AUSTIN. TEXAS
April 3,1950
Hon. R. A. Smoot Schmid Opinion No. V-1 029
Chairman
Board of ~Pardons and Paroles Re: The legality of extending
Austin, Texas clemency to a convict who
is now confined in a Veterans
Administration mental hos -
pita1 while on a temporary
reprieve from the State peni-
Dear Sir: tentiary.
Your request for an opinion reads as follows:
“Application has been made to the Board of Pardons
and-Paroles for a recommendation for further clemency
to a convict who is now confined in the Veterans’ Hospi-
tal at Waco. This man is held in the Hospital, under re-
straint, by virtue of a lunacy conviction had in the County
Court of McLennan County.
“While subject was confined in the State Penitenti-
ary at Huntsville, under a felony conviction in Tom Green
County, it was made known to the Board by the Prison
Psychiatrist that subject needed treatment for a mental
disorder which the Prison System was not equipped to
give. Since this man is a veteran of World War II, it
was suggested .that he could get the proper treatment
in a veterans hospital.
“The Board recommended, and the Governor grant-
ed, clemency in the nature of a six months’ reprieve.
Subject was ‘reprieved to’ the Texas Veterans’ Affairs
Commission, and was by the Commission turned over to
the Veterans’ Administration Hospital at Waco. Because
subject needed to be restrained, the Hospital would not
keep him until he had been legally adjudged insane.
.
Hon. R.,A. Smoot S&mid. Page 2, V-1029.
Accordingly, he was tried for and convicted of lunacy
in the County Court oft McLennan County, and was com-
mitted to the Veterans’ Hospital.
“We realize
that as long as this man is deemed
insane; under a valid judgment of conviction, he could
not legally accept any clemency extended to him. -How-
ever, in view of the provisions of Article 3186a, V.C.S.,
relating to the trial of insane convicts in the ~County
Court of Walker County, and the provisions of chapter
one, title 12, CCP. relating to ‘Insanity after Convic-
tion,’ the question arises as to whether the adjudica-
tion of lunacy by the County Court of McLennan Coun-
ty was a valid one so as to prevent subject’s accept-
ing any clemency that might be extended to him.”
Accompanying your request is a certified copy of the com-
plaint in lunacy filed in the County Court of McLennan County agajnst
subject veteran, and you have advised us that the person who made
this complaint is a Deputy Sheriff of McLennan County.
A determination of the question submitted would seem, as
indicated by you, to involve the applicability of Article 3186a, V.C.S.,
and the,provisions of Chapter One, Title 12, (Articles 921, et seq.),
V. C. C. P;~; to the stated facts. We do not believe, however, that
Article 3186a is applicable here.
This Article provides, in part, as follows:
“Sec. 1. “When any prisoner confined in the State
Penitentiary becomes insane, he shall be treated by
the prison physician at Huntsville and shall be observ-
ed by said physician and the Warden of the Penitenti-
ary; and when, in the judgment of said physician or
Warden, such convict is insane and should be transferr-
ed to one of the State Hospitals for treatment of the in-
sane, then either said prison physician or said warden
shall go before~,the County Judge of Walker County,
Texas, and make affidavit to said fact, and the County
Judge shall forthwith proceed to try said convict in
the same manner as other persons and under the same
Hon. R. A. Smoot S&mid,, Page 3.~,V-1029:.
rules, of procedure as apply to the trial,of citizens
who become insane . c. . .
“Sec. 2. When a State Convict, located on any of
the prison farms, becomes insane, he’shall immediate-
-1y be transferred to the.main prison .at’Huntsville for
observation and treatment;
.,
. . . .
“Sec. 4. The headquarterss and main offices of
the Texas Prison System, being located at Huntsville,
in Walker County, that County ins given ,exclusive venue
in the trial, of insane convicts’who are inmates of the
Texas Prison System.” (Emphasis ad&d.)
It is clear that Article 3186a applies only to convicts
actually confined in the State Penitentiary at Huntsville, or on one
of the prison farms from which they may be readily transferred
to Huntsville. The subject prisoner became’s “convicts” after the
judgment of conviction against him in Tom Green County became
final (Art. 25, V.P.C.~), but at the time’of the proceedings in Mc-
Lennan County he was not confined as contemplated by Article
3186a. He was actually out of the penitentiary on reprieve when
the lunacy inquisition against him wss initiated.
Article 921, V. Cl. C:~P., as ‘amended, Acts 42nd Leg.,
R.S. 1931, ch. 54, p. 82, provides as follows:
“If at any time after conviction and 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 conviction, a jury shall be empaneled as in or-
dinary Criminal cases to try the question of insanity.”
We have heretofore advised you in Opinion No. V-712
that tbe~District Court in which a’defendant was convicted has ex-
clusive jurisdiction &try .the is~sue’of insanity arising.after con-
viction, Bland v. State; ~137 Tex. Grim. 486, 132 SW. 2d 274 (1939).
Hon. R. A. Smooth S&mid, Page 4, V-1029
and the fact that a convict becomes~ insane while out of the peni-
tentiary on parole, conditional pardon, or reprieve does’ not de-
prive such District Court of its exclusive jurisdiction.
Such jurisdiction may be invoked only by following the
procedure set out~iti Article 922, V; C.C. P., as amended, Acts
42nd ‘Leg., OR. S. ‘1931, ch. 54, p. 82, which reads as follows:
“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 affi-
davit of the prison physician or warden of the Penal In-
stitution wherein thedefendant is in prison, or the Coun-
ty Health Officer of the-County where the defendant was
finally convicted, n&i&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 justi-
fied ,the opinion.”
These provisions are mandatory, and “must be pursued
before the trial court would have jurisdiction of the matter in deter-
mining the issue of insanity. ” Dotson v. State,‘149 Tex. Grim. 434,
195 S. Wi 2d 372 (1946).
It follows that the affidavit of the Deputy Sheriff of McLen-
nan ‘County was insufficient to invoke the jurisdiction of the (;ounty
Court of~McLennan County, even if such County Court had had jur-
isdiction, which it did not have.
Since jurisdiction is an essential prerequisite to a valid
judgment, and since the County ‘Court of McLennan County never
had or:acquired jurisdiction of the issue of the subject’s insanity,
its judgment of conviction of ~Rmacy was a nullity. 25 Tex, Jur.709,
Judgments, Sec. 261. Therefore, subject stands as though he had
Hon. R. A. Smoot Schmid, Page 5, V-1029.
never been tried for lunacy;
Every person is presumed to be sane until the contrary
is shown, and, inasmuch as there has been no valid adjudication
of the insanity of this convict, he is not precluded solely by the
proceedings in the County Court of McLennan County from ac-
cepting any clemency tendered to him of a nature such that his
acceptance thereof is essential to its valid operation.
SUMMARY
The County Court of McLennan County was without
jurisdiction to try the issue of insanity of subject con-
vict, Bland v. State, 132 S. W. 2d 274 (Tex. Grim. 1939).
His purported conviction of lunacy being void, he is not
precluded solely by the proceedings in such County
Court from accepting clemency of such a nature as re-
quires acceptance to be operative.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
Charles D. Mathews Willis E. Gresham
Executive Assistant Assistant
WEG:mf
Untitled Texas Attorney General Opinion
Combined Opinion