Untitled Texas Attorney General Opinion

Hon. Fred Norris County Auditor Polk County Opinion No. O-2297 Livingston, Texas Re: Procedure for restoration of sanity. Dear Sir: We have your letter of April 26, 1940, request- ing our opinion on the question as to whether It Is neces- sary to convene a jury to hear evidence and render a ver- dict on a trial for restoration of sanity or whether the county judge may conduct such hearing without a jury. The proceflurefor restoration of sanity is pro- vided for by Article 5561a, Section 4, Vernon's Annotated Revised Civil Statutes of Texas, which article was enacted by the 45th Leg., Acts 1937, p. 1049, ch. 446, and reads as follows: "RESTORATION OF SANITY; PROCEDIJRE;EFFECT OF FINDINGS; COSTS Sec. 4. Upon the filing in the county court in which a person was convicted or in the count court of the county in which a person Is located at the time he is alleged to have had his right mind restored, information in writing and under oath made by a physician legally licensed to practice medicine in Texas, that a person not charged with a criminal offense, who has been adjudged to be of unsound mind, has been restored to his right mind, the judge of said court shall forthwith, either in term time orevacation, order said person brought before him by the sheriff of the county and if said issue be in doubt said judge shall cause a jury to be summoned and im- paneled in the same manner as ia provided for in Sec. 3 hereof and shall proceed to the trial of said issue, or if there appears no doubt as to said issue, said judge may try the same without the intervention of a jury, and if said person shall be found to be of sound mind, a judgment shall be entered upon the minutes of said court Hon. Fred Harris, Page 2 reciting and adjudging such fact and said~person shall, If then under restraint, be immediately discharged, or in the event-he shall be found to be still of unsound mind, he shall be returned by the county court to the place of restraint from which he had been previously ordered, and the ori,ginalorder of.commitment shall continue in full force and effect. All costs of proceed- ings of restoration shall be paid by the county." We call your attention to that part of the above quoted statute which reads 'or If there appears no doubt as to~said issue, said Judge may try the same,wi.thout intervention of ,a jury:* The.statute ,purports to leave the determination of whether or not a jury shall'be called In such case within the discretion of the county judge. .- . A sanity trial, whether it be to declare a person Insane in the first instance or to rest&e sanity to one keviouslg declared,lnsane is unquestionably a proceeding Involving the liberty of that person. The Supreme Court of Texas insWhite v. White, 196 SW 508, held that a statute providing for the issue of sanity to be determined by a commission of SIX physicians!to be appointed by the county judgeswas unconstitutional-in that it deprlved'the defendant of his right of trial by jury as guaranteed by Sections 15, lg and.29 of Article1 of the Texas Constitution. .. Under the authority of the White case, we are, compelled to construe the above quoted statute to mean, that the county judge may try the issue of restoration of sanity without a jury only if a jury hasbeen expressly waived by the person being tried. Youks very truly ATTORNRY GDUERAL OF THXAS APPROVND MAY 20, 1940 By (Signed)'WALTER R. KOCH s/ GERALD C. MANN Assistant ATTORNEYGENERAL OF TEXAS' Approved Opinion Committee EEAW By RWF, Chairman