R-494
THE ATTORNEY GENE&&'.
OFTEXAS
Aun~l~ I;. """"""""""s
PRICE DANIEL’
ATTORNEYGENERAL
June 12, 1947
Hon. Looneg E. Lindsey Opinion Ho. V-247
County Attorney
I
Upshur County Ret: Authority of County
Oilmer , Texas Attorney to represent
& PBI’BOR BEdCiZ@ t0
ha;laels asnity Fe-
.
Dear sir: ‘i
“.,i
Your requert ‘for qn opinion iron thir office
iS, in mt, 88 fOllOVB1
"1. By virtue of Article 32 of the
Code of Crlmlnal Prooedure ie a County
Attopsy sating inshis u oapaoitg pro-
hibited from representing a person seeking
to have his Bt3lZity restored.
"The particular 'case Is ohe in whloh
a IMU&v&a adjudged lnsaq about three (3) *
Yeats ago during tUe admlnlatratloo of a ,;
prevtoue county Attorney.
"2. By virtue of Article 32 of the
Code of CHminal Prdcedure is a Coiu'itp
Attorney acting ,in his officlaq capacity
prohibited from representing a person Beak-
ing to have his smity restored?"
Article 32,,V.C.C.P., provides, in iwt8
Art1010 5550, V.O.S., pzJovldes,ln part, em.
follover .I. ; /
:*' *
Hon. Loonoy IL Lindsey - Paepe2 ~
‘wlwa Oh&ea t0 be Inat&& a8 deientlant.
'JheCounty Attorue~ OF the Distrlat Attop-
ney in cq+n$lee haying no County Attorney,,
on the
be
entitled t0 COUXXW~; end in paper OBBBB the
County Judge nay~appoint ooua~el for that
purporo. .‘.”
~eatlon 4 of A~tilolr556th.V.C.S.,ir as fof-
lovr:
"sea.4. Whenovoroae OP 8ore'mdult
oitisens ol thie State shall fil4ian atfl-
dmrlt vith thr County Judge of the oountx' 1
vhere uay one of $he lffianto roaMe8, al-
le(gq under oath thet there is located wlth-
in aaid county, or oonfined within said coun-
ty, a person vho ha8 theretofore been declared
to be of unsound rind, or an habitunl dcuuk-
ard, and that in tho opinion of 8ffiants ruoh
poroon has been r48tored to hlr right tind, or 'I
to sober habita, and that the@ is no orlmlnal
chargo onding against such per'llon, tho County
Judge all?+11 forthwith, either,in tor8ti.m or,
in womtlon, rot m bry for e heariag to dotos-
mla th e aa mity, o r lobrioty, of ruoh porron.
Zhe Cosatf '"g" 8ha;Lloaueo rrotioeof the :'
data ret or t e horrlq to be lrrurd by the
County Plonk, to the guardlm of suoh‘poProa,
if My, mna to thoro hmring ourtoay of ruoh
pawea, if may them be, aad in,tlfbevaat.auoh
l~r6n ba, a bmofiol~r, of the Vetermaa &&la-
P rtrmtlria~, or h$s rat*ee 00n818t8 in xholo oi?
ia prrt of 8013~ qpothor qsratr derived irorr
d08p8ation, pabaoa UP ia~pruroe.paa2ky th0
United St8to8, ltkkenotioo 8ball lio,lrorred oa
,.~ the ohfof.rttoraoy of the Voteran Adrinistrm-
t&n in this State by dellwwlng a co y o? ~, ~.
said notloe to his office, of the ii.1 ing of
.suohaffidavit, and that a hearing la to be
hod thereon, giving tho time,end plaoe theroef.
The County Judge ahall direot tho~Shertff of- .’
~tho oountf vhere eueb pnrllorr ir loorted 'W$a- ~
~?iImdtobring suoh~soa iato qarOa)d f@l'
rid lao&PiDg,if auoh aot108 be 8eoerury 'to.*,;.
,',~
.I
~~oaymhirpvr8eaoemttk *la. n
-- -
HOIl.Loonay E. Lindsey - Page 3
“(a) A jury may be demanded by any
person interested in the ward or his estate
to pass on the question of whether or not
such person has been restored tb his right
aind, or to sober habits, but if a jury 1s
not demanded, the County Judge may paas up-
on such question, or he may cause a jury to
be empanelled to hear su& cause.
“(b) If,the trial of the cause, o&them
before a jury or the County Juago, result8
in a finding that such paraon h4e bson re-
stored to his right mind, or,to sobor habits
a Jumnt sh813 be entered won the minutes
of the cot& P4Clting SW& itots, and adjudg-
ing su6h person to be of sound mind, OF sober
habits, rad raid person, if then under po-
rtralat, shall be discharged immediately.
“(0) If 8uOh perron be under guerdiaa-
ahip st Ohs inotitutlciPof laugh ~rooeodl~s
mnd ah&l1 be &djudged to h4v4 boon reetorod
to his right aim%, or to rObep.habitU,,under
tho ~FOV~BIO~O Of this ALot,and If 8uOk.ire-
storation takes plaae in a court other than
t&t ia which tho guapdian8hip iB pOndi
then said fop&norward shall file a copti T’iod
uop~ of the judgment of #@estoratioato sanity,
or .sobriety, in ?2ae court where the guardian-
d&ii8 POndiD& and, lmnediatoly after the
of suoh celrtified oopy of OUOb U
*ent n the court vhere ,the gWWdian8 h ipY-l
ending, the fomer guardian shall file hi8
Pinal (Lccc$mt,ati deliver to his forrer vuld
the ertato rooslnlng in his handa. If the
orrtoratlon be had in tho ~oou*t whop4 the
gukrdiknshlp is pondlng, then immodlately
after such jidgmeat of restoration la enter-
od, the foFI8or guardian shall file his final
aooount and dsllver over to k&e former ward
the estate remaining in his bands, in the
Wue and ammner provided for in probate pro-
oeodings.
“(d) From a judgment Pendored by the
GouattyCourt upon any pestopatlon heaping aa
provldbd &n appeal may be taken to the Dlstrlot
Hon. Looneg E. Lindsey - Page 4
Court of the county wherein said carrsez
orlglnally was tried. The appeal from
the ju ent of the County Court to the
T Court to be perfected In the
Dlstrlc
manner and In the time prorlded by law
for the appeal of probate ~ooeedi~r
from the County Court to the M6trlat
Court; and provided further, that the
trial in the Matrlot Court &all be de
nova as In other probate pro@e
U&t~ w of the Dirttldi 9 &ii?
4 .
"(e) Any person who ha8 heretofore
been declamd to be of MaoundUBd, O?
anhabitual @lrunkmd, and ha8 beaa trl(hd
m the pslo~lrloan of thlr &a& *M f'ourua
to be of ULUVXI& mind, or an aribitprl
tlmznkbra,shall nOt again be tried for a
period of six (6) months."
Under the pLaln prorlsfona Of APtlele 5550,
V.O.S., It is the duty of a Q@aU#tJAttaMcnj CO Cupa-
rat the State in the original lunacy h@aWIg. Al-
though there is no duty lmporralupon a OorultJAttobn87
to repxwrent the State ln the hearlag on PertaratiQo
of salty, it ie our opinion that een8WuUg Wo 8bora
Quoted provlslona tqether, the Statr~dwr b@Ta WL
Interest In the came. This being trqo, it nese88uilj
follows that a County kttorneg Is prohlblted frol being
*. ~"bf'counnel adveraely'to the State in any case, Ln Snf
cowte "
r..
A County Attorney la prohibited by
Article 32, V.C.C.P., from reprolrmtlllg a
pors.~,roepg to have hi6 IAmity roitQwoa* ,,
., YQ!lm ** ti?&
APPFtOVED: A~oaom~snasuaPEIuB
ii?&32 8v
A7!T~m! fJBm!AL
JR:djm
Untitled Texas Attorney General Opinion
Combined Opinion