
    543 P.2d 1170
    STATE of Idaho, Plaintiff-Respondent, v. Kermit Timothy NIELSON, Defendant-Appellant.
    No. 11846.
    Supreme Court of Idaho.
    Dec. 30, 1975.
    Peter D. McDermott, of McDermott & McDermott, Pocatello for defendant-appellant.
    Wayne L. Kidwell, Atty. Gen., James W. Blaine, Deputy Atty. Gen., Boise, for plaintiff-respondent.
   PER CURIAM:

Kermit Timothy Nielson, in an amended petition filed in the above matter, sought a declaration of his rights under I.C. § 66-334 to be transferred from one mental health facility to another without prior approval of the district court. Petitioner Nielson had been committed pursuant to I. C. § 18-214 after being acquitted of a first degree murder charge by reason of mental disease or defect excluding responsibility. Petitioner was not seeking a discharge or conditional release, but a determination of the authority of the Department of Health and Welfare to transfer him from one mental institution to another without prior approval of the district court that had committed him.

The district court dismissed the petition. We reverse on the authority of I.C. § 66-334, and Glasco v. Brassard, 94 Idaho 162, 483 P.2d 924 (1971). The cause is remanded to the district court with instructions to enter a declaratory judgment in favor of Nielson, decreeing that the Department of Health and Welfare has authority to transfer Nielson from one mental health institution to another without prior approval of the district court, pursuant to I.C. § 66-334, but may not discharge or conditionally release Nielson without first obtaining approval from the district court.

SHEPARD, J., dissents.  