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 of Articles 

921 and 922, Vernon’s Code 

of Criminal Procedure, 

pertaining to trial of is9~6~ of, Insanity arising 

after conviction. 

Dear Sir: 

Since we received 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 ore courts have jurlsdlction to try the issue of insanity of a convict arising while he Is out of the penitentiary on parole, a conditional pardon, or 

reprieve? 

~2. Is ~itnecessary for the convict’s 

parole, conditional pardon, or reprieve to 

be revoked before the court may try. 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 a personal 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 many times 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. 2d 423, and authorities there cited. We quote 

from the Bland Case. 

“We call 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 on April 21, 

and the statement of facts was filed in this’ 

court on June 26. The record here does not 

show that appellant was released on bail pending his appeal. Attached to appellant’s motion to retire this cause from the docket is 

a judgment of the County Court of Haskell 

County declaring appellant to be insane; said 

judgment bearing date of May 15, 1939. 

“Article 921, CCP . . . provides as follows : ‘If at any time after conviction and 
Hon. R. A. Smoot Schmid - Page 3 (V-712) 

by the manner and method as hereinafter provided,, it be made known 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 ,OF INSANITY. ’ 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, 10 i Tex. Cr. R. 121, 

299 S. W. e33; Fix parte Davenport 

Cr. R. 326, 7 s. w. 26 589 

From the, opinion on rehear 1 

60 A.'L%.T~~~3'. 

ng in Escue~ v. 

State, 88 Tex. Cr. R, 447, 227 S. W. 483;' It 

appears that a very similar question arose as 

Is before us in the present case. Escue had 

been convicted of a felony In Shackelford County. Pending his appeal to this court he was 

adjudged insane in the County Court of Travis 

YntyThe judgment of conviction was afflrm- 

. He attached 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 we declined 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-n the latter court Is not controlllng.l’ 

In the. McKlbben Case, the Court, amongi’other 

things, said: 

“Under the provision of Article 921, . . 

It is contemplated that the issue of Insanity 

after conviction should be tried and determined by the District Court in which the convictlon occurred.” 

In view of the foregoing, we answer your questions as follows: 
Hon. R. A. Smoot Schmid - Page 4 (V-712) 

A convict, who becomes insane while out of the 

penitentiary on parole, 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 he was convicted, and then only when 

his application for a trial as to his Insanity, acqompanied by one or more of the af,fidavlts required by Article 

922, is presented to ‘the Judge of the Court. Dotson v. 

State, 195 S. W. 2d 87. 

The fact that a convict becomes insane while 

out of, the penitent lary on parole, conditional pardon, or 

reprieve does not deprive the District Court in which he 

was convicted 

determine the 

of Its-exclusive jurisdiction to try 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, 148 S. W. 2d 274, and authorities therein cited. Such issue may be 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 OF TEXAS 

BWB:wb 

BY 

Bruce W. Bryant, 

Assistant 

ATTORNEY GENERAL ’