Relator was indicted for a criminal oifense, and prior to a trial in Criminal District Court No. 2 of Dallas County, he pleaded insanity as a bar to prosecution. The jury found him insane at the time of the commission of the oifense as well as at the time for the trial. He was committed to the custody of the sheriff in accordance with the provisions of Article 932a, Vernon’s Ann. C.C.P. The county judge acted under the provisions of said article and committed relator, first to the U. S. Veterans Hospital and, thereafter, to the State Hospital at Terrell, Texas.
This application is brought for the purpose of securing his *280release. It is alleged that he has been restored to his sanity and that the superintendent of the State Hospital has stated in writing that he is now of sound mind and knows the difference between right and wrong, that he realizes the consequences of his acts. The matter has been presented to the Judge of Criminal District Court No. 2 of Dallas County, where the case was tried, but the judge refused to act on the application for his release, expressing a doubt as to the sufficiency of the notice given to him and also as to his jurisdiction to enter the order requested. Application was then filed in this court.
The question is whether or not the county court which issued the order of commitment, sending him to the State Hospital, or the court where the issue of insanity was determined, has jurisdiction to hear the application. This question is a difficult one and the decisions of our court have not been fully in accord on the subject.
Prior to the enactment of Chapter 466, Laws of the 45th Legislature, 1937, beginning at page 1172, we had a similar though somewhat different procedure by which a party charged with crime may plead and have adjudicated the question of his sanity at the time of the commission of an alleged offense, and also at the time of trial. Under such former procedure one who had been found of unsound mind at the time of the commission of an offense was ordered released and there was no provision for holding him until he could be committed to a state hospital for the insane. The procedure generally followed was that a complaint was filed in the county court, in accordance with the provisions of the civil statute regulating the trial of lunatics, a jury was impaneled, the evidence heard, and they determined again the question of his sanity. If found to be insane, it became the duty of the county judge to commit him to a state hospital in accordance with detailed provisions of the law at that time.
The Act of the 45th Legislature had as its expressed purpose to provide “for the commitment of such persons to a State hospital for the insane * * without the necessity of the services of another jury in another trial on the identical issues in a county court. This we understand from the caption and the purpose clause of said act to be the chief purpose. In the event a person charged with crime shall have been tried on the issue and found insane at the time of the commission of the offense and at the time of the trial the procedure shall be as follows:
*281“* * * the Court shall thereupon make and have entered on the minutes of the Court an order committing the defendant to the custody of the sheriff, to be kept subject to the further order of the County Judge of the county, and the proceedings shall forthwith be certified to the County Judge who shall at once take the necessary steps to have the defendant committed to and confined in a State Hospital for the insane until he becomes sane.” (Article 932a, Sec. 1, part of sub-sec. b.)
It is our conclusion that the district court does not commit the individual to a hospital, he simply orders the sheriff to hold the party to await the procedure by the county judge. In order to expedite such procedure the statute then directs that a certified copy of the proceedings in the trial court shall be sent to the county judge. The trial judge makes no order directing the county judge as to what he shall do, but the act itself, as a matter of law, is the authority for the action taken by the county judge in committing the individual to a hospital for the insane. It may be that provisions of the civil statute regulating the commitment and admission to such hospital have yet to be complied with. There is nothing in this article to amend or repeal such requirements. Presumably all of this was done by the county judge committing relator to the State Hospital in which he is now confined.
Section 3 of the foregoing Article 932a reads as follows:
“When the defendant so committed to a hospital for the insane becomes sane, the superintendent of the hospital shall give written notice of that fact to the Judge of the Court from which the order of commitment issued. Upon receipt of such notice the Judge shall require the sheriff to bring the defendant from the hospital and place him in the proper custody until the hearing may be had before a jury in such Court to determine defendant’s sanity, and if he be found sane, he shall be discharged, unless he had been previously found to be sane at the time at which he is alleged to have committed the offense charged, in which event, unless previously acquitted, he shall be tried for the offense charged.”
It will be noted that in case of recovery of sanity notice shall be given “to the Judge of the Court from which the order of commitment issued.” This is further made evident by the fact that the county court has machinery for the retrial, or for the trial, of a party seeking his discharge from a hospital for the insane. No machinery is provided for Criminal District Court *282No. 2 of Dallas County to draw a jury and try relator, in the present state of the record.
Attention is called to the fact that when a defendant so committed becomes sane it is the duty of the superintendent of the hospital confining him to give written notice of that fact to the judge who committed him. This, however, is left to his discretion and judgment as to the mental condition of the party, and mandamus will not lie to force the performance of an act within the discretion of the superintendent. The judge who receives the notice will pass upon its sufficiency.
Admittedly, some of the holdings of this court are in apparent conflict with this opinion. In so far as they are they are here specifically overruled.
Relator is lawfully restrained by the hospital authorities and must be so restrained until released under proper procedure by the county court of Dallas County. This court has no jurisdiction to make any order in the matter.