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