Untitled Texas Attorney General Opinion

THE ATTORXEP GENERAL
OF TEXAS

Honorable Charles W. Chapman Opinion No. JR-1202
Criminal District Attorney
Hays County Courthouse, Suite 208 Re: Inquest procedures
San Marcos, Texas 78666 under chapter 49 of the
Texas Code of Criminal
Procedure (RQ-2051)

Dear Mr. Chapman:

You ask a number of questions relative to inquest
procedures under subchapter A of chapter 49 of the Code of
Criminal Procedure. Subchapter A is applicable to deaths in
a county that does not have a medical examiner. YOU advise
that your questions are prompted by the decision of a
justice of the peace to hold an "inquest hearing" following
- an earlier determination at an lVinguest*'as to the causes of
death. You ask:

(1) In the event the Justice of the
Peace has conducted the inquest and made a
determination, is that determination final
with regard to Articles 49.04 and 49.05?
Can, in other words, there be a hearing after
an inquest has been conducted?

(2) If the Justice of the Peace has
made a determination under Article 49.05 and
a subsequent inquest hearing is held under
Article 49.14, and a jury's determination is
different than that of the Justice of the
Peace, which is the prevailing determination?
Does the hearing jury or another Justice of
the Peace have the right to amend the finding
of the original Justice of the Peace?

(3) May the Justice of the Peace who
has made the initial determination be called
as a witness in the subsequent jury hearing
to testify as to her knowledge of the death
scene and the death scene investigation?

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Honorable Charles~ W. Chapman - Page 2 (JM-1202)

(4) If so, may the Justice of the
Peace then recuse herself from presiding to
be a witness in the 'matter and request
another available justice of the peace (in
the same county) to preside over the hearing?

(5) Since the Justice of the Peace,
under Article 49.05(3), can conduct
inquest 'at any other place determined to i:
reasonable by the justice,' may the place be
located in an adjacent county? What, if any,
are the geographical limitations on the place
for the inquest or inquest hearing?

(6) Article 49.14(d) provides that
the inquest hearing may be public or private.
If it is private, may the Justice of the
Peace make it 'selectively private:' that is,
permitting the family of the deceased to
observe the hearing, for example, but no one
else other than the jurors, herself, and the
state#s attorney?

You have provided us with the background information -.
that prompted your questions. A father, mother, and two
children, a boy and a girl, died in their home during the
early morning hours of March 4, 1990, in Euda, Hays County.
Under the circumstances you have related, an lqinguestl' was
required under article 49.04 of the Code of Criminal
Procedure. The justice of the peace in the precinct
conducted an ~~inguest** that resulted in the justice
requesting Dr. Robert Bayardo, Medical Examiner of Travis
County, to perform autopsies on the four deceased persons.
See Code Crim. Proc. art. 49.10. Following the autopsies,
Dr. Bayardo made findings that the mother and two children
came to their deaths as the result of gunshot wounds and
that the father's death was the result of a gunshot wound,
self-inflicted. You have furnished us with the autopsy
reports that reflect in detail the procedures employed in
the examination and the conclusions reached by the medical
examiner. YOU advise that the justice of the peace's
inquest findings correspond with the conclusions reached in
the autopsy reports. On March 23, 1990, the justice of the
peace filed death certificates reflecting that the mother
and two children died of gunshot wounds. On March 29, 1990,
the justice filed a death certificate for the father that

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 Honorable Charles W. Chapman - Page 3 (JM-1202)

found the cause of death to be. gunshot wounds,
self-inflicted.1

You relate that on April 15, 1990, the remains of the
father and son were removed from the cemetery at the request
of the next of kin of the father. See Health 8 Safety Code
5 711.004. Autopsies were performed on their remains by the
Bexar County Medical Examiner, Dr. Vincent J. M. Dimaio.
You have been advised that Dr. Dimaio concluded that it
would be necessary for him to have the benefit of further
evidence before he could reach a decision. You state that
about June 15, 1990, you were advised by the justice of the
peace that conducted the **inquest* that she had set an
"inquest hearing" for June 27, 1990. This hearing has been
continued to an indefinite date. You state that you did not
request the "inquest hearing," and in the event such a
hearing is held, you are going to ask for a jury.

You ask whether the justice of the peace may hold an
l@inguest hearing" after findings have been made as the
result of the ~~inguest.~~

Article 49.01 of the Code of Criminal Procedure defines
P "inquest@* and "inquest hearing," as follows:

(2) 'Inquest' means an investigation into
the cause and circumstances of the death of a
person, and a determination, made with or
without a formal court hearing, as to whether
the death was caused by an unlawful act or
omission.

(3) 'Inquest Hearing' means. a formal
court hearing held to determine whether the
death of a person was caused by an unlawful
act or omission and, if the death was caused
by an unlawful act or omission, to obtain
evidence to form the basis of a criminal
prosecution.

1. Attorney General Opinion H-1064 (1977) concluded
that where it is determined that an erroneous cause of death
is shown in a death certificate, the error may be corrected
in accordance with rule 51a of article 4477, V.T.C.S., (now
see Health & Safety Code 5 191.028) by the attachment of an
amending certificate.

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Honorable Charles W. Chapman - Page 4 ~(JM-1202)

Article 49.05 requires that the justice of the peace
shall conduct an inquest immediately or as soon as
practicable after the justice of the peace is notified of
the death. Article 49.03 of the Code of Criminal Procedure
states that the powers granted and duties imposed on the
justice of the peace are independent of the powers and
duties of a law enforcement agency investigating a death.

Under article 49.14 of the Code of Criminal Procedure
an "inquest hearing" may be held under the following
circumstances:

(a) A justice of the peace conducting an
inquest may hold an inquest hearing if the
justice determines that the circumstances
warrant the hearing. The justice shall hold
an inquest hearing if requested to do so by a
district attorney or a criminal district
attorney who serves the county in which the
body was found.

Subsection (b) allows an "inquest hearing" to be held with
or without a jury unless the district attorney requests that
the hearing be held with a jury.

We do not construe article 49.14 to provide for a
hearing to review an earlier determination as to the cause
of death made at the inquest. We believe the provisions of
article 49.14 are to be utilized when the justice of the
peace or the district attorney feel that there is
insufficient evidence available to make a determination as
to the cause of death. Evidently, the justice of the peace
felt that an article 49.14 hearing was unnecessary at the
time she made her findings. The conclusions as to cause of
death in the four death certificates is certified to be
"on the basis of examination and/or investigation, in my
opinion, death occurred at the time, date, and place due to
the cause(s) and manner as stated." Apparently, you were
satisfied as to completeness of the investigation since YOU
state that you did not request a hearing.

The Supreme Court of Texas in Boehme v. Sovereian Camv
Woodmen of the World 84 S.W. 422 (1905) contrasted an
inquest conducted und& our statutes with an inquest at
common law. The court stated that, unlike a common law
coroner's inquest, our statutes provide no means for
traversing the finding, "nor is any method whatever secured
for the correction of an erroneous finding." See 78
A.L.R.Zd 1219 Coroner's ,Inouest. Under our statutes an
-,

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Honorable Charles W. Chapman - Page 5 (JM-1202)

inquest proceeding does not have to be public. The hearing
at common law was public. In refusing to admit the results
of an 'inquest finding of suicide in a suit against an
insurance company, the Boehme court noted the pit-falls
attendant to allowing the admission of the results of an
inquest. We believe the observations of the court in Boehme
may be relevant to the issue of whether to allow a justice
of the peace to hold a second hearing proceeding after
having made a decision as to the cause of death. In Boehme,
the court stated:

The purpose of such inquest under our law
is merely to detect crime, and to take the
preliminary steps to secure a trial of the
supposed offender.

. . . .

Especially do we think that it was not a
purpose of our lawmakers to make the inquest
a means of perpetuating testimony to be used
in a civil suit, or by the finding of the
justice to manufacture evidence for a use in
a case between other parties. Commenting
upon the impolicy of such a rule, Chief
Justice Hayt, of the Supreme Court of
Colorado, says : 'In case of death under
suspicious circumstances, or resulting from
accident, the rule permitting inquisitions to
be used in evidence would result in a race
and scramble to secure a favorable coroner's
verdict, that would influence, and perhaps
control, in case suit should be instituted
against life insurance companies upon
policies of insurance, and in cases of
accidents occurring as a result of negligence
on the part of corporations operating
railways, street car lines, mining for coal
or the precious metals, et cetera. Law
writers, of late, have frequently anim-
adverted upon the carelessness with which
such inquests are frequently conducted, and
to allow inquisitions to be used in a suit
between private parties upon a cause of
action growing out of the death of the
deceased, as in this case, would be to
introduce an element of uncertainty into the
practice, which we think would be contrary to
public policy and pernicious in the extreme.

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Honorable Charles W. Chapman - Page 6 (JM-1202)

Germania. win, 24 Colo. ,..:,'
43, 51 Pac. 488, 65 Am. St. Rep. 215.

Smith, Coooeration Between Law and Science &
Scientific Proof, 20 Tex. L. Rev. 433 (1941) reviews short-
cominas of our svstem of allowina iusticer of the peace to
perform the fun&ion of the coroner-at common law.2-

The justice, being an elected officer, is
not free from the possibility of political
pressure, and his short term of office does
not permit him to accumulate experience in
his very occasional duties as coroner. His
jurisdiction is ended if he believes the case
to be suicide. Inquest seems hardly
available in behalf of an accused who would
bolster his protested innocence by scientific
confirmation. The proceeding is given the
form of a judicial inquiry while having few
of its incidents. It does not permit of
traverse or appeal, and the verdict reached
is not res adiudicata. Indeed, by the better
view, it ' inadmissible both on the
subsequent
. hiiicide trial and in any civil _.
:~-
litigation based on the death. The inquest
is but a preliminary device to gather
evidence in connection with possible criminal
proceedings, being auxiliary to and in aid of
both the examining trial and subsequent grand
jury deliberations.

. . . .

The Texas system of investigating sudden .,-,
death interposes a lay judgment between ..
,.~
consecutive steps of a scientific inquiry in
which time is of the essence, and oft times
the evidence is evanescent.

2. Article 49.25 of the Code of Criminal Procedure
requires counties having a population of 500,000 or more
(and not having a reputable medical school) to provide a
medical examiner to conduct inquests rather than justices of
the peace.

p. 6366
.

Honorable Charles W. Chapman - Page 7 (JM-1202)

The Court of Criminal Appeals in Fishbeck v. State, 225
S.W.2d 854 (1948) stated that under articles 969 (now
article 49.09) and 927 (now article 49.08) of the Code of
Criminal Procedure, a justice of the peace was authorized to
order the disinterment of the deceased's body on February
12, 1947, for the purpose of holding an inquest despite the
fact that an inquest had been held on June 9, 1945,
following the death of the deceased. The reason given by
the justice of the peace for the subsequent proceedings was
that the first inquest "was incomplete and inconclusive."

Article 49.09 (formerly article 969)3 of the Code of
Criminal Procedure provides:

(a) If a body subject to investigation
under Article 49.04 of this code is interred
and an authorized oerson has not conducted an
inouest required under this subchapter, a
justice of the peace may direct the disinter-
ment of the body in order to conduct an
inquest. (Emphasis added.)

Article 49.08 (formerly article 927) of the Code of
Criminal Procedure states:

_~ A justice of the peace conducting an
inquest may act on information the justice
receives from any credible person or on facts
within his knowledge.

The court concluded that the portion of the justice of
the peace's order directing a second inquest and opinion
testimony given at the subsequent inquest were admissible in
a murder trial. Courts, other than in m, appear to
have consistently followed Boehme in holding that findings
at an inquest are not admissible. See. e.a., Armstrona v.
-Casualtv C OS, 357 S.W.2d 168 (Tex. Civ. App. -
Waco 1962, no writ): Comb'ned
) Ame 0. v. McCall, 497

3. Article 969 lacks the clarity of article 49.09.
Article 969 provided:

Section 1.' When a body upon which an inquest ought to
have been held has been interred, the Justice may
cause it to be disinterred for the purpose of holding
such inquest.

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Honorable Charles W. Chapman - Page 8 (JM-1202)

S.W.Zd 350 (Tex. Civ. App. - Amarillo 1973, writ:bref?d
n.r.e.). .-::
5 ..~"
":

The court in Fishbeck relied solely on articles:-;<969
(now article 49.09) and 927 (now article 49.08) in reaching
its conclusion despite the fact that article 969, as .-does
article 49.09, conditions the disinterment and inquest:,,on
there not having been an inquest previously held ,by,.' a
qualified person. Under the circumstances you have related
a proper authority held an inquest and ordered a medical
examiner to perform autopsies on the bodies of the deceased
persons. To follow Fishbeck would be contrary to-: the
express provisions of article 49.09 and place no limit-asto
time or the number of inquests that might be held so lbnb‘as
the justice of the peace had information from a-person'::.the
justice deemed credible or "facts within his own knowledge."

We believe that it was incumbent on the justice of the
peace at the inquest to make a determination as to whether
it was necessary to hold a formal hearing in order to, make a
determination as to cause of death. As pointed out in
Boehme, death resulting from suspicious circumstances
provides a setting for a race and scramble to secure a
favorable verdict. It is logical to assume that any
decision reached following an inquest will be unsatisfactory
to some of the interested parties under such circumstances.
Undoubtedly, this would result in pressure being applied to
a justice of the peace to hold a further proceeding in hope
that a result favorable to the persons urging such hearing
may be reached. We believe the statement by the court in
Boehme that once a finding is made, there is no means for
traversing the finding, would be the conclusion of a.'~;IT&ritt
confronted with the scenario you have related. .~.
,_..,
'...i i

It must be recognized that an inquest finding i$;';notto
be equated with a final judgment rendered by a court."'!".The
inquest hearing is held for the sole purpose of detecting
crime. 44 Tex. Jur. 3d Inouestg § 8 (1985).. The .-&&eity
granted a justice of the peace in holding an inquest ri's
independent of the powers and duties of law enforcement
authorities in investigating a death. Code Grim. pe&-?, &&.
49.03. Clearly, an inquest verdict does )y-&Iprec3&~ .,, .'ia
grand jury investigation into violations of the law.. See
Code Crim. Proc. art. 20.01. Nor does it precltie ',a
district judge from conducting a court of in#i~ljy .1%~xhe
judge believes an offense has been committed against the
laws of this state. Id. art. 52.01. Article.49 ;!I'5 fd):: of
the Code of Criminal Procedure provides that the-:jiistficeiof
the peace shall deliver a copy of the inquest summa* report

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Honorable Charles W. Chapman - Page 9 ,(JM-l202)

to therdistrict clerk who is to retain the report "subject
to an'order of the district court.**

~.~We,?believethat it is incumbent upon a justice of the
peace.or the district attorney to determine whether an
"inquest hearing" is necessary in making a determination as
tocause of death before a finding is made following the
Winguest.80

AS you advise, the remainder of your questions are
contingent on our concluding that an inquest hearing may be
ordered after a finding has been rendered at an inquest. We
conclude that no such inquest hearing may be ordered under
the circumstances, and therefore we do not address your
remaining~ questions.
SUMMARY

The determination of whether an inquest
hearing is to be held must be made at the
inquest. Subsequent to findings being
rendered as to cause of death at an inquest,
a, justice of the peace may not order an
i.nguest hearing.

J I,M MATTOX
Attorney General of Texas

MARY&lX.LER
First Assistant Attorney General

Lou MC-Y
Executive-Assistant Attorney General

JUDG~:~~IE:STEAKLEY
Special &asi,stant Attorney General

RENEA lmxs
Speci:sl -&s~si.stent
Attorney General

RICK GIL@IN
Chairmqq,, ,Gpinion Committee

Prepared;by Tom G. Davis
Assistant Attorney General

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