THE ATTORNEY GENERAL
OF%%XAS'
The Honorable Kenneth D. Gaver Opinion No. H-779
Commisrioner
Texas Department of Mental Health Re: Commitment and
and Mental Retardation detention of defendants
P. 0. Box 12668, Capitol Station found to be incompetent
Austin, Texar 70711 to stand trial or not
guilty by reason of
insanity.
Dear Doctor Gaver:
You have repueeted our opinion regarding the applica-
bility of rev.i,eed
article 46.02, Texas Code of Criminal
Procedure, to those pereona committed under its former
provisions.
Article 46.02 ertabliehes a procedure by which persons
who have been determined incompetent to stand trial are
committed to a mental health facility for a period not to
exceed twelve montha. Whenever the head of the facility
believes that a committed defendant ha8 attained competency
to stand trial, or believer that there is no eubstantial
probability that the defendant will attain euch competency
within the foreseeable future, or, in the alternative, after
the defendant haa been committed for a period of twelve
montha, the defendant may be tried, released, or subjected
to civil commitment proceedings, whichever is appropriate.
Unlike the procedure under the old statute, the defendant is
not subject to repeated orders of temporary commitment.
Sec. 5(h). Furthermore, the court no longer has the authority
to confine a defendant for longer than one year under the
temporary conunitmentprocedure. Sec. 5(e). you first ask
when the twelve month period provided in section 5 of article
46.62 begin6 to run with respect to a person who, pursuant
to the former statute, had been found insane at the time of
trial and ha& been committed to a mental health facility
prior to June 19, 1975, the effective date of the revised
statute.
p. 3209
The Honorable Kenneth D. Gaver - page 2 (H-779)
Initially, we observe that revised article 46.02 may be
characterized as remedial legislation, and, as such, not
subject to the constitutional inhibition against the passage
of retroactive laws. Holt v. Wheeler, 301 S.W.Zd 678, 680
(Tex.Civ.App. -- Galv~n~9~t dism'd) . A remedial
law is one which is
designed to correct an existing law,
redress an existing grievance, or
introduce regulations conducive to
the public g00a.
The term may also be used to describe
those statutes or amendments which
apply to procedural matters rather than
to-substantive rights. Rookled e v.
Garwood, 65 N.W.28 795, 7d."T954).
See 73 Am.Jur.2d Statutes 9 11. In our opinion, the revision
rarticle 46.02 may be fairly deemed to be remedial in
nature. Its only effect is to limit the period of a defen-
dant's temporary oommitment and to establish procedures for
further disposition. It corrects procedures which the'
Legislature apparently regarded as defective, but it does
not affect any person's substantive rights.
Revised article 46.02 completely replaced its prede-
cessor. Acts 1975, 64th Leg., ch. 415, p. 1095. Since
there is no constitutional bar to the retroactive applica-
tion of revised article 46.02, and since the revised statute
was the only one in effect after June 19, 1975, we conclude
that persons already committed at the time the statute
became effective were, after such date, being held pursuant
to the terms of the revised statute. As a result, the
twelve month period must be deemed to have begun to run on
the date such persons were actually committod. Likewise,
since the revised statute is fully applicable to persons
already committed on June 19, 1975, we believe that the
prohibition of section 5(h) of article 46.02 prevents the
recommitment of such persons under a temporary commitment
procedure.
p. 3290
The Honorable Kenneth D. Gaver - page 3 (M-779)
SUMMARY
The twelve month period provided for in
section 5 of article 46.02, Texas Code
of Criminal Procedure, began to run, as to
all persons committed prior to the effec-
tive date of the revised statute, on the
date such persons were actually committed.
A court is now prohibited by section 5(h)
from temporarily recommitting any person,
regardless of when such person was initially
committed.
truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 3291