Eoc>rable Henry Wade Opinion NO. w-1261
Diz:;.nict
Attorney
Dallas County Re: Authority of a ,ju&ticeof the
Dallas, Texas peace to order an autopsy to
determine cause of death not
Dear Mr. Wade: the result of a crime.
You recently requested an opinion from this office on
the following question:
"Whether or not Sections 5,6 and 7 of
Article 968 of Vernon's C.C.P. and Article
4477, Rules 43 atid.Qlaof the Sanitary Code
of the State of Texas provide for a Justice
of the Peace to hold an inquest and order
an autopsy, if necessary, to determine the
cause q death of a deceased person whose
death is not the result of a crime and is
not related to the.detectlon of.crime?"
Vernon's Code of Criminal Proce.dureprovides as.follows:
,"Any Justice bf the Peace shall be author-
ized, and It shall be his,duty, to hold in-
“1. When a person dies In prison or in
jail.
"2 . When any person Is killed; or from
any cause dies an unnatural death, except
under sentence of the law; or dies in the
absence of one or more good witnesses.
“3. When.the body of a human being is
found, and the circumstances of his death are
unknown.
“4. When the circumstances of the death
of any person are such as to lead to suspicion i
that he came to his death by unlawful means.
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Hon. Henry Wade Page 2 Opinion No. ~~-1261
“5. When any person commits suicide, or
the circumstances of his death are such as to
lead to suspicion that he committed suicide.
“6. When a~person dies without having
been attended by a duly licensed and prac-
ticing physician, and the local health officer
or registrar required to report the cause of
death under Rule 41a, Sanitary Code of Texas,
Article 4477, Revised Civil Statutes, General
Laws, Forty-sixth Legislature, 1939, page
343, does not know the cause of death. When
the local health officer or registrar of vital
statistics whose duty it 1s to certify the
cause of death does not know the cause of
death, he shall so notify the Justice of the
Peace of the precinct in which the death oc-
curred and request an Inquest.
“7. When a person dies who has been attended
by a duly licensed and practicing physician or
physicians, and such physician or physicians are
not certain as to the cause of death and are un-
able to certify with certainty the cause.of
death-as required by Rule 40a, Sanitary Code of
Texas, Article-4477, Revised Civil Statutes,
Chapter 41; Acts, First Called Session, Fortieth
Legislature, 1927, page 116. In case of such.
uncertainty the attending physician or physicians,
or the superintendentor general manager of the
hospital or. institution In which the deceased
shall have died, shall so report tomthe Justice
of the Peace of the precinct In which the death
occurred, and request an inquest.
"The lnquests‘authorised and required by this
Article shall be held by the Justice.of the Peace
of the precinct in which the death occurred, but
'inevent the Justice of the Peace of such pre-
cinct is unavailable, or shall fall or refuse to
act, then such Inquest shall be conducted by the
nearest available Justice of the Peace In the
county in which the death occurred."(Emphasis added)
Subdivision 5,6 and 7 and the unnumbered paragraph fol-
lowing subdivision
_ _ _I_ 7
-.were added to this article'by the amenda-
tory act of lyq{. There are no appellate court decisions
relating to the 1947 amendment. However, the language of the
.
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Hon. Henry Wade Page 3 Opinion No. WW-1261
statute is clear and unambiguous. A duty is placed upon the
justice of the peace to order inquests In the cases set out.
Article 970 sets out the conditions under which
autopsys must be held. This statute provides in part as
follows:
"Upon an inquest held to ascertain the
cause of death, the Justice of the Peace
shall in all cases call in the county health
officer, or if there be none or if his ser-
vices are not then obtainable, then a duly
licensed and nracticlng physician, and shall
procure their opinions and advice as to the
necessity of an autopsy before reaching a
determination as to whether or not to order
an autopsy to determine the cause of death...."
From this sentence we conclude that a justice of the peace is
only required to consult with the county health officer or
if he Is not obtainable a duly licensed and practicing
-_physi-
_
cian about an autopsy as an aj.dor incident to an Inquest.
Article 970, Code of Criminal Procedure, was also
amended In 1947. Part of this amendment provided:
"If upon his own determination he deems
an autopsy necessary, the justice of the
peace shall request the county health officer,
or if there be none or if it be impracticable
to secure his services, then some duly
licensed and practicing physician who Is
trained In pathology, to make an autopsy in
order to determine the cause of death, and
whether dearthwas from natural causes or
resulted from violence, and the nature and
character of either of them."
.From this sentence we conclude that It is entirely discretion-
ary with the justice of the peace whether or not an autopsy
is necessary to determine the cause of death. We construe
these twcssntencez together to mean that when an inquest is
held the justice of the peace shall "consult" with the county
health officer or if his services are unobtainable, some duly
licensed and practicing physician as to whether an autopsy
shall be held to.determlne the cause of death. It is entirely
discretionary with him whether or not the autopsy is held.
The statute does not require such an autopsy. Under Rule &la
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Hon. Henry Wade Page 4 Opinion No. ~~-1261
of Article 4477, V.C.S., the justice of the peace may feel
that an autopsy,must be performed before making the certi-
ficate of death. This again Is within his discretion and
under Article 970 it makes no difference whether the death
resulted from natural causes or from violence.
It is, therefore, our opinion in answer to your
question under Article 968 of Vernon's Code of Criminal
Procedure that a justice of the peace must hold, and is re-
quired to hold, an Inquest to determine the cause of death
under cases set out therein. Whether or not an autopsy
should be performed Incident to such inquest is discretion-
ary with the justice of the peace. Under Section 970,
.Vernon'sCode of Criminal Procedure, the justice of the
peace is not "required" to order an autopsy.
SUMMARY
A justice of the peace Is required to
hold an'in uest In all cases set out in
Article 96 % of Vernon's Code of Crlmlnal
Procedure. Article 90 does not "require"
an autopsy In all ca6es. Whether an
autopsy Is to be performed In connection
with an inquest 1s discretionary with the
justice of the peace.
Yours very truly,
!jzzkTwI&
NVS:sh Assistan; Atto ney Gener 1
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Fred D. Ward
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee,Jr.