Honorable James Paul Shanks @inion No. M-427
County Attorney
County Courthouse
Baird, Texas
Re: Whether a Justiae of the
Pea,cecan order any person
other than a County Health
Officer or a practicing
physician to take a blood
sample from a body in order
Dear Mr, Shanks: to ascertain cause of death
You have requested our opinion concerning whether a
Justice of the Peace may order any person other than a.County
Health Officer or a duly licensed-and practicing physician to
take a blood sample from a body in order to ascertain the
eauae of death.
The statute pertinent to the question Is set out as
follows:
Article 4g003, Vernon's Code of Criminal Procedure,
as amended by House Bill MO. 1354, 61st Legislature,
Regular Session, 1969:
"The justlce of the peace may in all
eases call in the County Health Officer, or
if there be none or if his services are not
then obtainable, then a duly licensed and
practicing physician, and shall procure their
opinions and their a.dviceon whether or not
to order a,na,utopayto determine the cause of
death. If UDOH~ his own determination he deems
%133-
Honorable Ja~mesPaul Shanks, page 2 (~-427 )
cause of death, and whether death was from
natural causes or resulting from violence,
and the nature and chara,cterof either of
them. The county in which such a,utopsya,nd
inquest is held shall pay the physician mak-
ing such autopsy a fee of not more than $300,
the amount to be determined by the Commis-
sioners Court after a,acertalnlngthe amount
a,ndnature of the work performed in making
such autopsy. In those cases where a,com-
plete autopsy is deemed unnecessary by the
justice of the peace to a,acertalnthe cause
of death, he may by proper order, order the
taking of blood sa,mpleaor any other samples
of fluids, body tissues or organs in order
to ascertain the cause of death or whether
any crime has been committed. In the case
of a body of a human being whose identity is
unknown, the justice of the peace may, by
proper order, authorize such Investigative
and laboratory tests and processes aa are
required to determine the identity as well
as the oause of death," (Emphasis added.)
Article 49.03 should be read in light of Article
&g,Ol, Vernon's Code of Criminal Procedure, as amended by
Senate Bill No. 79$ 61st Legislature, Regular Session, 1969,
which sets out the instancea in which an autopsy Is required
and names the officers authorized to order the sa.me.
If the justice of the pea.ce,or other officer authorized
under Article 49.01, deems an autopsy necessary, Article
49.03 specffically authorizes him to order the County Health
officer or a practicing physician trained in pathology to
perform It, The statute recognizes that there may be
instances where a complete autopsy la unnecessary, and in
those instances .thejustice of tha peace or other authorized
offieeF may order a parteal autopsy, that is, by the taking
of blood samplea and other samples from the body for the
purpose of determining the cause of death or whether any
crime has been czommitted. As a whole, Article 49,03 dea~ls
with autopsies, and regard&era of whether the autopsy ordered
is complete or partial, the Legislature has provided that
only County Health Qffieera and duly licensed physicians
trained In pathc&~~gycan be ordered to perform ft.
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Honorable Zamea Paul Shanks, page 3 (M-427 )
Our conclusion is that under Article 49.03 a
justice of the peace or other proper offfeer may not
order anyone other than a County Health Officer or a
duly Ifcenaed a~ndpracticing physician trained in
pathology to take a blood sample from a body In order
to ascertain cause of death.
SUMMARY
Under Article 49.03, Vernon's Code of
Criminal Procedure,as amended by House
Bill No. X354, 6lst Legislature,Regular
Sessionp 1969, a justice of the peace or
other proper officer may not order a,ny
person other than a County Health Officer
or a duly licensed and practicingphysician
trafwed in pathology to take a blood sample
from a body 1.norder to ascertain cause of
death.
Prepared by Charles R, Parrett
a,ndTom Needy
Aesfatant Attorneys @renen%l
APPROVED:
OPINION CONMTJTEE
Kerns TayLozroG-~&man
George KePtox,,Vint~...Chairman
Rick Fisher
Neil Will.fams
Bob Tattimo:c,,~
W, 0. Shulta
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