Honorable Jess M. Irwin, Jr. Opinion NO. C-560
Executive Director of Texas
Department of Mental Health Re: Whether the head of a
and Mental Retardation state mental hospital may
Austin, Texas continue to transfer, fur-
lough and discharge after
January 1, 1966, a patient
committed to the hospital
under the provisions of
Article 932b of the Code
Dear Mx+.Irwin: of Criminal Prooedure.
In a recent opinion request of this office you request
our opinion and advice as to the following questions:
(1) May the head of a state mental hos-
pital continue to transfer, furlough and dis-
charge, after January 1, 1966, patlente com-
mitted to said hospital under the provisions
of Article 932b, Vernon!8 Code of Criminal
Procedure.
'(2) In the event that the head of a state
mental hospital may not, after January 1, 1966,
lawfully transfer, furlough, and/or discharge
a person,committed to his hospital under Artl-
cle 932b, then must the head of said hospital
release such person according to the provisions
of Article 46.02, Vernon's Code of Criminal Pro-
cedure, 1966, which becomes effective January
1, 1966.
(3) If neither Article 932b, nor Article
46.02, prescribe the manner by which the head
of a state mental hospital is to release a
person committed to said hospital in accord-
ance with the p~vlslons of Article 932b,
prior to January 1, 1966, then may the head
of said state mental hospital, after January
1, 1966, transfer, furlough and/or discharge
such person under the procedures outlined by
-2705-
Honorable Jess M. Irwin, Jr., page 2 ~(~'560)
the pertinent provisions of the Texas Mental
Health Code, codified as Articles 5547-l
through 5547-104, Vernon's Civil Statutes.
On January 1, 1966, the Code of .Crlminal'Procedure of
Texa6, 1966, Acts 1965, 59th Legislature, Chapter 722, be-
comes effective. Article 54.02 ~of said Code,repeals old Artl-
cle 932b, which,is effective until that date. Section 2 of
Article 932b provides as follows:
"A person committed to a State mental hos-
pital under this Act upon a jury finding of
Insanity at the time of trial who hasbeen ac-
quitted of the alleged offense is not by reason
of that offense a person charged with a crlml-
nal offense, and therefore the head of ,the
mental hospital to which he is committed may
transfer, furlough and discharge him.and shall
treat him as any other patient aommltted for
an. Indefinite period."
As has been previously stated, said Article 932b, as
of January 1, 1966, will be replaced by Article 46.02. Sec-
tion 3 of said Article 46.02 provides as follows:
"A person committed to a State mental hos-
pital under this Article upon a jury finding
of Insanity at the time of trial who has been
acquitted' of the alleged offense Is not by
reason of that offense a person charged with
a criminal offense. In the event the head of
the mental hospital to which he Is committed
Is of the opinion that the person Is sane, he
shall so notify the court which committed the
person to the State mental hospital. Upon re-
ceiving such notice, the judge of the commit-
ting court shall lmpanel a jury to determine
whether the person is sane or Insane. If the
jury finds the person Is sane, he shall be re-
leased. If the jury finds the person is insane,
then Court shall order his return to the State
mental hospital until he~is so adjudged to be
sane at a subsequent jury trial in such com-
mitting county.
We answer your first question in the negative. Since
Article 932b, supra, presently Is the authority for a director
-2706-
Honorable Jess M. Irwin, Jr., page 3 (C-560)
of a state mental hospital to transfer, furlough, and/or dls-
charge a patletit, its repeal as of January 1, 1966, will ex-
tinguish such authority. Aa of that date, the director will
have no authority to transfer, furlough, and/or discharge a
patient.
We answer your secofid quo&ion in the affirmative. As
of January 1, 1966, the head of a atate mental hospital must
follow the procedure outlined in Article 46.02, with regard
to the discharge of all persons admitted to said hospital
~;r;g gder the procedure outlined in Article 932b, or Artl-
It is apparent, of course, that there will be some
person; admitted to said hospitals under 932b, supra, and who
remain in said hospital until after January 1, 1966, and that
Article 46.02, supra, was not even in existence at the time
of their adm%ssion. It is our opinion, however, that such
persona1 rights would not be violated in any iray by their
having to comply with Article 46.02 in order to obtain their
rlease from said hospital. The change brought about by Artl-
cle 46.02 is procedural only, and said person8 who were ad-
mitted to the hospital under 932b, supra, would not be deprived
of any eubstantlal rights by their having to follow the pro-.
cedure outllned in 46.02. Sinclair v. State, 261 S.W.2d 167
(Tex. Crlm.? 1952), cert .den. 1~3,~ No one has a vested right
in particular remedies or modes of procedure. Mrous v. State,
21 S.W. 764 (Tex.Crlm:.1893); Jamea v. State, 163 S W bl \T .
Crlm. 1914). Also, Lhangea in remedies may be made*&allabl~
to trials for offense8 committed before the law making the
change takes effeot,and to all proceedings pendlng at the
time of their enactment. Barnett.v. State, 63 S.W. 765 (Tex.
Crlm. 1900);. Odenthall v. State, 2yo S.W. 743 (Tex.Crim. 1926).
Also, attention is invited to Artlcle’1.02 of the new
Code of Criminal Procedure, which 1s as follows:
“This code shall’.take effect and be In
fotie on and after January 1, 1966. The
procedure herein prsscrlb8d shall govern
all criminal proceedings lnatituted after
the effective date of this Act-and all pro-
ceedings pending upon the effective date
hereof Insofar as are applicable.”
In addition to the authorltlea cited above, it is our
opinion that Article 1.02-would require that the procedure out-
lined In 46.02 be followed with regard to persons admitted to’,
state mental hospitals under.Article 932b, prior to January 1,
1966.
-2707-
Honorable Jess M. Irwin, Jr., page 4 (c-560)
In view of the fact that we have answered question num-
ber two (2) In the affirmative, stating that Article 46.02
must be followed with regard to persons admitted to state men-
tal hospital under 932b, the third question posed by your opln-
ion request becomes immaterial. Article 46.02, rather than the
Texas Mental Health Code, should be followed with regard to
disposition of persons admitted to state mental hospitals under
Article 932b, supra.
SUMMARY
After January 1, 1966, the head of a state
mental hospital may not continue to transfer,
furlough, and/or discharge patients committed
to the hospital under the provisions of'Arti-
cle 932b. Article ,46.02, supra, should be
followed with regard to the disposition of
such patients.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
orney General
SLK/lh/br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Charles B. Swanner
Tom Routt
W. 0. Shultz
Scott Garrison
APPROVEDFOR THE ATTORNEY
GENERAL
B9: T. B. Wright
-2708-