Untitled Texas Attorney General Opinion

Mr. John H. Winters Opinion No. w-796 Commissioner Department . - of Public Welfare Re: &uestions Toncerning AUStln, WXaS tne legal determination of restoration of recip- ients of public assist- ance, who have been judicially declared to be of unsound mind or mentally incompetent, under provisions of the Texas Mental Health Code. Dear Mr. Winters: You have requested an opinion of this office relative to the effect of a discharge from a mental hospital of a patient who has been theretofore adjudicated by a court to be mentally incompetent. The questions call for an interpre- tation of certain provisions of the Texas Mental Health Code (House Bill No. 6, Acts of the 55th Legislature, Regular Session, 19 7, Chapter 243, page 505, Codified as Articles 5547-l through 5527-104 of Vernon's Annotated Civil Statutes, which became effective January 1, 1958). Specifically, you asked the following questions: "1. If the person was adjudged to be of unsound mind or mentally incompetent by a court prior to the effective date of House Bill No. 6, Acts of the 55th Legislature, Regular Session, 1957 (January 1, 1958)and was discharged from the state hospital prior to that date, is the certificate from the superintendent of the state hospital suffi- cient to restore the civil rights of that individual so that he may receive, endorse, and expend his ptlblicassistance check with- out a guardian or without a judicial deter- mination of his restoration? 'k2. If the person was adjudged to be of unsound mind or mentally incompetent by ..0 _. 14 : ‘. : ; Mr.. John R. Winters,. page 2 (w-796) I ‘. a court prior to the effective date of,Douec Bill No. 6 and was discharged by the”atate ’ hospital aftef the effective date of Houee Bill No. 6, ia the certificate from the auper- intendent of the atate hospital aufflclent to .I. .,, restore the civil rights of that lndlvldual 80 that he may receive, endorse, and expend his public assistance check wibhout a guardian or without a judicial detertiinatlon of his ., restoration? .. “3. If a person wae adjudged, to be ‘mentally Incompetent’ by a court after the . effective’ date of House Bill No. 6 and was discharged from the &ate hospital, after that date, 18 the certificate from the su- .perlntendent of the-‘&ate hoepital eufflclent to restore the civil rights’of,that indlvl- dual BO that he may receive, endorse’; an& ex- pend his public aeslstance check without a guardian or wlthouta Judicial determlnatlon of his restoration?” You inform u8 in your opinion request that it ha8 been the policy of the Department of Public Welfare to require, with respect to all three classes of persons above ~mentloned, either .~the appointment of a guardian for the incompetent, or an order ‘.*of restoration from the court, as a prerequlslte to the making of pub+ assietance payments. It Is obeerved,that the Depart- ment adopted such bplicy merely In pursuance of ite general duty and authority to administer program7 of public aealatance effec- j tively and in accordance with the~,purpoeee of the respective enabling statutes, purposes which would douhtleee be thwarted in case of a recipient who wa0, for Borne reason, incapable of ‘, ,. receiving and disposing of hla, aeaiatance check in a reasonable and responsible-manner. Since such policy.apparently doea not stem from an express prohibition, Federal or State, against making payments of public assistance funds to pereone deemed to be incompetent, the following ~opinion is oonfined to the le- gal effect of a discharge~of a pereon,from a mental hospital, under the Texas Mental Health, Code. ‘~ Your questions deal with two eubjects: .the appointment of guardians for incompetents, and the reetorationot the civil righta of incompetents. Flrst,~we will,briefly dispose of the question insofar a8 it, relates to the appointment of guardians. Mr. John H. Winters, Page 3 (Ww-7%) Neither the adjudication, commitment to a state hospital, nor a discharge therefrom, under and',byvirtue of any pro- vision of the Texas Mental Health Code, has any effect upon the appointment of a guardian. Guardianship matters : are controlled by the provisions of the Texas Probate Code, (Sections 1.08,et seq;and 415, etseq).~ The Texas Mental Health Code specifically provi.des,in Section 5547-84, as follows: "No action taken nor determinationmade under this code and no provision of this code shall affect any guardianship established in accord- ' ante with law." (See also Attorney General's Opinion No. W-330 for a further discussion of guardianship matters.) It might be noted, however, that the Texas Probate. Code now authorizes the appointment of a guardian, not only for "incompetents", but also, "for persons where itis nec'- essary that a guardian be appointed to receive funds from any overnmental source'or agency" (~Section4, Texas Probate Code$ . And Section 114 of the Texas Probate Code, in setting out the facts which must exist before a guardian may be ap- pointed, provides in the .caseof "a person for whom it is necessary to have a guardian appointed to receive funds due such person frosnany governmental source" that, "a certifi- cate of the executive head, or his representative of the bureau, department, or agency of the government through which such funds are to be paid, to the effect that the ap- pointment of a guardian is a condition precedent to the pay- ment of any funds due such persons, shall be prima,facie evidence of the necessity for such'appoin'cment." Thus,.the same facts re~lativeto the mental ccnpetency ?f a person, as determined by the head of a mental hospital, might also be used as evidentiary facts in a guardianship proceeding brought under the provisions of the Texas Probate Code. Secondly, your question concerns restoration to mental competency Jr sanity of a person thereto adjudicated by a court to be mentally incompetent or of unsound mind. Prior to the adoption of the Mental Health Code, it was well settled that the adjudication by a court that~a person was of unsound mind, or mentally incompetent, established the status of that person as of that time, and that such adjudi- cation gave rise to a presumption that such person so adju- dicated continued to be of unsound mind, or mentally incom- petent, until such presumption might later be rebutted in a proceeding brought for that purpose. (That is, brought un- Mr. John H..Wlnters, page 4 (WW-7%) derthe so-called restoration statutes.) This rule was' stated In the case of Elliott v. Elliott, 208 S.W.2d 790 (Civ.App. 1948, error ref. n.r.e.) as follows: "The implication of the holdings in Williams v. Sinclair- Prairie Oil Co., 135 S.W.2d 211 (Civ.A p. 1939, error re ., u gm. car.); Bagel v. White, 16I;S.W.Zd 309 (Civ. App. 1943, error ref. W.-ton v. Stewart, 191 S.W.2d 798 (CiV.Ap 1945); and- 94 S.W.2d adjudica ion of insanity 411 (Civ.App. 1946P', is that an --=3- by the county court raises a continuous rebuttable pre- sumption of insanity, and that only a judgment of restora- tion of sanity, entered in a proceeding brought for that purpose, will be sufficient to conclusively remove such rebuttable presumption." The question raised now is, did the Texas Mental Health Code change the above law? The applicable pro- visions of the Texas Mental Health Code on the matter are as 'follows: wt. 5547-al., Effect - of Discharge (a) . . . (b) The discharge of a patient who has been found to be mentally incompetent terminates the presumption that he is men- tally Incompetent." (Acts 1957, 55th Legislature, page 505, Chapters 2 and 3.) Art. 5547-82 of the Texas Mental Health Code provides a procedure for a hearing and an adjudication of the question of restoration and discharge of a patient still committed to a mental hospital. It might be noted here that sub- section (e) of this Art 6-- cle which provided, "The hearing shall be before the court without a jury" was held to be unconstitutional in the case of Swlnford v. Logue, 313 S.W,.2d547 (Civ.App. 1958, Writ dism. on application of petitioner)._7 And finally, Article 5547-83, (as amended by Acts 1959, 56th Legislature, page 887, Chapter 409) now pro- vides as follows: "(a) The judicial determination under this Code that a person is mentally lncom- petent creates a presumption that the person continues to be mentally incompetent until he Mr. John H. Winters, Page 5 (W-796) is discharged from the mental hospital or until his mental competency is re- determined by a court. (b) The judicial determination that. a person is mentally ill or the admission or commitment of a person to a mental hos- pital, without a finding that he is men- tally incompetent, does not constitute a determination or adjudication of the men- tal competency of the person and does not abridge his rights as a citizen or affect his property rights or legal capacity. (c) When any person under the pro- visions of this Code shallhave been com- mitted as a patient to a mental hospital for any p,eriod,regardless of duration, by order of a county court, and shall have been discharged and released by such hos- pital, such person may file application with such county court for an order adju- dicating that he is not now mentally ill or incompetent, to which application shall be attached a certification attesting to such facts, signed by an attending physi- cian at the hospital to which such patient was committed. The court may enter an order granting such application; but, in connection therewith, he may conduct a hearing and summon such witnesses as in his judgment may Abe necessary to satisfy him as to the merits of the application." As amended Acts 1959, 56th Leg., p. 887, ch. 409, % 1. Subsections (a) and (b), supra, were contained in the ori- ginal Code as ado ted in 1957, (effective January 1, 1958), but subsection (cP was added in 19%. Such subsection pro- vides a procedure for an order of the court adjudicating that he is not now mentally ill or incompetent after dis- charge from a mental hospital. It is the opinion of this office that, under the Texas Mental Health Code, a discharge from a mental hospi- tal, does not, in itself, effect a restoration of a mentally incompetent person. Such act, that is, a discharge from the mental hospital, merely "terminates the presumption that he is mentally incompetent." An action in the county court is still necessary to adjudicate that question. The Code, as Mr. John H. Winters, page 6 (w-796) -. . sets out the procedure for amended in 1959, specifically -. such adjudication aster alscnnrge rrom the mental hospital, The emergency clause the above auoted Article 5547-83, provided; "sec. 3, The fact that there is not now-any pro- vision for judicial restoration of persons adjudged mentally incompetent under the Texas Mental Health Code, creates an emergency . . . etc." Had the Legislature intended that a discharge from the hos ital to be tantamount to a restora- tion, then subsection "i c), supra, would be superflous. All three of your inquiries ask the common question: "Is the discharge and the certificate from the superintend- ent of the hospital sufficient to restore the civil rights of that individual . . .?'I The answer, as to all three situations, is: The dischar e and the certificate of the +self superintendent does no , , affect such restoration. Such e.ctsmerely terminate the presumption of mental incom- petency existing by reason of the original adjudication. There is a distinction between an adjudication of a fact by a court (i.e., a restoration), on the one hand, and a "termination of a nresumption" by an act of the head of a hospital, on the other hand. With respeCt to the time when such acts took place (that is, the time of the orlginal adjudication and dis- charge), and whether the old law or the new Code would apply, you are referred to Article 5547-100, which provides: "This Code applies to any conduct, trans- action or proceeding within Its terms which occurs after the effective date of this Code, whether the patient concerned in the conduct, transaction or proceeding was admitted or com- mitted before or after the effective date of this Code. In particular, the discharge under this Code of any patient committed to a mental hospital under the prior law terminates any presumption that he is mentally incompetent. However, a proceeding for the commitment of a person to a State mental hospital begun before the effective date of this Code is governed by by the law existing at the time the proceeding was begun and for this purpose the law shall be treated as still remaining in force. Unless these proceedings are completed within nine (9) months after the effective date of this Code they shall be governed by the provisions of this Code." Acts 1957, 55th Leg., p. 505, ch. 243, 8 100. . . Mr. John H. Winters, page 7 (w-796) Thus when a person was adjudicated mentally incom- petent (or unsound mind) and discharged, both prior to the effective date of the Texas Mental Health Code (your ques- tion No. l), the Code is not controlling since it states in express terms that the Code applies to any conduct, trans- action'or proceeding within its terms which occurs after the effective date. The Code would apply to the fact situations stated in your questions 2 and 3, since it states as follows: "This Code applies to any conduct, transaction or proceeding within its terms which occurs after the effective date of this Code, whether the patient concerned in the conduct, transaction or proceeding was admitted or committed before or after the effective date of this Code . . .'I We now allude briefly to the two examples of Certifi- cates of Discharge mentioned in your letter. Such Certifi- cates are provided for in Article 5547-80, subsection (d), which provides: "Upon the discharge of a patient, the head of the mental hospital shall prepare a Certificate of Discharge stating the basis therefor . . ." We agree that, in at least one example, the superin- tendent did not purport to express an opinion as to the patient's restoration or recovery. However, it is the fact of the discharge from the hospital, and not the issuance of such Certificate, which has the effect of terminating the presumption of mental incompetency. Subsection (b) of Article 5547-81 states, "the discharge of a patient who has been found to be mentally incompetent terminates the pre- sump,tionthat he is mentally incompetent." In this con- nection, Article 5547-g of the Code authorizes the Board for Texas State Hospitals and Special Schools to, "prescribe the form of applications, certificates . . . provided under this Code and the information required to be contained therein." SUMMARY (1) A person judically declared to be of unsound mind and committed to a State hospital, and subsequently discharged therefrom, all prior to the effective date of the Texas Mental Health Code (January 1, 1958), in order to be restored to legal competency, must proceed in the ^ . Mr. John H. Winters, page 8 (ww-796) .. court in a restoration pro- county ceeang now provided by law Article 5547-83, Section (3) of the c odg, and his discharge has no le- gal effect upon the evidence or proof required to determine his mental status. (2) A person adjudicated by a court to be mentally incompetent, whether before or after the effective date of the Texas Mental Health Code, and discharged from the mental hospital after the said date (January 1, 1958), -likewise proceed, in court, as rovided in Article 5547-83, Section ? cl, to be legally adjudicated mentally competent, but such person would be presumed to be mentally competent. Very truly yours, WILL WILSON EMcV:jf:pm APPROVED: OPINION COMMITTEE W. V. Geppert , Chairman Cecil C. Cammack, Jr. Marvin H. Brown, Jr. Jot Hodges, Jr. Leon F. Pesek REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore