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
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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
P. 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
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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