Untitled Texas Attorney General Opinion

HOR. MoyQe L. Kelly opinion No. v-998. Bxeoutive Dlreotor Board for Texas State Re: Several questions re- Hospitals & Special Schools latlve to the prooe- Austin, Texas dure to be followed to discharge patient8 Dear Sir: from State hospitals. Reference.1~made to your reoent request which reada in part aa follbwa: "This Board is unable.to interpretoer- taln portions of H.B. Ho.856, Aota of the 51st poget- * Section 3 of.the bill reads aa : "'Qec.3. Whenever ah inmate of a Stste EospZtal thus committed shall @& found by the Superintendentthereof to have recovered to an extent that he Is no longer of~u~ound mind, WZ shall b&the duty of a.sldSuperintendentto %ninedlatelyoertify that faot~to the Jude f ');he county Court of the county itiwhich a% pltal la looated. and file an affidavit aak- lii:BRfor the restorationof said inmate. such restorationproceedlnRs to be heard and deteli- mined in the same ma-r as now Provided bs law. It shall be the duty of said Judge to mt and try such prooeedlnga at Ohs earll- eat possible time.' (Rmphsals~supplled.) "It would appear.fromthe above quoted section that the restorationprooeedlngswould necessarilyhave to be held-la the county in which the hospital la located. However, in Seation 4 of H.B. Ho.856 It la >proHded: "'3ec.4. Whenever an inmate of a State &spite1 shall have baermthua certified by the Superintendentthereof aa recovered, it shall also be the duty of said Superintendent to immediatelyrelease said inmate, If not al- ready on furlough, from said hospital, in the . - Hon. Moyne L. Kelly, page 2 (V-998) . same manner and aubjeot to the saat6provisions as la provided in Article 31931, Revlaed Civil Statutes of the State of Texas,,1925, but ln i&o'6v&mtshall &u&h inmate be d'ia&ha~rpr~rn said hospital unless and until his restorstlon has been adjudued~by a court of competent jur- Tadictloa. The rl ht of rearrest and reoon- flnemsnt co such hfapltal shall aontlnue to exist as to such inmate while dn furlough pend- ing restorationprotleedlnga in the same manner and to the same full extent as is now provided in Artlole 31931.' (Emphasissupplied.) *From Section 4'1t would app6ar~thatthe ianrapemay be dischargedfrom the hospital vg?n his restorationhas been adjhd$ed by a +ur$ of oompetent jurisdiction. have the proceedingsin &e countZ&S in uhlch ' the hpapltal is looated;%gardl6as 6f where the ~patlentamight W residing? (Furloughed pet.ientsmay be several hundred.miles away f&k the county in which the hospital is la- dated.) "&Wilon Ho. 2: If your ansver%o~Ques- Won g,~~.~%~~.~~~,..~h~,.~afflrmative, vwuld~such prwvl$lti 5s cwtistltutlwnalin requiring rea- toratlwn proceedings in only seven (7) owun- ties in the State of Texas, therebg~,deprlving the inmate from having s restorationprwceed- img in his oounty of legal residence? ~-"~*'*3lace H.B. Ho.856 allows dlacharge wn- Iy by.restoratlwn,it la neceaaarJr.f6r the hospitals to carry patients as being furlough- ed, escaped or transferredto another State or Federal hospital; and alnae Article'31931al- lows furloughs for 0~ year, ~-examlaatlon at the end of one year, and oontlnuaPae of furlough for two additionalyea-, the Ewllowlng ~~ questions iirlae: What should be dose at the e with patients who are not mentally capable of belag restored, but who are well enough not to need hospltallza-. tiwm? - . Hon. Moyne L. Kelly, page 3 (v-998) I "QuestionIiw.4: How should a patient be oarrled on the hospital oenaua when such p&lent is not returned at the end of the first year of furlough for the required ex- amWatlon? "QuestionBo. 5: Hw ahouId a_-_ patient - e carried on the hospital -_. cenaua zr rurlough- ed or esoaped and later oommltted to a State or Federal hospital In another State?" It was held in Hatton v. State B&d of Con- 146 Tex.160, 204 3.%l.2d390 (1947) that it was uty of the Superintendentof a 3tad Hospital to discharge a patient from the hospital when he~had de- termined that such patient had recovered to the extent that it was nw longer aeoeaaary that he be held ln re- straint; aud that a patlent who had been aw dlaoharged from the hospital while on furlough owuld not be reaom- mltted to the hospital vlthout a jury trial even though his sanity had not been legally restored. At the time of the above deolalwn there was no mandatory provision in the law direotlng S@mrintendenta to have a person'8 sanity judiciallyrestored before be- ing discharged from the hospital. Suah wsa one of the obvious purposes of House Bill 856, Acts 51st Leg., R.3. 1949, ch.435, p.810, and codified aa.Artlcle5561b, V.C. 3. Such Aot provides in part as follwa: -. "3ectiwn 1. l%e prwvlalwnaM$hla Act ahall.applyto all persons who have'been both adjudged of unsound mind and as needing re- straint by a jury under the provisions of Title 92, Revised Clvil3tatutea of the State of Texas, 1925, entitled lLuuauy-Judlcial Proceedings in Cases of,' and committed to a State Hospital in acoordaucetherewith, and not charged with a orlmlnal offense, and tb none other. "Sec. 2. The provisions of this Act are intended to be and shall be both manda- tory and exclusive. "Sea. 3. Whenever an luma$e of a State Hospital thus oommltted shall be found by the Superintendenttherewf to have recovered to an extent that he la no longer of unsound HWU. rt0gne L. Kelly, page 4 (v-998) mind, It shall be the duty of said Superln- tendent to lmmedlatelycertify that faot to the Judge of the County Court of the county ln vhlah said hospital ia located, and file an affidavit asking for the matoration of said Inmate, such restorationprooeedingsto be heard and determined In the same manner as now provided by law. It shall be the duty of said Judge to docket and try such prwc?dinga at the earliest possible time. . . . That it waa the intent of the Legislature in enaotlng House Bill 856 to provide a mandatory and ex- aluslve method for Superintendentsof State Hospitals to bring about a judicial restorationof a person's aenlty before discharge from the hospital is aubatan- Uzgi'by the emergency olause of the Act. It is there : ~."The present anomalous and unsatisfac- tory owndltlwn of the law In thls:regard, vhereln a reowvered lunatic aan be dlaoharg- ed by the,Superlntendentof a State hospital without the necessity for a restorationprw- 'oeedlng,but caunwt be returned to said hoa- pita1 without another adjudioatfwn‘wflusanlty,,~ yet remains under the legal dlaabllltieaof the.,orlginaladjudlcatlwnuntll~~restwred in spite of hla discharge,has resulted in great ~.lwas znd aonfuslon to many lnnooent people, . . . In view of the foregoing it la-our wplnlwn that one of the.prlmary objects In enaotlng House Bill 856 was to require that Superintendentsof State Hwapltala to have the sanity of a patient judlalally~restored before the patient can be discharged from the hwapltal. An ex- olusltre'methodla provided by the Act fwrthe judicial restorationof sanity to an inmate of a State Hospital w&w la *found by the Superlntendeuttkereof to have re- ooverad'to an extent that he la no longer of unsound mind.” Section 3 of the Act requires the Superintendent to certify auoh feat to the Jndge of the County Court of the county in vhloh the hospital la located, and further provides that 'suchJudgeshall doaket and try auoh rea- toratlon proceedings at the earliest possible time. In- sofar as the judialal restorationof sanity to a patient throughthe lnltlatlve of the _Superlntendent is cwneerned, Hon. Yoyne L. Kelly, page 5 (V-998) - . Section 3 provides the exolusive aourt and method, and you are so advised. On the other hsud, Section 4 of Howe Bill 856 oleerly owntemplatesa sitnation where a mental patient has been granted a tempwrsryleave or~furloughfrom the State Hospital under the prwvlsiona of Artlale 31931, v.ck.3. It la proqided la Section 4 as follows: menever an inmate of a State Hospital ahall.have been thus aertlfied by the Super- lntendent thereof as recovered, it shall alag be the duty of said Superlntendelittd lmmed-, lately release said inmate, if not already gu furlough, from said hospital, in the same man- ner and subject to the asme provf.al&u+aa~la provided in Article 31931, Revised Civil Stat- utes of the State of Texas, 1925;but in no event shall auah inmate be discharged from said hospital unless and until his ~tiatora- tlon has been adjudged by a owurt of awmpe- tent jurladiotlwn. The right of rearrest an&reconfinement tw.auch hwapltsl'8h~llpon- tinue to exist as to auah inmates while oh furlough pending restorationproceedings in the Same mannhr and to the same full-extent as is now provided for in Article 31931." Section 4 of Article 5561a, V.C.3.) provides, in part: “Whenever one or more ad& cltlzkna of this State shall file an affldavlt with the County Judge of the uwun+vhere any one of the affiati resides alleglrrg.under oath that there la located within said coun- ty, ~wr confined within said uwunty, A person i&o has theretoforebeen declared tb be of unsound mind, or an habitual drunkard, and that in the opinion of afflants such person has been restored to his right mihd; or to sober hablts, and that there is no oriminsl charge pending against auoh person, the Cwun- ty Judge shall forthwith, either in termtlme or ln.vacatlon,set a day for a hearing to determine the sanity, or sobriety, of such person . . ." Thus it.18 to be observed that if a patient la Hon. Mwyne L. Kelly, page 6 (V-998) on furlough under the prwvlslons of Article 31931, it is possible to hsve a judicialrestorationof sanity under the.provisions of Artlole 5561a. In such a case the judicial restorationis Institutedby "one or more adult citizens of this State" by the filing of an *affidavit with the County Judge of the oounty where any one of the afflants resides alleslng under oath that there la lwaat- ed vlthln said oouuty a person previouslydeclared tw be of unsound mind and asking for a judicialrestoration of sanity. In such a case the aanlty restorationproceed- lug has not been institutedby the Superintendentof the hospital, and therefore,Section 3 of House Bill 856 is not applloable. Hwever,‘ln all cases, whether the.san- lty restorationprwoeediug is institutedby the.3~ rln- tendent or some private citizen, the Superintendenr of the hospital is not authorizedto discharge the patgent until the court where auoh proceeding is Institutedhas judiciallydetellnlned that such perswon'ssanity has been restored. !Cheabove answer to your first question makes It uunecessaryto answer your second question. We believe it was the further purpose of House Blli 856.to obviate the necessity oftanother sanity hear- ing before a furloughedpatient, whose sanity has not been legally restored, msy be returned to the 3t.ateHoa- pltal. Article 31931, V.C.S., provides: We superintendentof any lnstltutlon, after.the examinationas hereinafterprwvld- ed, may permit any inmate thereof.tempwrarlly td leave such lustltutlwnin oharge-‘of his guardian, relatives, friends, orby himself, for a period not exceeding twelve mwutha, and may reoelve him when returned by any auch.guar- diau, relative, friend, or upon hla ovn appll- eatlwn, vlthln such period, vlthout any further order of owmmltmeut;but no patient, who has been charged with or cwnvloted of some offense. and been adjudged Insane in acoordanaewith the provisions of the code of ~orlmlnalprwoe- dure, shell be permitted to temporarilyleave such lustltutlwnunder any clreumstances. The superintendentmay require as 8 oondltlon of such leave of absenoe, that the person in whose charge the patient is permitted to leave the institutionshall make reports to him of Hon. Mwyne L. Kelly, page 7 (V-998) the patient's cwudltlwu. Any such auperln- tendent, guardian, relative or friend may terminate auoh leave of absence at any time and authorize the arrest and return of the patient. Any peace wfflaer of this state shall aauae such patient to bs arrested and returned upon the request of any such aupsr- fntendent,guardian, relative or friend. Any patient, except such as are oharged with or owntioted of some offeuse, who has been ad- judged insane In aoowrdanoewith the provi- sions of the code of orlminal ProoeduPe, who has returned to the I~tltUtlWn~at the ex- piration of twelve months may be granted an addtlonal leave of not to exoeed two years, zt;;; tuperlntendent,or upwn his ~reaomen- . . Sluoe House Bill 856, which was passed aubae- quent'tw'Alit.iole, 31931, provides that no ~patleutmay be dlaohatigedfrom s.wh hospital "until hlkrestoratlwn has been adjudged by B oourt of competent jtiisdlotlwn"it la our 'opinionthat a patient who 1s notmentally oapa- ble of being restored, but who Is in such awndltlwn Bs to no lbnger need hoapltsllzatlwn,may be furloughed,but he may~tiotbe dlaahapged at the end of three years wlth- out resti6ratlwnof sanity. Your fourth question presents s practical prw- blem. If a patient is not returned at the end of the first year furlough for an examlnatlwn;then the Super- intendentgranting such furlough should cwntaat the per- awn having custody of the patient aud'determlnewhethei. he should bs returned to the hospital or granted an ad- dltlwnal furlough. If such patient oannwt be located, and he la considered as an escapee by the Superintendent, he ahotildbe carried on the Census Rwll.aa such. If, on the ~wgherhand, his furlough is extended';then he should be listed as being furloughed. In answer to yoti fifth question you are advia- ed that if a patient la granted a furlough or eaoapes and is later committed to another State or Federal Hospital, such patient should be carried on the Hospital Census as furloughedor as an escapee as the case may l+ with the notation made of the patient's commitment to another State or Federsl Hospital. Hon. Mwyne L. Kelly, page a (V-998) SUMMARY A sanity restorationprooeedlngwith reference to an Inmate of a State Hospital who is on furlough may be lqstlfuted~lnthe county where the patient la lwoated rather than the county in which the hospital la located. Arts.31931 and 5561a, V.C.3. A patient in such mental condition as to prevent a judlalal restorationof sanity, vered to the extent that hwapltallea- tlwn la yet $" no longer neoesaary,may be furlough- ed by -theSuperintendent,but in no event may he be discharged at the end of three years without a restorationof sanity by a court of competent jurladlctlwus. Art. 5561b,v.c.3. If a patient is not returned.at'theeud of the first year furlough for au examination, the Superintendentgranting suah furlough should awntaot the person having custody of the patient and determinewhether he'should be returued to the hospital or Idanted an ad- ditional furlough. If suoh patient cannot be loaated and 1s considered as an eaoapee by the Superintendent,he should be 6aWled on the census roll of the hoapltal as a!+ah. On the other hand, if his furlough la~bxtended, he should be listed on the roll as being fur- loughed. If a patient la granted a furlough or eaoapea and la later committed to another State or Federal Hospital, such patient ~ahonldbcaarrled: on the census roll as "furloughed"or as an "eaoapee"as the case may be, w&th the notation made.of the com- mltal to another State or Federal Hospital. Yours very truly, APPROVED: PRIm DAi'UXL Attorney General J. 0. Davla, Jr. County Affairs Dlvlalwn Charles D. Wathewa Executive Assistant Assistant BA:mu #