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January 11, 1839
Board of Pardons and Paroles
State of Texas
Austin, Texas
Gentlemenl Attention: Mr. T. C. Anclrers
opinion NO. o-m
Bet Jurisdiction of District Court other
than court In which conviction was had to
determine qUeStiOn Of Sanity Of inSan8
person under sentence of death, in event
the sentence is commuted to life imprison-
ment.
Your request for an opinion has been received by this office.
You ask substantially the following question:
May a person convicted of murder in Bexar County, sentenced
to death, subsequently adjudicated insane by the Bexar County
District Court, and at present confined in the penitentiary at
Huntsville as an insane person under sentence of death, (because
of the refusal of the superintendent of any state hospital for
the insane to receive him as an insane person after an action
to declare him sane had been filed and tried in the District.
Court of Bexar County, the jury failed to agree, and the District
Judge of Bexar County refused to try him again) be tried in Walker
County for the purpose of aeternining the question of his sanity,
should the Governor commute his death sentence to life lmprison-
ment In the penitentiaryt
This Department is of the opinion that commutation of the
death sentence by the Governor rlll neither confer potential
jurisdiction on the walker County District Court if It does not
now possess it, nor deprive it of potential jurisdiction if it
now possesses potential jurisdiction.
Article ~4, Penal Code of Texas, l925, provides In part
as follows:
"...$0 person who becomes insane after he is found
guilty shall be punished while in such conditionm
Article 928, Code of Criminal Procedure of Texas, 3.925,as
amended by Acts 1935, 44th Legis., p. 557, oh. 239, sec. 1, pro-
vides as followsr
@If the defendant becomes sane, he shall be brOU@t before
the court in which he was convicted or before the District
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Court in the County in which the defendant is located at
the time he is alleged to have become sane; and, a jury
shall be lmpaneled in the Court before which such defend-
ant is brought to try the issue of his sanity; and, if
he is found to be sane, the conviction shall be enforced
against him as if the proceedings had never been sus-
pended,"
The effect of this Article is to confer oonourrent jurisddct-
ion to determine the question of sanity arising after conviction
and jud@nent of insanity, upon either the court in which the con-
viction was had or the distri.Ctcourt of the county In which the
subject defendant is located at the time the allegations of his
sanity are filed.
Therefore it would appear that since the subject of your in-
quiry is at present located in the penitentiary at Huntsville in
Walker County, the Walker County District Court has jurisdiction,
under this statute, to determine the question of the subject's
sanity, and if he is determined to be sane, the death sentence
must be enforced against him unless the Governor intervenes.
In investigating this question it has come to the atten-
tion of this Dcpartuent that th,eLegislature, while it amended
Article 928 as above indicated, failed to amend Articles 929
and 930 of the Code of Criminal Procedure, 1995. Prom this omis-
sion it appears that while the procedure in such cases before the
court in which the GOnviCtion is had is fully prescribed by such
articles, the Legislature has failed to prescribe the procedure
to be followed in such cases before the District Court of the
county In which the defendant is located at the time he is al-
leged to have become sane, in the event the suit is instituted
in the latter county rather than the court in which the con-
viction was had.
However, in accordance with general rules, where the Legis-
lature fails to prescribe rules of procedure in detail, the trial
court is authorized to adopt reasonable rules and regulations
relating to such procedure, and If the procedure set out in Artl-
cles 928 and 930 is followed SO far as applicable, it is our
opinion that will be sufficient.
Your attention is likewise directed to the fact that it
cannot be determined from your letter whether the action to de-
clare slcKenaieSane, once tried in the District Court of Bexar
County and resulting in a hung jury, is still pending.
If this action is still pending in Bexar County, it is our
opinion that by reason of the prior pendency of such action in
that court, the District Court of Bexar County will have exclu-
c
sive jurisdiction to determine the question of sanity unless
and until such cause is dismissed.
Pours respectfully,
ATTORWEY GEWZRAL OF TEXAS
BY R. T. Fairchild
Assistant
APPROVED:
ATTOSWX GlMERBL OF TEXAS