August 22, 1950
Eon. Gee. W. Cox, M.D. Oplnlon Bo. v-1094.
State Health Officer
Department of Health Re3 The legal.ltyof crema-
Austin, Texas tion without first ob-
taining the certificate
of a Justioe of the
Peaoe that an autopsy
vas performed or is un-
Dear Sir% necessary.
Your recent re.ques$for an opinion from this
office reads in part as follows,
"A question @s been,ralsedby one
Of the izretitoriesin this State concetin-.~
ln~ the proper interpretationof Section
2, Artiole.969, Code of Criminal Procet
durii
.
'Please advise aw if a oertlficatk 1:
statFng.t$atau autopsy was performed ,m
@at po%mt$Qxq was'necesa~,should be
.onlythose .inswoes where
reqpired.,lti
-, the death.Feoordshcws ,that,anzinqu6st
was-held? OP, should'themner or oper-
ator of'a,crematoryb@ze orematingus
body-d&aand.andbe furnished,witha oer-
tlflcate signed by the ~justioe'6fthe'
peace of the preotict in which the death
occurred stating that an a*opsy was per-
formed or that 'no~.autopsy
was ne~cessary?"
Section 2 of Article 969, v'.C.C.P.,provides:
'Before anybody, ~uponwblch an in-
quest is authorized by the proVisIons of
Article 968, Code of Crlmlnal Procedure,
1925, as herein amended, can be lawfully
cremated, an autopsy shall be perfomed
thereon as provided in this Act, or a cer-
tificate that no autopsy was necessary
shall be furbished by the Justice of the
Peace. Before any dead body can be law-
fully cremated, the owner or operator of
. 1
Hon. Gee. X. Cox, M.D., page 2 (V-109)
the crematory shall demand and be fur-
nished uith a certificatesigned by the
Justice of the Peace of the justice pre-
cinct in which the death occurred sharing
that an autopsy was performed on said body
or that no autopsy thereon was necessary.
Ho autopsy shall be required by the Jus-
tice of the Peace as a prerequisiteto
cremation in case death was aausedby the
pestilentialdiseases of Aslatlc cholera;
bubonic plague, typhus feiver,or SarallpoX,
named in Rule 77, Sanitary Cod& of Texas,
Article 4477, Revised Civil Statutes of
Texas, 1925. All certificatesfurnished
the omer or operator 0f.a orematoryby
any Justioe,of the Peace, under the terms
of this Act, Shall be preserved by-such
owner or operator of such crematoryfor a
period of two (2) years from the date of
the cremation of said body."
It must be admitted that this statute Is not
free from ambiguity.
It is stated in Texarkana & Ft. S. Ry. v.
Houston Qas & Fuel Co., 121 Tex. 594, 601, 51 S.W.28
2m, 287 (19321:
"In oonstruing~statuttjsenaoted di-
reotly by the'Le@slature it l%the duty
of the court to look to the entire act,
Including the caption, the body of~the
act, and even the emmgenoy clause, to
determine the legislative intent. When
the legislativeIntent $13auoe determin-
ed It Is the law."
In Rldalgo County Dralnane Mst.Ro.1 v. Davld-
8011,102 Tex. 539, 543, 120 S.W. 049, 851 (1909], it 1s
stated at page 851:
"In determiningthe sense in which
the language was used by the Le lslature,
we will look to context and to &he purpose
of the Legislature in enacting the law.'
Also, in Longoria v. State 126 Tex. Crlm. 362,
363, 71 S.W.2d 268, 269 (19341, we dnd the following:
- . .
Hon. Geo. W. Cox, M.D., page 3 (V-1094)
"We further observe that in aooord-
anoe with settled rules of interpretation
of statutes, even when the language used
IS susceptible,oftwo meanings, the courts
are to give It that meaning whlch,till con-
form to the scope of the act and carry out
the purpose of the statute. Mr. Black, ln
his Hornbook on Interpretationof Iaws, p.
56, lays downthe rule tbat,wherethe lan-
guage used Is ambiguous, or admits of more
than one meaning, It is to be taken ln such
a sense as will conform to the scope of the
act and oarry out the purpose of the stat-
ute.'
House Bill 217, Aots 50th Leg. 1947, ch.369,
p.745, amended Articles 968, 969, 970, 971, and 1053,
Vernon's Code of Crlmlnal Procedure,and Section 1 of
House Bill 613 Acts 46th Leg. 1939, ch. 1, p- 343.
All of these sCatutes deal with Inquests.
The emergency clause of House Bill 217, supra,
provides In part:
"The fact that Justices of the Peace
and physicians and chemists are now under-
paid for their services ln connectionwith
the holding of inquests and the performing
of autopsies on dead bodies; the fact that
public health officers and registrars of
vital statistics informationnow have no
means of ascertaining the cause of death,
in certain oases, as required by the Sanl- :
tary Code of Texas; and the further fact
that, as a safeguard in the detection and
prevention of crime, dead bodies should not
be cremated until the cause of death is de-
termined; . . .'
We believe that the Legislature,ln passing
House Bill 217, was considering only those instances ln
which inquests were authorized to be held. To hold that
such a certificate is required in all oases would be re-
qulrl the Justice of Peace to Issue a certificate as
2 s of which he oouIU have no direct knowledge In
to fat
the absence of'an Investigation. The statutes do not
authorize investigationsby the Justice of the Peace ex-
cept in connection with inquest proceedings.
. , .
Hon. Geo. W. Cox, M.D., page 4 (V-1094)
Therefore,we agree with you that a oertlfl-
oate stating that an autopsy was performed or that no
autopsy was necessary shoulU be required only in those
instances where the death record shows that an inquest
was held.
SOMMARY
A certificatestating that an au-
topsy was performed or that no autopsy
was necessary is a prerequisitefor
cremation only when the death record
shows an inquest was held. The opera-
tor of a crematoryIs not required to
get a certificatesigned by the Justice
of the Peace of the precinct In which
the death occurred, stating that an au-
topsy was,held or that no autopsy was
necessary, In any other case before
cremating a body.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Everett Hutohlnson
ExecutiveAssistant
Charles D. Mathews
First Assistant
By
hi%%% Assistant
.