Untitled Texas Attorney General Opinion

May 3, 1939 Honorable 0. J. S. Ellingson General Manager Texas Prison System Huntsville, Texas Dear.Sir: Opinion Wo; O-666 Ret :I8 a,o,onviotentitled to have time spent in Austin State Hospital counted on his, sentence?' We aoknowledge reoeLpt~'of'your $etter dated'Apri1 20, 1939, in whichyou request an opinion of this-Department on the above question. 'Yourletter reads as fol1ows.t. "This inmate has several oonvictions against her, eaoh for"two years-Andyall ran conour- rently, the lastof whioh was for forgery and she was sentenced by the Haps Oounty Distriot Court on October 7, 1932. After Mrs., Johnson was convioted in 1932, she was tried for in- sanity in the Distriot Court of Travis County in Cause No. 21,394, oonvloted by a jury on Maroh 2, 1935,,and was sentenoed to the Austin State Hospital. ftWe have no record of her conviction for in- sanity nor of the time she spent in the Austin State Hospital, but we are advised by an at- torney representing her that the reoords at the Austin State Kospital.show ,shewas there for a total of 3 months and 19~days when she escaped. She was re-arrested early in 1938 and was transferred,to the penitentiary on February 27, 1939. .:, 'WY. Jobnson*s attorney~'advisesus that under the holdingsof the,Court of Criminal Appeals, she is entitled to have the time spent in the Austin State Hospital oomputed,on her sentence, and if this be true.she would be released from prisoti. Will you'plesse'advise whether we have Honorable O.J. S. Ellingson, May 3, 1939, Page 2, O-666 the right to oount the time she served in the Austin State hospital as time served on her sentence, in oonsidering her eligibility for release from prison." Artiole 34 of the Penal Code of the State of Texas provide8 in part that: "NO person who becomes insane after he is found guilty shall be punished while in such oondition." This statute is plain and unambiguous and of course means exactly what it sags. The procedure to be followed in making effeotive the provisions of the above statute in oasee of insanity after oonviotion is set out in Title 12, Chapter 1) of the Code of Criminal Prodeoure of Texas, Artioles 921 to 928 inolusive. &tiOleE 921, 922, 923 and 924, in general, provide for a trial, on the question of insanity, of the defendant who is alleged to have become insane after hia oonviotion, and also setout the nature of the information required to be filed with the judge of the court in order to obtain such a trial. It is then provided in Article 925, that: "Upon the trial of an issue of insanity, If the defendant'is‘found'to,be insane, all fur- ther prooeedings in the ease against -shall be suspended until he becomes sane." The next sucoeeding Articles Nos. 926 and 927 provide, in general, that if the defendant is found insane he shall be committed to the oustody of the sheriff, to be kept subjeot to the further orders of the County Judge, and further provide that the County Judge shall at onoe take the necessary steps to have thedefendant confined in a lunatic asylum until he becomes sane. Then we find Artiole 928, as amended by,Acts 1935, whioh reads as follows: "If the defendant becomes sane, he shall be brought before the court in whioh he was oon- vioted or before the District Court in the county in which the defendant is located at the time he is alleged to have beOOm8 sane; and, a jury shall be empaneled in the ocurt before~wbich such defendant is brought to try the issue of hi8 sanity; and, sf he is found to be sane, the oonviotion shall be P?. * F.. L Honorable 0. J. 6. Ellingson, May 3, 1939, Page 3, O-666 enforced against him as if the prOO88dingS had never been suspended." (Underscoring ours) The word "proceedings" has been defined as "all posl;blesteps in an action from its commencement to the execution of judgment" Green v. Board of Commissioners, 259 Pac. 635; Greenleaf V. Minneapolis Railway Company, 151 N. W. 879. Th8 word "suspend" has been defined many times to mean "to cease temporaily from operation or activitg;N "to cause to 08898 for a tim8 from operation or effect;". "temporary cessation;" "to cause to cease for a time." Corpus Juris, vol. 60, p. 1190. It is our,,opinionthe only $&sib18 interpretation that could be given the above quoted,Article'S25 is, thatif a defendant after conviction andsentence is adjudged to be insane hi8 sentence and punishment thereunder is suspended until his sanity is regained. .During the'period of insanity, he shall not be punished by confinement in thepenitentiary as provided ,in th8 judgment of oonviction and sentence, but on the oontrary shall be committed to a lunatic asylum for treatment.' It will be noted that Article 926, above.quoted, after providing.for a trial to dtitermine‘whetheror not.the defendant has regained his sanity read8 as followst "And,'if he is found to be saner,the oonviotion shall be enforced against him a8 if the proceedings had never been suspended." We interpret this to mean that the defendant, after regaining hi8 sanity, shall be returned to the proper authorities to be further punished in accordance with the judgment of conviction, the punishment to begin where left off whendefendant wa8 adjudged insane and further punishment temporarily suspended. As we read and interpret the above mentioned statutes it Was not contemplated by the ?8giSlatUre that the time intervening between the date ofthe.judgment adjudging a defendant to be insane and the date of the judgment adjudging him to have regained his sanity should be considered as punishment and credited as time spent on his sentenoe. A diligent.search has disclosed but two oases where- in the court has discussed the question whether or not the time which a convict, after conviction, spends in a state hos- pital is to be credited on his sentence. In the case of State of MiIuI8sOtav. J. H. Jorgenson, Sheriff, decided by the Su- preme Court of Minnesota and reported in Vol. 62, American Law Report, page 244, it was held that where a person while serving a sentence in a county jail is duly committed to a state hospLta1 for the insane and there confined, the tim8 runs on his sentence while so confined in the latter institu- tion. The court points out in this case that a state statute requires that time spent in the "atate prison" or "state re- formatory" shallbe oounted as a~part of the term of his sen- tenoe and then states "this indicates a legislative policy of . - - i Honorable 0. J. C. Ellingson, May 3, 1939, Page 4, O-666 considering one who has commenoed serving a sentence as con- tinuing so to serve, even though it be necessary to keep him at an-institution other than the one to which he was sentenced; so long as he is so kept involuntary on his part by an Under legal authority." The court construed the above mentioned statute to include parsons confined in the county jail as well as those perSOnS confined in the "State prison" or "state re- formatoryc. ‘In the case of State v. Brouillette, 163 La. 46, 111 So. 491, the Supreme Court of Louisiana also held that the time spent by a convict in a publia hospital should be counted as part of the 8 entence. The court in this oase construed a Louisiana statute to hold that where a oonviot has been sent to the prison hospital for-,treatment,the time spent in the hospital should be oounted on hi8 sentenoe. In the absenoe of similar statutes in Texas we do not think either of the above cases oan properly be cited as authority for the proposition that time epent in sn insane asylum should~be counted as part of the ssntenoe. It is our opinion and you are so advised that the time spent‘by a convict in'the state insane asylum should not be.counted on his sentenoe. Respeotfully submitted ATTORNEY GENERAt OF TRXAS s/ Tom D. Rowell; Jr. m '~ Tom D. Rowe11 TDR:PL-cg ~3sistant APPROVED: S/ Gerald C. Mann ATTORNRY GENERAL OF TEXAS