Untitled Texas Attorney General Opinion

T Hon. Larry 0. Cox Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas Opinion No, V-1454 Re: Legality of accepting day students at Austin State School who have not been committed by Dear Sir: a county co~urt. Your request for an opinion reads in part as follows: "We desire the opinion of yo'urof- fice regarding the legality of accepting, educating, and instructing feeble-minded day students at the Austin State School, without having them committed by a co.unty court. "The Board for Texas State Hospitals and Special Schools at a special meeting on February 25, 1952, approved a plan to edu- cate such feeble-minded day students, sub- ject to a favorable opinion from your de- partment. "The day st,udentswo,uldcome within the definition of feeble-minded children as defined In Article 3233 (V.C.S,), but they would not be committed and wouqd re- turn to their homes each day after classes. They wo,uldattend the same classes as the committed cases. "The Board has some doubt as to Its legal power,or authority to train s~uchstu- dents without commitment, and your opinion is necessary on account of the conflict;- ing views of the Board Members. D e a -.- Hon. Larry 0. Cox, page 2 (V-1454) The control and management of the A,ustin State School, a State institution for the care of feeble-minded persons, is vested in the Board for Texas State Hospitals and Special Schools. Arts. 317413,Sets. 2 and 3, 3177, and 3234, V.C.S. Its operation Is financed by biennial appropriations out of the general revenue and local funds of the institution. H.B. 426, Acts 52nd Leg. R.S. 1951 ch. 499, Art. II, at p- 1257;'Art. 3236, V.C.S. bn- der Section 5 of Article 3174b, the Board may pro- mulgate such rules and regulations as It deems proper for the efficient administration of the institution, Articles 3233 through 3238, V.C.S., have specific application to the admission and care ,of the feeble-minded in the Austin State School. For the purpose of those statutes, a feeble-minded child is defined in Article 3233 as follows: "A feeble minded child . . D is one of such feeble mental or moral powers as to be ,unableto profit by the ordinary methods of education as employed in the common schools." With respect to the admission of the feeble- minded in that School, Articles 3235 and 3238 are ap- plicable. They provide: Article 3235 - "The Board shall pro- vide accomodations for only such number of inmates from year to year as can be advan- tageo,usly cared for with the appropriation granted for that year, giving preference first to girls and women of child bearing age, and to those of both sexes who are most likely to profit by the special educa- tion and training." Article 3238 - "In all cases in which the parent or guardian of a feeble minded person is financially able to pay the ex- penses of supporting and training such feeble minded person in the school, in whole or in part, he shall be required to do so. In all other cases there shall be no fees or charges." Article 3236 then provides in part: . .. - Hon. Larry 0. Cox, page 3 (V-1454) "All persons committed or admlt- ted to said institution shalTremaIn Fits oustody as permanent wards,of this State until released by the manage- ment thereof. The superintendent and Board may in their discretion e . D at any time, parole any such person in the custody of parent or guardian for an in- definite period. D . .' (Emphasis ours.) Thus, in the laws pertaining to the Austin State School there is fo,undno provision which.req,uires that a feeble-minded child, as therein defined, must be adjudged and committed by a court as such, before he may be admitted to that institution. Articles 3867 through 3871, V,C.S., are the procedural laws providing for the adjudication and commitment of the feeble-minded to the Austin State School by a proper co,untycourt. Article 3871 reads as follows: "If such.person be found to be feeble minded, the court shall enter its order SO adjudging him, and that he be committed to the c,ustodyof the Austin State School. Upon the entry of such order, the court shall cause to be prepared a transcript of the proceedings and'evidence, which shall show the age, sex, race, status and mental condition of the patient, . . . and transmit the same to the superintendent of such school. If the patient is entitled to be received into the school, and there Is sufficient room therein, the superintendent shall notify said judge thereof, whereupon the .judge shall arrange to send such person to said school in like manner in all re- spects as is provided for the sending of insane patients to an asylum." It Is pertinent to note that Articles x867-71, which have their origin in Senate Bill 321, Acts 38th Leg., R.S. 1923, ch. 82, ps 172, were enacted several years after the laws governing admissions into the Austin State School. H.B. 73, Acts 34th Leg., R.S. 1915, ch. 90, p0 143. Sec- tion 10 of Senate Bill 321, s'upra,specifically .^ .. . _ Hon. Larry 0. Cox, page 4 (V-1454) provides that the adjudication-commitment law "shall not suspend the right to have feeble minded persots admitted to such institution under existing laws. The statutes respecting the Austin State School for feeble-minded persons and commitment of patients thereto should be liberally construed in order to accomplish beneficent and humanitarian objectives thereof as nearly as possible. Schultz vi Brown 152 S.W.2d 801 (Tex. Clv. App. 1941,'error di8m.j. Accordingly, it is our opinion that the governing board of the Austin State School may legal- ly accept, educate and instruct feeble-minded ,children, as defined in Article 3233 and authorized in Article 3235, without their having been committed by a county court, subject to the laws concerning their admission in that institution. Since Article 3236 permits the release of admitted persons Taothe custody of a parent or guardian for an Indefinite period, such non-committed children may, at the discretion of the Board, be permit- ted to return to their homes each day after special edu- cation: SUMMARY The Board for Texas State Hospitals and Special Schools may legally accept, educate and instruct in the Austin State School feeble-minded children, as defined in Article 3233, V.C.S., without their having been committed by a county court, subject to applicable laws concerning their admission. Art. 3235, V.C.S. At the Board's discretion, such admitted children may be permitted to ret.urnto, their homes each day after classes. Art. 3236, V.C.S. Yours very truly, APPROVED: PRICE DANIEL Attorney General E. Jacobson Reviewing Assistant Bym 2x%=-&J Charles D. Mathews First Assistant Chester E. Ollison Assistant CEO:mh