I
XiAS :
AUSTIN,TEXA~
November 8, 1948
Hon. R. A. Smoot Schmid, Member
Board of Pardons and Paroles
Austin, Texas
Opinion No. V-712
Re: Construction of Articles
921 and 922, Vernon’s Code
of Criminal Procedure,
pertaining to trial of is-
9~6~ of, Insanity arising
after conviction.
Dear Sir:
Since we received your request for an opinion,
you have orally advised us that answers to the two here-
inafter stated questions will suffice. These questions
are :
1. What court ore courts have jurlsdlc-
tion to try the issue of insanity of a con-
vict arising while he Is out of the peniten-
tiary on parole, a conditional pardon, or
reprieve?
~2. Is ~itnecessary for the convict’s
parole, conditional pardon, or reprieve to
be revoked before the court may try. the is-
sue of his insanity?
Article 921 and 922, Vernon’s Code .of Crlmi-
nal Procedure, r’ead respectively as follows:
“If at any time after conviction and by
the manner and method as ,herel,nafter p:rovid-
ed, it be made known to the Judge of the
Court in which the indictment has been r.e-
turned, that the defendant has become.insane,
since his conviction, a jury shall be empan-
eled as in ordinary Criminal cases to try the
question of insanity.”
,.
Hon. R. A. Smoot Scmhid - Page 2 (V-712)
8’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 con-
sist 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
affidavit of the prison physician or warden
of the Penal Institution wherein the defend-
ant is in prison, or the County Health Offi-
cer of the County where the defendant was
finally convicted, which affidavits, If made,
shall state that after a personal examination
of the defendant, it Is the opinion of the af-
fiant that the defendant is ‘insane, and said
affidavits shall, in addition thereto, set
forth the reasons and the cause or causes
which have justified the opinion.”
The Texas Court of Criminal Appeals has con-
strued Article 921 many times and has repeatedly held
that it contemplates that the issue of Insanity aris-
ing after conviction should be tried and determined by
the court in which the conviction occurred and that
such court has exclusive jurisdiction to try the issue.
Bland v. State, 132 S. W. 2d 274; McKibben v. State, 148
S. W. 2d 423, and authorities there cited. We quote
from the Bland Case.
“We call attention to the following sit-
uation regarding the insanity question. The
judgment of conviction was rendered in the
District Court of Lubbock County, Texas, on
March 23, 1939, and sentence pronounced on
the same day, at which time appel$l.;tt$;;e
notice of appeal to this court.
script was filed in this court on April 21,
and the statement of facts was filed in this’
court on June 26. The record here does not
show that appellant was released on bail pend-
ing his appeal. Attached to appellant’s mo-
tion to retire this cause from the docket is
a judgment of the County Court of Haskell
County declaring appellant to be insane; said
judgment bearing date of May 15, 1939.
“Article 921, CCP . . . provides as fol-
lows : ‘If at any time after conviction and
Hon. R. A. Smoot Schmid - Page 3 (V-712)
by the manner and method as hereinafter pro-
vided,, it be made known to the Judge of the
Court in which the indictment has been re-
turned, that the defendant has become insane,
since his ctinvlction, a jury shall be empan-
eled as in ordinary Criminal cases to’lry the
QUEsTION ,OF INSANITY. ’ It has been held that
the District Court in which a defendant was
convicted has exclusive jurisdiction to try
the issue of insanity arisin after convic-
tion. Ex arte Milllkin, 10 i Tex. Cr. R. 121,
299 S. W. e33; Fix parte Davenport
Cr. R. 326, 7 s. w. 26 589 60 A.'L%.T~~~3'.
From the, opinion on rehear 1ng in Escue~ v.
State, 88 Tex. Cr. R, 447, 227 S. W. 483;'It
appears that a very similar question arose as
Is before us in the present case. Escue had
been convicted of a felony In Shackelford Coun-
ty. Pending his appeal to this court he was
adjudged insane in the County Court of Travis
The judgment of conviction was afflrm-
.
Ynty- He attached to his motion for rehearing a
copy of the .insanity jud,gment ,, asking’ us to
withhold mandate should ~,his motion for. rehear-
ing be overruled. This we declined to do
upon the theory that the c,ourt in which his
~conviction-occurred would upon a proper show-
ing protect appellant in his statutory rights.
In view of the statute and decisions referred
to it would appear that the issue of insanity
after conviction should have been determined
in the District Court of Lubbock County, where
appellant was convicted, and not in the County
Court of Haskell County, and that the insanity
judgment 3-n the latter court Is not control-
llng.l’
In the. McKlbben Case, the Court, amongi’other
things, said:
“Under the provision of Article 921, . .
It is contemplated that the issue of Insanity
after conviction should be tried and determin-
ed by the District Court in which the convic-
tlon occurred.”
In view of the foregoing, we answer your ques-
tions as follows:
Hon. R. A. Smoot Schmid - Page 4 (V-712)
A convict, who becomes insane while out of the
penitentiary on parole, conditional pardon, or reprieve,
is within the purview of Article. 921, and the issue of
his insanity can be tried and determined only in the Dis-
trict Court in which he was convicted, and then only when
his application for a trial as to his Insanity, acqompan-
ied by one or more of the af,fidavlts required by Article
922, is presented to ‘the Judge of the Court. Dotson v.
State, 195 S. W. 2d 87.
The fact that a convict becomes insane while
out of, the penitent lary on parole, conditional pardon, or
reprieve does not deprive the District Court in which he
was convicted of Its-exclusive jurisdiction to try and
determine the issue of his insanity.
SUMMARY
The Issue of a convict’s insanity, aris-
lng while he Is out of the penitentiary on
parole, conditional pardon, or reprieve may
be tried and determined only in the District
Court in which he was convicted. McKibben v.
State, 148 S. W. 2d 274, and authorities there-
in cited. Such issue may be tried and deter-
mined without a revocation of the parole, con-
ditional pardon, or reprieve granted to him.
Art, 921, v.c.c.P.
Yours very truly,
ATTORNEYGENERALOF TEXAS
BY
Bruce W. Bryant,
BWB:wb Assistant
ATTORNEYGENERAL’