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THE A~XM~NEY GENERAL
OF -XAS
AUSTIN. TRXAH W&711
April17, 1972
Honorable Oscar 8. McInnis Opinion No. M-1119
Criminal District Attorney
Hidalgo County Courthouse Re: Authority of the the Jus-
Edinburg, Texas 78539 tice of Peace to order
the removal of a finger
from a deceased person
for the purpose of de-
termining the identity
of such person under
Article,49.03, Code of
Criminal Procedure, and
Dear Mr. Mclnnisr related questions.
Your recant request to this office for an opinion reads
as follows:
”1 . Whether the Justice of'the Peace may by
proper order, authorize the removal of a finger
from a deceased person for the purpose of deter-
mining the identification of such person?
"2 . Whether the Justice of the Peace may
order and authorize any person other than a
County Health Officer or a duly licensed and
practicing physician trained in pathology to
remove such a finger from such deceased person
for the purpose of determining identification
of such deceased person?
"3 . Whether the Justice of the Peace may
by proper order authorize a Peace Officer, who
is specially trained in identification work,
to remove a finger from a deceased person for
the purpose of determining identification of
such deceased person?"
The statute pertinent to the question is set out as fo,l-
lows: Article 49.03, Code of Criminal Procedure, as amended by
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Honorable Oscar B. McInnis, Page 2 (M-1119)
House Bill No. 1354, 61st Legislature, Regular Session (1969)
reads as follows:
"The justice of the peace may in all cases 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 advice on whether
or not to order an autopsy to determine the cause
of death. If upon his own determination he deems
an autopsy necessary, the justice of the peace shall,
by proper order, request the County Health Officer,
or if there be none or if it be impracticable to
secure his service, 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 death was from natural causes
or resulting from violence, and the nature and
character of either of them. The county in which
such autopsy and inquest is held,shall pay the
physician making such autopsy a fee of not more
than $300, the amount to be determined by the
Commissioners Court after ascertaining the amount
and nature of the work performed in making such
autopsy. In those cases where a complete au-
topsy is deemed unnecessary by the justice of the
peace to ascertain the cause of death, he may by
proper order, order the taking of blood samples
or any other samples of fluids, body tissues or
organs in order to ascertain the cause of death
or whether anv crime has been committed. In the
case of a boa> 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 as are required to determine
the identity as well as the cause of death."
(Emphasis added).
In Attorney General's Opinion No. M-425 (1969), this of-
fice ruled that the authority to order an autopsy is derived
exclusively from the statute.
Under the last sentence of Article 49.03, Code of Criminal
Procedure, the Justice of the Peace has the authority to order
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Honorable Oscar B. McInnis, Page 3 (M-1119)
investigative and laboratory tests and processes as are required
to determine the identity of a body in the same manner as in
ascertaining the cause of death.
We answer your first question, therefore, that a Justice
of the Peace, or other officer authorized in his absence, has
the authority to order the removal of a finger from a deceased
person for the purpose of determining identification of such
person.
In answer to the second question, Article 49.03 limits
a Justice of the Peace or other proper officer to authorize
only a County Health Officer or a duly licensed and practicing
physician trained in pathology to.make an autopsy. Attorney
General's Opinion No. M-427 (1969). Therefore, the Justice
of the Peace may authorize only a County Health Officer or
a duly licensed and practicing physician trained in pathology
to remove such finger for the purpose of determining identifi-
cation of such deceased person.
Our answer to your second question requires your third
question to be answered,in the negative.
Our conclusion is .that under Article 49.03 a Justice of
the Peace or any other officer may not order anyone other than
a County Health Officer or a duly licensed and pr,acticing.phy-
sician trained in pathology to take a finger from a,bocly,in
order to ascertain the identity. However, the Justice of the
Peace can order a peace officer or any other specially trained
person in identification work to complete tests for identifi-
cation purposes.
SUMMARY
-------
Under Article 49.03, Vernon's Code of Criminal
Procedure, as amended by House Bill No. 1354, 61st
Legislature, Regular Session (19691, a Justice of
the Peace or other proper officer may not order
any person other than a County Health Officer or
a duly licensed and practicing physician trained
in pathology to take a finger from a body in order
to ascertain identity. After the removal, the
Justice of the Peace can order any person specially
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Honorable Oscar B. McInnis, Page 4 (M-1119)
trained in identification work to complete tests to
determine ,identity.
very ply,
Preparedby Robert Darden
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Herschel T. Moore
Linward Shivers
Lynn Taylor
Jim Swearingen
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NC&A WHITE
First Assistant
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