  ,. OFFJCE   OF   THE   ATTORNEY   GENERAL   . STATE   OF   TEXAS

    JOHN      CORNYN




                                                        October 15,200l



The Honorable Edwin E. Powell, Jr.                                   Opinion No. JC-0422
Coryell County Attorney
P.O. Box 796                                                         Re: Release of “provisional autopsy         report”
Gatesville, Texas 76528                                              maintained by a justice of the peace
                                                                     (RQ-0380-JC)


Dear Mr. Powell:

         The Justice of the Peace of Coryell County has received a request under the Texas Public
Information Act, chapter 552 of the Texas Government Code, for a “provisional autopsy report”
about a deceased inmate at a local facility of the Texas Department of Criminal Justice. At the time
of the request, there was no final autopsy report, and only the provisional autopsy report was
available.’ You requested a ruling on this matter from the Open Records Division of this office.
That division informed you that the Public Information Act does not apply to records maintained by
the judiciary and that the justice of the peace need not release the provisional autopsy report under
that Act.* See TEX. GOV’T CODE ANN. 50 552.003(1)(B), -0035 (Vernon 1994 & Supp. 2001)
(judiciary not subject to Act; access to information maintained by judiciary controlled by other laws
and rules).3 However, because section 402.043 of the Government Code authorizes a county
attorney to request legal opinions from this office, we can answer your question in an Attorney
General Opinion. A justice of the peace is not subject to the Public Information Act, therefore, the
provisions of that act cited in your brief do not apply to a provisional autopsy report. See TEX.
GOV’T CODE ANN. 95 552.022(a)(l)          (V emon Supp. 2001) (availability of a completed report);
552.108 (exception for certain law enforcement and prosecutorial information). This does not end
our inquiry as to whether the provisional autopsy report is subject to public inspection. We conclude



          ‘Letter from Honorable Edwin E. Powell, Jr., Coryell County Attorney,      to Open Records Division,   Office of
the Attorney General (Feb. 2 1,200l) (on file with Opinion Committee).

          *Letter from Stephan P. Agan, Assistant Attorney General, Open Records Division, Office of the Attorney
General, to Honorable Edwin E. Powell, Jr., Coryell County Attorney (Apr. 27,200l) (on file with Opinion Committee)
[designated as OR200 1- 17341.

         3Unlike an autopsy report maintained by a justice of the peace, the report of an autopsy conducted by a county
medical examiner is subject to chapter 552 of the Government Code. See TEX.CODE CFUM.PROC.ANN. art. 49.25,s
11 (Vernon Supp. 2001).
The Honorable Edwin E. Powell, Jr. - Page 2                  (JC-0422)




that a member of the public may inspect the provisional autopsy report pursuant to section 27.004
of the Government Code. See id. 8 27.004(a) (Vernon 1988) (records subject to inspection by
interested party at reasonable times).

         The justice of the peace conducted an inquest into the death of an inmate in a Department
of Criminal Justice facility located in Coryell County, and an autopsy was performed in connection
with that proceeding. See generaZZy TEX. CODECRIM. PROC. ANN. ch. 49 (Vernon 1979 & Supp.
2001) (inquests upon dead bodies), id. art. 49.1 O(e) (Vernon Supp. 2001) (justice of the peace shall
order an autopsy if necessary to determine or confirm cause of death, if prosecutor directs justice to
do so, or under certain circumstances where deceased is younger than six years of age). An
“inquest” is “an investigation into the cause and circumstances of the death of a person, and a
determination, made with or without a formal court hearing, as to whether the death was caused by
an unlawful act or omission.” Id. art. 49.01(2). In counties that do not have a medical examiner’s
office, a justice of the peace conducts inquests pursuant to chapter 49, subchapter A of the Code of
Criminal Procedure.4

         When an inmate dies in prison, the justice of the peace in the county must conduct an inquest
into that death, unless the inmate died of natural causes while attended by a physician or a registered
nurse or was executed. See id. art. 49.04(a)(l); see also TEX. GOV’T CODE ANN. 8 501.055(b)
(Vernon 1998). If an autopsy is necessary, the justice orders a physician to perform it. See TEX.
CODEGRIM.PROC.ANN. art. 49.1 O(f) (V emon Supp. 2001). The provisional autopsy report you have
sent shows that the autopsy was performed at the University of Texas Medical Branch in Galveston.
The Texas Department of Criminal Justice has submitted a brief accompanied by samples of
provisional and final autopsy reports concerning two deceased inmates from its facilities, and these
autopsies were also performed at the University of Texas Medical Branch in Galveston?

          The inquest record prepared by the justice must include the autopsy report, if an autopsy was
performed. Id. art. 49.15(a), (b)(8). “All papers of the inquest record must . . . be maintained in the
office of the justice of the peace and be made available to the appropriate officials upon request.”
Id. art. 49.15(a). The justice of the peace certifies a copy of the inquest summary report and delivers
it in a sealed envelope to the clerk of the district court. Id. art. 49.15(d). You wish to know whether
a “provisional” autopsy report should be made available to the public, or whether it should be
withheld pending receipt of the final autopsy report.




          4Any county may appoint a medical    examiner,   whose qualifications,   duties, and records are governed   by
subchapter B, Code of Crirninal Procedure.

            ‘Brief from Leonard W. Peck, Jr., Assistant General Counsel, Texas Department of Criminal Justice, to
Honorable     John Comyn, Texas Attorney General (June 4,200l) (on file with Opinion Committee) [hereinafter Peck
Briefj.
The Honorable Edwin E. Powell, Jr. - Page 3 (JC-0422)




         Chapter 49 of the Code of Criminal Procedure defines “autopsy” as “a post mortem
examination of the body of a person, including X-rays and an examination of the internal organs and
structures after dissection, to determine the cause of death or the nature of any pathological changes
that may have contributed to the death.” Id. art. 49.01(l) (Vernon Supp. 2001). Chapter 67 1 of the
Health and Safety Code, subchapter B, which states procedures for filing and disclosure of autopsy
reports, defines an “autopsy report” to include:

                        (1) the report of the postmortem examination of the body of
                a person, including x-rays and photographs taken during the actual
                postmortem examination; and

                         (2) the toxicology report, if any, and other reports that involve
                an examination of the internal organs and structures of the body after
                dissection.

TEX. HEALTH & SAFETYCODE ANN. 8 671.01 l(a) (Vernon Supp. 2001); see also id. 0 671.01 l(b)
(autopsy report does not include investigative reports and other documents that physician performing
the autopsy reviews in connection with determining cause of death).

         The term “provisional autopsy report” is not defined or used in chapter 49 of the Code of
Criminal Procedure or in chapter 671 of the Health and Safety Code, nor do we find this term
elsewhere in the Texas statutes. But see Pachecano v. State, 88 1 S.W.2d 537,542 (Tex. App.-Fort
Worth 1994, no writ) (referring to “preliminary autopsy report” and “autopsy report”); 25 TEX.
ADMIN. CODE 0 405.27 1(c)(7) (200 1) (death/discharge summary of person served by Texas Mental
Health & Mental Retardation Facility shall include “preliminary autopsy findings,” if available).
The brief from the Department of Criminal Justice explains that provisional autopsy reports “are
issued when some information about a cause of death is known, but important information is not yet
available.” Peck Brief, supra note 5, at 2. For example, tissue cultures and chemical scans may not
have been completed in time for the provisional autopsy report. Id.; see also Hayden v. Ins. Co. of
N Am., 490 P.2d 454,457 (Wash. Ct. App. 1971) (provisional autopsy report is routinely made on
the basis of initial studies, while complete report consists of initial findings as well as any other
studies that may help establish cause of death). Death certificates, which must be filed no later than
10 days after the date of the death, see TEX. HEALTH& SAFETYCODE ANN. 8 193.003(a) (Vernon
2001), sometimes show the cause of death stated in the provisional autopsy report. Peck Brief, supra
note 5, at 3. If the final autopsy report shows a different cause of death, the death certificate may
be amended. See TEX. HEALTH & SAFETYCODE ANN. 8 191.028 (Vernon 2001). Thus, the term
“provisional autopsy report” is used in the practice of postmortem exams to describe the early
findings before the complete findings are available.

        Rule 12 of the Texas Rules of Judicial Administration provides for public access to records
maintained by a court in its regular course ofbusiness that do not pertain to its adjudicative function.
The Honorable Edwin E. Powell, Jr. - Page 4          (JC-0422)




See TEX. R. JUD.ADMIN. 12.2(d), reprinted in TEX.GOV’T CODEANN., tit. 2, subtit. F app. (Vernon
Supp. 2001). However, this rule does not apply to records to which access is controlled by a statute
or provision of law. See id. 12.3(a)(4). This is the case with autopsy records held by the justice
court. Thus, we need not determine whether a preliminary autopsy report is a record maintained by
the justice court “in its regular course of business . . . not pertaining to its adjudicative function.”
See id. 12.2(d).

          Section 27.004 of the Government Code provides that each justice of the peace shall “safely
keep all dockets, books, and papers transmitted to the justice by the justice’s predecessors in office,
and all papers filed in a case in justice court, subject to the inspection of any interested party at
reasonable times.” TEX. GOV’T CODE ANN. 0 27.004(a) (Vernon 1988). This provision has been
construed to allow members of the public to inspect autopsy reports maintained by the justice of the
peace. See Tex. Att’y Gen. ORD-25 (1974) (construing prior codification of section 27.004 of
Government Code); see also Tex. Att’y Gen. ORD-52 1(1989) at 3 (meaning of “interested person”
in statute on access to public record). Section 27.004 of the Government Code provides no basis for
distinguishing between a provisional and a final autopsy report or for withholding a provisional
autopsy report. Both reports are records maintained by the justice of the peace subject to public
inspection pursuant to section 27.004 of the Government Code. Accordingly, the justice of the peace
must make the provisional autopsy report available for inspection.
The Honorable   Edwin E. Powell, Jr. - Page 5        (JC-0422)




                                         SUMMARY

                         Although the Public Information Act, Texas Government
                Code chapter 552, does not apply to records of the judiciary, such
                records may be available to the public under other laws.               A
                “provisional autopsy report” prepared in connection with an inquest
                by a justice of the peace is not available under the Public Information
                Act, but members of the public may inspect it pursuant to section
                27.004 of the Government Code.

                                                Ve    trul   your



                                             4kkT
                                                JOkN     COR-NYN
                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
