are:
1. What court orecourts have jurlsdlction to try the issue of insanity of a convict arising while he Is out of the penitentiary onparole, a conditional pardon, or reprieve?



### ~2. Is ~itnecessary for the convict’s parole, conditional pardon, or reprieve to be revoked before the court maytry. the issue of his insanity?

Article 921 and 922, Vernon’s Code.of Crlminal Procedure, r’ead respectively as follows:

“If at any time after conviction and by the manner and method as ,herel,nafter p:rovided, it be made known to the Judge of the Court in which the indictment has been r.eturned, that the defendant has become.insane, since his conviction, a jury shall be empaneled as in ordinary Criminal cases to try the question of insanity.”

,.Hon. R. A. Smoot Scmhid - Page 2 

### (V-712)

8’Information to the Judge of the Court
as provided in Article 921 of the Code of Criminal Procedure of the State of Texas as to the insanity of a defendant, shall consist of the affidavit of the Superintendent of some State Institution for the treatment of the insane, or the affidavit of not less than two licensed and regularly practicing physicians of the State of Texas, or the affidavit of the prison physician or warden of the Penal Institution wherein the defendant is in prison, or the County Health Officer of the County where the defendant was finally convicted, which affidavits, If made, shall state that after apersonal examination of the defendant, it Is the opinion of the affiant that the defendant is ‘insane, and said affidavits shall, in addition thereto, set forth the reasons and the cause or causes which have justified the opinion.”

The Texas Court of Criminal Appeals has construed Article 921 manytimes and has repeatedly held that it contemplates that the issue of Insanity arising after conviction should be tried and determined by the court in which the conviction occurred and that such court has exclusive jurisdiction to try the issue. Bland v. State, 132 S. W.2d

### 274;McKibben v. State, 

### 148 S. W.2d423, and authorities there cited. Wequote from the Bland Case.

“Wecall attention to the following situation regarding the insanity question. The judgment of conviction was rendered in the District Court of Lubbock County, Texas, on March 23, 

### 1939,and sentence pronounced on the same day, at which time appel$l.;tt$;;e notice of appeal to this court. script was filed in this court onApril 21, and the statement of facts was filed in this’ court onJune 26. The record here does not showthat appellant was released onbail pending his appeal. Attached to appellant’s motion to retire this cause from the docket is
ajudgment 

### ofthe County Court of Haskell County declaring appellant to be insane; said judgment bearing date of May15, 

### 1939.

“Article 921, CCP

. . . provides as follows: ‘If at any time after conviction andHon. R. A. Smoot Schmid - Page 

### 3 (V-712)

by the manner and method as hereinafter provided,, it be madeknown to the Judge of the Court in which the indictment has been returned, that the defendant has become insane, since his ctinvlction, a jury shall be empaneled as in ordinary Criminal cases to’lry the QUEsTION,OFINSANITY.’ It has been held that the District Court in which a defendant was convicted has exclusive jurisdiction to try the issue of insanity arisin after conviction. Ex arte Milllkin, 10i Tex. Cr. R. 121, 

### 299S. W.

### e33;Fixparte Davenport Cr. R. 

### 326,7s. w. 26 

### 589 From the, opinion onrehear 1

### 60A.'L%.T~~~3'. ng in Escue~v. State, 88Tex. Cr. R, 

### 447,227S. W.

### 483;' It appears that a very similar question arose as Is before us in the present case. Escue had been convicted of afelony In Shackelford County. Pending his appeal to this court he was adjudged insane in the County Court of TravisYntyThe judgment of conviction was afflrm-

. Heattached to his motion for rehearing a copy of the .insanity jud,gment
,,asking’ us to withhold mandate should ~,his motion for. rehearing be overruled. This wedeclined to do upon the theory that the c,ourt in which his ~conviction-occurred would upon a proper showing protect appellant in his statutory rights. In view of the statute and decisions referred to it would appear that the issue of insanity after conviction should have been determined in the District Court of Lubbock County, where appellant was convicted, and not in the County Court of Haskell County, and that the insanity judgment 3-nthe latter court Is not controlllng.l’

In the. McKlbben Case, the Court, amongi’other things, said:

“Under the provision ofArticle 921,

. . It is contemplated that the issue of Insanity after conviction should be tried and determinedby the District Court in which the convictlon occurred.”

In view of the foregoing, weanswer your questions as follows:Hon. R. A. Smoot Schmid - Page 4 

### (V-712)

Aconvict, whobecomes insane while out of the penitentiary onparole, conditional pardon, or reprieve, is within the purview of Article. 921, and the issue of his insanity can be tried and determined only in the District Court in which hewas convicted, and then only when his application for atrial as to his Insanity, acqompanied by one or more of the af,fidavlts required byArticle 922, is presented to ‘the Judge of the Court. Dotson v. State, 

### 195S. W. 2d 87.

The fact that a convict becomes insane while out of,the penitent lary onparole, conditional pardon, or

not deprive the District Court in which he reprieve does
was convicted determine the of Its-exclusive jurisdiction totry and

issue of his insanity.

SUMMARY
The Issue of a convict’s insanity, arislng while he Is out of the penitentiary on parole, conditional pardon, or reprieve may be tried and determined only in the District Court in which he was convicted. McKibben v. State, 

### 148S. W.2d 274, and authorities therein cited. Such issue maybe tried and determined without a revocation of the parole, conditional pardon, or reprieve granted to him. Art, 

### 921,v.c.c.P.

Yours very truly,

ATTORNEY

GENERAL

OFTEXAS

BWB:wb BY Bruce W.Bryant, Assistant

ATTORNEY

GENERAL

’