AUSTIN. TEXAS
December 15, 1949
Hon. 0. B. Ellis Opinion No. V-968
General Manager
Texas Prison System Be: Procedure for discharging
Huntsville, Texas inmates of the Texas Prison
System who have been de-
clared insane and now apt
Dear Sir:. pear sane.
Your recent letter to this office reads, in part, as
follows:
y We desire the opinion of your department as
to procedure in discharging inmates of the Texas
Prison System who have been declared insane and
now appear sane.-
From your letter it appears that the inmates to whom
this question relates were adjudged insane after they had en-
tered prison but before the expiration of their respective sen-
tences.
Article 928, Vernon’s Code Criminal Procedure, which
deals with insanity after conviction, provides:
“If the defendant becomes sane, he shall be
brought before the court in which he was convicted
or before the District Court in the County in which
the defendant is located at the time he is alleged to
have become sane; and, a jury shall be impaneled
in the Court before which such defendant is brought
to try the issue of his sanity; and, if he is found to
be sane, the conviction shall be enforced against
him as if the proceedings had never been suspended.”
Article 929, Vernon’s Code Criminal Procedure, autbor-
izes the superintendent of the asylum in which the prisoner is an
inmate to initiate restoration of sanity proceedings by presenting
to the court a written certificate as to the inmate’s sanity.
Hon. 0. B. Ellis, Page 2 (Opinion V-968)
In view of Article 928 and 929, Vernon’s Code Crim-
inal Procedure, we conclude that the superintendent of the
asylum in which the convict is an inmate is authorized to pre-
sent a written certificate as to the sanity of a convict-inmate
to the District Court in the county where the asylum is located
or to the court in which the inmate was c.onvicted of the crime
for which he has been imprisoned, and thereupon the issue of
the inmate’s sanity shall be tried.
If the convict-inmate is adjudged sane, he should be
removed from the asylum and reconfined in the penitentiary
proper for the expiration of his sentence. This is the view taken
in Attorney General’s Opinion No. O-5721, by a former adminis-
tration, which has been cited with approval in Attorney General’s
Opinion No. V-498.
Attorney General’s Opinion No. O-5721 holds: “We are
of the opinion that the foregoing discussion discloses a legis-
lative policy in Texas of not subjecting insane persons to crim-
inal punishment, and that the time spent by an insane in a state
hospital should not be counted on his sentence as a criminal.”
SUMMARY .-.
The procedure for the discharge of an inmate of
the Texas Prison System who has been adjudged in-
sane but now appears sane is for the superintendent
of the asylum in which the convict is an inmate to
present a written certificate as to the sanity of the .
prisoner to the District Court in the county where
the asylum is located or to the court in which the
inmate was convicted of the crime for which he has
been imprisoned, and if upon trial, the prisoner is
adjudged sane, he should be removed from the asylum
and reconfined in the penitentiary proper for the ex-
piration of his sentence.
Yours very truly,
APPROVED: ATTORNEY GENERALOFTEXAS
PTP:v