Texas Attorney General Opinion: JM-360 Page: 2 of 9
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Mr. Robert 0. Viterna - Page 2; (JM-360)
of each person euipected of insanity, or who has
been legally adjluged insane, there shall be
provided [a padded :ell] . (Emphasis added).
The last paragraph quoted does not relate to the ordinary county
jail prisoner who has been arrested for violating a criminal law. In
our opinion it means that a jail shall not be used to house persons
solely on the ground that they appear to be insane or have been
adjudged insane. An exception is made for any such person who
"demonstrates homicidal tendracies" an4 has to be restrained from acts
of violence against others, The requirements of article 5115 are
appropriate for dealing with insane persons who are incarcerated for
the purpose of restraining them from committing acts of violence; they
make little sense when apj:lied to prisoners arrested on criminal
charges, since incarceration may last no more than 24 hours and must
be followed by the individual's release or hospitalization.
In our opinion, the qiocted paragraph deals with insane persons
placed in jail to restrain ithn rom acts of violence and not with
persons jailed for criminaL charges. Only the former category of
persons are required by article 5115 to be held in a padded cell.
Lozano v. Smith, 718 7.2d 756, 759 n. 6 (5th Cir. 1983) (dicta)
(article 5115 does not requ:Li:e release or transfer of persons held on
criminal charges who are incidentallyy insane); contra Wright v.
Wagner, 641 7.2d 239 (5th C ILr. 1981) (dicta) (article 5115 requires
padded cell for prisoner Legally adjudged insane or suspected of
insanity). The standards prescribed in article 5115 "are minimum
standards only." The Texas (Commission on Jail Standards is empowered
to establish "ainiana standards for the construction, equipment,
maintenance, sad operation of county jails" and "for the custody,
care, and treatment of -prioners." V.T.C.S. art. 5115.1, 59(a) (1),
(2). The comission has required that a jail have one or more padded
cells "for temporary holding of violent persons or persons suspected
of insanity." 37 T.A.C. 5259.66 :(1980). The commission has in
addition required each sheriff to develop a plan for classifying
inmates, which must provide for
t]hbe ,separate busiag of persons suspected of
insa ity or vho lue been legs ly adjudged insane,
and personswho .. . m st be restrained from
comitting_ -,acts of violence against other
persons. . . .
37 T.A.C.. 271.2(9) (19801 , Thus, any .violent prisoner, insane
prisoner, or prisoner ."suspected of insanity" mist be placed in a
padded cell.
Article 5547-26, V.T.C.S., was enacted as part of the 1983
revision to the Texas Mental Eealth Code. Acts 1983, 68th Leg., ch.p. 1646
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-360, text, October 18, 1985; (https://texashistory.unt.edu/ark:/67531/metapth272800/m1/2/: accessed May 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.