THEATTORNEY GENERAL
OFTEXAS
Au~~~N~~.%'ExA~
PRICE DANIEL
ATTORNEY
GENERAL
July 8, 1948
Eon. John C, Marburger Opinion No, V-625
County Attorney
Fayette County Rle: Necessity for a Justice
La Grange, Texas of the Peace to hold an
inquest and fees for such
service.
Dear Sir:
You submit the following factual situations
shown by the records of' the Justice of the Peace and
questions pertafnfng thereto:
Record entries:
"1 was notffied by phcne ,by the local
undertaker to hold an inquest, That a man
identified as -- had died on the La Grange
Public Square, Deceased had fallen on the
sidewalk and had suffered with heart trou-
ble, Information received from DP, Frank
Guenther, (physician and county health of-
ficer); A. V, Smith, Constable Precinct No,
1, T, J, Flournoy, sheriff, and other on
the scene witnesses there was no e;;ieru&e
of any crinfnal action involved;
quest was held at 5830 p.m, Ffndfngs of
the Justice of the ?eace were and I repeat,
'I find the deceased died instantly from
natural causes - Heart Attackog
"About 7%30 porn0 Dr, A. called at my
residence and informed me that I should go
with hfm to Mr, BQs Farm to hold an inquest
on the body of Miss C, Mfss.C, had been
killed by lightning, When we arrived at
Mr, Bts farm he fnformed'us that Miss C. had
taken .a hoe with her and,walked to'the gar-
den, After a short time ft began to light-
en and thunder, Mr, B, saw a flash of light-
nfng near the garden and Miss C failure to
return walked to the garden and saw her lay-
fng on her back wfth the hoe in hand clasped.
Hon. John C. Marburger - Page 2 (v-625)
Dr. A and I examined her and are posi-
tive that she was killed by lightning.
There were marks on the hoe handle show-
ing where lightning struck,”
Your que,stions are:
1.~ “Was it necessary that an in-
quest be held in either of the above
fact situations?
2. “Would the Justice be entitled
to an inquest fee in either case?
39“Is the Justice of the Peace re-
quired to hold an inquest before he can
issue a burial or removal permit where
there is a county health officer and when
there is no evidence or suspicion that the
deceased died by violence, unlawful means
or from an unnatural cause?”
Article 968 of Vernon’s Code of Criminal Pro-
cedure authorizes the justice of the peace to hold an
inquest in the following instances:
1%
. . . 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 wit-
nesses.
“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
suspiaion that he came to his death by un-
lawful means D
“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 hav+
ing been attended by a duly licensed and
.
Hon. John C. Marburger - Page 3 (V-625)
practicing physician, and the local health
officer or registrar required to report the
bause of death under Rule 41a, Sanitary
Code of Texas, Article 4477, Revised Civil
Statutes, General Laws, Forty-sixth Legis-
lature , 1939, page 343? does not know the
cause of death. When the local health of-
ficer or registrar of vital statistics
whose duty it is 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 occur-
red and request an inquest.”
In Pierson v. Galveston County, 131 S. W. (2d)
27, the Court said in part:
“The holding of inquests upon dead
bodies is governed by Arts. 968-989 of the
Code of Criminal Procedure, Art. 968 gives
the circumstances under which the justice
is authorized to hold an inquest. Art. 975
reads: ‘Witnesses shall be sworn and exam-
ined by the justice and their testimony re-
duced to writing by or under his direction,
and subscribed by them,’ Art. 987 reads:
‘Tbe justice holding an inquest shall cer-
tify to the proceedings, and shall enclose
in an envelope the testimony taken, the
finding of the justice, the bail bonds, if
any, and all other pap,ers connected with
the inquest , shall seal up such envelope
and without delay deliver it properly en-
dorsed to the clerk of the district court,
who shall safely keep the same in his office
subject to the order of the court L1
“Art 0 1053 provides: ‘A justice of the
peace shall be entitled, for an inquest on a
dead body, including certifying and return-
ing the proceeding to the proper court, the
sum of five dollars 9 to be paid by the county.
. 0 0
“In no instance was any witness sworn
or any testimony transcribed, Nor was any
record made or certified from which the
names of the witnesses might be ascertained.
Hon. John C. Marburger - Page 4 (v-625)
Pierson testified that he made no investi-
gation in each case and satisfied himself
as to the cause,of death, and that there
was no evidence of ‘foul play.‘, Consequent-
ly he ‘determined there was no necessity to
take testimony or make any record or certi-
ficate except that above stated. He testi-
fied that in some instances he got his in-
formation over the telephone.
“Generally speaking, the purpose of
a coroner’s inquest ‘is to obtain inform-
ation as to whether death was caused by
some criminal act and to obtain evidence
to prevent the escape of the guilty, as
well as to furnish the foundation for a
criminal prosecution in case death is shown
to be felonious.’ 13 Am. Jur. p. 108. Fur-
ther from the same textr ‘It is necessary
for a coroner to determine whether a stat-
ute contemplates the holding of an inquest
in a particular case. o e Generally speak-
ing, the determination of the question
whether an inquest shall be held rests,
within certain limitations, in the sound
discretion of the coroner.’
We think the evid.ence shows clearly
that no inquest was held in any of the dis-
put ea cases. All Pierson did was to make
an informal investigation to determine
whether an inquest was necessary; and hav-
ing reached the conclusion there was no
evidence of ‘foul play,’ he determined
that question in the negative and held no
inquest O The statutory fee is for Ian in-
quest on a dead body, including certifying
and returning the proceedings to the proper
court O1 This was not done in any of the
disputed instances, and the statutory fee
was not earned,”
The first factual situation presented inyour
letter indicates that the deceased fell dead on a side-
walk in La Grange, in the presence of the sheriff a
constable and other witnesses. There, death was hrom
natural causes, by reason of which it was not necessary
r .
Bon, John C. Marburger - Page 5 (v-625)
that an inquest be held in that case, and we answer
your question concerning your first factual situation
in the negative.
The second factual situation presented in
your letter indicates that there was no witness to the
cause of death of Miss C1 The circumstances recited
are persuasive but not conclusive, by reason of which
the advisability of an inquest was within the sound
discretion of the justice of the peace, Such was not
mandatory as a matter of law.
There is no mention that any hearing was had,
any witnesses examined, or their testimony reduced to
,writing and subscribed by such witnesses as provided
by Article 975 of Vernon's Code of Criminal Procedure.
Article 987 requires the justice of the peace
to certify to the proceedings and deliver the papers to
the district clerk, Article 1053 provides that the jus-
tice of the peace for an inquest, including certifying
and returning the proceedings to the proper court, sb&il.
receive the sum of ten dollars.
We hold that under the Pierson case above dis-
cussed and under the facts submitted, there was no in-
quest held and no necessity therefor, as contemplated
by the Statutes. Your second question is therefore an-
swered in the negative.
Rule 38a, Article 4477, Vernon's Civil Stat-
utes, reads in part:
"That the body of any person whose death
occurs in this state, or which shall be found
dead therein, shall not be interred, deposit-
ed in a vault or tomb, cremated or otherwise
disposed of, or removed from or into any reg-
istration district, or be temporarily held
pending further disposition more than 72 hours
after death, unless a permit for burial, re-
moval, or other disposition thereof shall have
been properly issued by the local r ei tra of
the registration district in which thesdeath
occurred or the body was found."
Rule 36a of said article reads in part:
Hon. John C, Marburger - Page 6 fV-6251
.
"For the purpose of this Act . .
in the Justice of the Peace Precinit, the
Justice of the Peace shall be Local Regis-
trar, and in cities of two thousand, five
hundred (2,500) or more, according to the
last United States Census reports, the
City Clerk or City Secretary shall be the
Local Registrar of Births and Deaths . . ."
Rule 41a of Article 4477, Vernon's Civil Stat-
utes reads in part:
"In case of any death occurring with-
out medical attendance, it shall be the
duty of the undertaker or person acting as
such to notify the local registrar of such
death, and when so notified the registrar.
shall, prior to the issuance of permit, in-
form the local health officer and refer
the case to him for immediate investiga-
tion and certification; provided that when
the local health officer is not a physician,
or when there is no such official, and in
such cases only, the registrar is authorized
to make the certificate and return from the
statement of relatives or other persons hav-
ing adequate knowledge of the facts; pro-
vided further, that if the registrar or the
local health officer, as the case may be,
s in doubt as to the cause of death, or if
the case be one other properly referable to
a Justice of the Peace for inquest into the
cause of death, he shall then refer the
case to a proper Justicr of the Peace for
inquest, investigation, and certification.
And the Justice of the Peace' or other prop-
er officer whose duty it is to hold an in-
quest on the body of any deceased person,
and to make the certificate of death requir-
ed for a burial permit, D 0 oa
Opinion NO. O-231 by a former Attorney ^ . General
held that no duty is imposed on the justice OS the peace
. .
to nold an inquest by said Rule &la, Article 4477, but
his duty in that regard is controlled by Article 968,
Vernon's Code of Criminal Procedure. We enclose a copy
of that opinion for your information.
Ron. John C. Marburger - Page 7 (v-625)
We are of the opinion that a justice of the
eace is not required to hold an inquest before he may
P ssue a. burial permit except as provided in Rule 41a
of .qrticle 4477, supra,
A Justice of the Peace was not justi-
fied In holding an inquest on the death of
a man who fell dead on a sidewalk in the
presence of the sheriff, constable, and
other witnesses, and there was no question
of any criminal action involved.
Where a woman took a hoe and went in-
to her garden and was found dead in the
garden shortly after a flash of lightning,
with the hoe handle clasped in her hand
and there were no witnesses to the death,
the justice was authorized, in hls sound
discretion to hold an inquest to determine
the cause of death. In such case, where
the Justice of the Peace merely determined
that there was no foul play and where no
witnesses were sworn or examined by him and
their testimony reduced to writing and sub-
scribed by them, the Justice of the Peace
is not entitled to fees for holding such
inquests. Art. 975 C.C.Pz Pierson v. Gal-
veston County, 131 S. W. (2d) 27.
A Justice of the Peace is not required
to hold an inquest before he may issue a
burial permit but may do so in the exercise
of sound discretion. C.C.P* Art. 968 et
seq. Attorney General’s Opinion O-231,
Yours very truly,
APPROVED
I ATTORNEYGENERALOF TEXAS
R..S
A’i!TplkREYGRR
-~ ERAL -* -W. T. Williams
Assistant
WTWrwb
Encl.