                             ATTORNEY GENERAL OF TEXAS
                                         GREG       ABBOTT




                                          December 28,2005



The Honorable David K. Walker                        Opinion No. GA-03 89
Montgomery County Attorney
207 West Phillips                                    Re: Whether section 693.002 of the Health and
Conroe, Texas 77301                                   Safety Code requires a justice of the peace to
                                                      allow an organ procurement      organization to
                                                     remove organs of a deceased person before the
                                                     justice of the peace has determined whether an
                                                      autopsy should be performed   (RQ-0365GA)


Dear Mr. Walker:

         Section 693.002 of the Health and Safety Code addresses justices of the peace and other
officials’ authority over organ and tissue removal from a decedent who died under circumstances
requiring an inquest. See TEX.HEALTH& SAFETY CODE ANN. 9 693.002 (Vernon Supp. 2005). You
ask several questions relating to whether section 693.002 requires a justice of the peace to allow an
organ procurement organization to remove organs of a deceased person before the justice of the
peace has determined whether an autopsy should be performed.’

I.      Backmound

        Your questions assert that there may be a conflict between section 693.002 of the Health and
Safety Code and provisions in chapter 49 of the Code of Criminal Procedure regarding inquests and
autopsies and that if there is a conflict the latter must prevail. See Request Letter, supra note 1, at
6. Under chapter 49, the term “inquest” means “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.” TEX. CODE CRIM. PROC. ANN. art.
49.01(2) (Vernon Supp. 2005). An “autopsy” is “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).




          ‘See Letter from Honorable David K. Walker, County Attorney, Montgomery County, to Honorable Greg
Abbott, Attorney General of Texas (July 1, 2005) (on file with Opinion Committee,         also nvaiZable at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable David IS. Walker - Page 2                          (GA-0389)




          Subchapter A of chapter 49 of the Code of Criminal Procedure, which governs a death
 occurring in a county that does not have a medical examiner’s office or that is not part of a medical
 examiner’s district, see id. art. 49.02, applies in your county, see Request Letter, supra note 1, at 1.
 Subchapter A requires a justice of the peace to perform an inquest when a person dies in the county
 under the circumstances listed in article 49.04. See TEX. CODECRIM.PROC.ANN. art.49.04 (Vernon
 Supp. 2005). A physician who has possession of the body of a person whose death requires an
 inquest “shall immediately notify the justice of the peace who serves the precinct in which the body
 . . . was found.” Id. art. 49.07(a); see also id. art. 49.04(b)-(c). If that justice of the peace is not
 available, the physician must notify the nearest available justice of the peace in the county or, if no
justice of the peace is available, the county judge. See id. art. 49.07(c)(1)-(2).         It is a class C
misdemeanor to intentionally or knowingly fail to give notice. See id. art. 49.07(d).

         A justice of the peace “shall conduct an inquest immediately or as soon as practicable after
the justice receives notification of the death.” Id. art. 49.05(a). Article 49.10 addresses a justice of
the peace’s authority and duties with respect to autopsies and does not require a justice of the peace
to order an autopsy in every case in which an inquest is required.            Section 49.10(a) generally
provides that “[a]t his discretion, a justice of the peace may obtain the opinion of a county health
officer or a physician concerning the necessity of obtaining an autopsy in order to determine or
confirm the nature and cause of a death.” Id. art. 49.1 O(a).2 Section 49.10(c) provides that “for each
body that is the subject of an inquest by a justice of the peace, the justice, in the justice’s discretion,
shall” either “direct a physician to perform an autopsy” or “certify that no autopsy is necessary.” Id.
art. 49.1 O(C).~ Article 49.10(e) requires a justice of the peace to order an autopsy in certain
circumstances:

                        (e) A justice of the peace shall order an autopsy performed on
                  a body if:

                            (1) the justice determines that an autopsy is necessary to
                  determine or confirm the nature and cause of death;

                            (2) the deceased was a child younger than six years of age
                  and the death is determined under Section 264.5 14, Family Code, to
                  be unexpected or the result of abuse or neglect; or




            ‘See also TEX. CODE GRIM. PROC. ANN. art. 49.10(b) (Vernon Supp. 2005) (“The commissioners court of the
county shall pay a reasonable fee for a consultation obtained by a justice of the peace under Subsection (a) of this
article.“).

          3See also id. art. 49.1 O(d) (“A justice of the peace may not order a person to perform an autopsy on the body
of a deceased person whose death was caused by Asiatic cholera, bubonic plague, typhus fever, or smallpox. A justice
of the peace may not order a person to perform an autopsy on the body of a deceased person whose death was caused
by a communicable disease during a public health disaster.“).
The Honorable David K. Walker - Page 3                              (GA-0389)




                                (3) directed to do so by the district attorney, criminal
                   district attorney, or, if there is no district or criminal district attorney,
                   the county attorney.

Id. art. 49.10(e).4 In addition, “[i]f a justice of the peace determinesthat a complete autopsy is
unnecessary to confirm or determine the cause of death, the justice may order a physician to take or
remove from a body” samples to determine the nature and cause of death. Id. art. 49.1 O(i).

        Section 693.002 of the Health and Safety Code governs removal of organs and tissue from
a decedent who died in circumstances requiring an inquest. See TEX.HEALTH& SAFETYCODEANN.
9 693.002 (Vernon Supp. 2005). Section 693.002(a) generally provides that

                   [o]n a request from a qualified organ procurement organization, as
                   defined in Section 692.002, the medical examiner, justice of the
                   peace, county judge, or physician designated by the justice of the
                   peace or county judge may permit the removal of organs from a
                   decedent who died under circumstances requiring an inquest by the
                   medical examiner, justice of the peace, or county judge if consent is
                   obtained pursuant to Section 693.003.

Id. 0 693.002(a)( 1). Section 693.002(a)( 1) refers to “a qualified organ procurement   organization”
as defined by section 692.002 of the Health and Safety Code, which is a provision of the Texas
Anatomical Gift Act, Health and Safety Code chapter 692,5 and section 693.002 uses that term
throughout section 693.002(a).      See id. 4 693.002(a).    We use the term “organ procurement
organization” or “organization.”     Section 693.002(a)(2)-(6) provides procedures for the timely
removal of organs that also take into consideration any need for an autopsy. See id. 3 693.002(a)(2)-
(6).6 Section 693.002(b)-(c) addresses tissue removal and is not relevant to most of your questions,
which generally pertain to organ as opposed to tissue removal. See Request Letter, supra note 1, at
6; TEX. HEALTH& SAFETYCODE ANN. 0 693.002(b)-(c) (Vernon Supp. 2005).

        You ask us to address circumstances involving an organ donor who died under circumstances
that require a justice of the peace to conduct an inquest under article 49.04. See Request Letter,
supra note 1, at 6; see also TEX. CODE CRIM. PROC.ANN. art. 49.04 (Vernon Supp. 2005). You ask


         4See also id. art. 49. IO(f) (“A justice of the peace shall request a physician to perform the autopsy.“).

           ‘See TEX. HEALTH& SAFETYCODEANN. 8 692.002(9) (Vernon 2003) (“‘Qualified organ or tissue procurement
organization’ means an organization that procures and distributes organs or tissues for transplantation, research, or other
medical purposes and that: (A) is affiliated with a university or hospital or registered to operate as a nonprofit
organization in this state for the primary purpose of organ or tissue procurement; and (B) if the organization is an organ
procurement organization, is certified to act as an organ procurement organization by the appropriate federal agency.“).

           %ection 693.002(a)(7) provides that at the request of the medical examiner, the justice of the peace, county
judge, or designated physician, “the health care professional removing organs from a decedent who died under
 circumstances requiring an inquest shall file” with the requesting official “a report detailing the condition of the organs
removed and their relationship, if any, to the cause of death.” Id. 3 693.002(a)(7) (Vernon Supp. 2005).
The Honorable David K. Walker - Page 4                             (GA-0389)




us to assume that before the justice of the peace determined whether an autopsy was necessary, an
organ procurement organization sought to remove the organs of the deceased with the family’s
consent. See Request Letter, supra note 1, at 6; see also TEX. HEALTH & SAFETY CODE ANN. $0
693.003-.004 (Vernon 2003) (governing consent for organ and tissue removal). The justice of the
peace refused to allow the organization to remove the organs until the justice of the peace made a
decision “regarding the potential loss of evidence”; further, the justice ofthe peace “refused to attend
organ removal surgery because a decision regarding loss of evidence had not been made at the time
the surgery was scheduled to occur.” Request Letter , supra note 1, at 6.7

         You ask the following questions:

                    1. Does the Health and Safety Code require the justice of the peace
                   to allow an organ procurement organization to procure the organs of
                   the deceased before the need for an autopsy has been determined?

                   2. Can the procurement of the organs occur before the justice of the
                   peace has determined whether procurement of the organs will
                   interfere with the course of the investigation?

                   3. Can the organ procurement organization require the justice of the
                   peace to make a decision regarding the removal of the organs at a
                   time and place determined by the organization or is this a function of
                   the justice court and subject to the court’s schedule and/or rules?

                   4. Does Section 693.002(a)(6) allow payment by the organization of
                   costs incurred that are necessary to aid and assist the justice of the
                   peace in making a determination that the organs or tissue will or will
                   not interfere with the course of an investigation?

                   5. Can the justice of the peace deny the removal of the organs or
                   tissue upon the request of the district attorney?

Request Letter, supra note 1, at 6.




          ‘In a supplemental letter, you state that a particular organ procurement organization sought a court order to
require a justice of the peace to comply with section 693.002 of the Health and Safety Code. See Letter from Honorable
David K. Walker, County Attorney, Montgomery County, to Honorable Greg Abbott, Attorney General of Texas (Aug.
2, 2005) (on file with Opinion Committee).       It is the policy of this office to refrain from issuing an attorney general
opinion on a question we know is the subject of pending litigation. See Tex. Att’y Gen. Op. Nos. MW-205 (1980) at
 1, V-29 1 (1947) at 5-6; Tex. Att’y. Gen. LA- 142 (1977) at 1. However, we understand that the matter to which you refer
is no longer pending. See Brief from Rusty Hardin, Rusty Hardin & Assoc., to Honorable Greg Abbott, Attorney General
of Texas, at 2-3 (Sept. 9,2005) (on file with Opinion Committee). We answer your questions in general terms and not
with respect to any particular situation.
The Honorable David K. Walker - Page 5                         (GA-0389)




II.    Analysis

       A.       Health and Safety Code Section 693.002(a) and the Code of Criminal Procedure

                 Your primary questions relate to the timing of a procedure to remove organs from a
decedent and the justice of the peace’s determination regarding whether an autopsy is necessary and
whether organ removal would interfere with the investigation.        See id. Before answering your
specific questions, we examine the general scheme established by section 693.002(a) of the Health and
Safety Code’ and its relationship to subchapter A of chapter 49 of the Code of Criminal Procedure.




       ‘Section 693.002(a) provides in pertinent part:

                       (a)(l) On a request from a qualified organ procurement organization, as
                defmed in Section 692.002, the medical examiner, justice of the peace, county
               judge, or physician designated by the justice of the peace or county judge may
               permit the removal of organs from a decedent who died under circumstances
               requiring an inquest by the medical examiner, justice of the peace, or county judge
                if consent is obtained pursuant to Section 693.003.

                       (2) If no autopsy is required, the organs to be transplanted shall be released
                in a timely manner to the qualified organ procurement organization, as defmed in
                Section 692.002, for removal and transplantation.

                      (3) If an autopsy is required and the medical examiner, justice of the peace,
                county judge, or designated physician determines that the removal ofthe organs will
                not interfere with the subsequent course of an investigation or autopsy, the organs
                shall be released in a timely manner for removal and transplantation.   The autopsy
                will be performed in a timely manner following the removal of the organs.

                      (4) If the medical examiner is considering withholding one or more organs
               of a potential donor for any reason, the medical examiner shall be present during the
               removal of the organs. In such case, the medical examiner may request a biopsy of
               those organs or deny removal of the anatomical gift. If the medical examiner denies
               removal of the anatomical gift, the medical examiner shall explain in writing the
               reasons for the denial. The medical examiner shall provide the explanation to:

                          (A)   the qualified organ procurement   organization;   and

                          (B)   any person listed in Section 693.004 who consented to the removal.

                     (5) If the autopsy is not being performed by a medical examiner and one or
               more organs may be withheld, the justice of the peace, county judge, or designated
               physician shall be present during the removal of the organs and may request the
               biopsy or deny removal of the anatomical gift. If removal of the anatomical gift is
               denied, the justice of the peace, county judge, or physician shall provide the written
               explanation required by Subdivisions (4)(A) and (B).

                                                                                                        (continued...)
The Honorable David K. Walker - Page 6                           (GA-0389)




         Section 693.002(a) of the Health and Safety Code specifically addresses organ removal by
an organ procurement organization when an inquest is required. See TEX. HEALTH& SAFETYCODE
ANN. 5 693.002(a) (Vernon Supp. 2005). In construing section 693.002(a), we must give effect to
the legislature’s intent. See TEX. GOV’T CODEANN. $0 3 11.02 1, .023 (Vernon 2005); Albertson ‘,s,
Inc. v. Sinclair, 984 S.W.2d 958,960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d
436, 438 (Tex. 1997). To do so, we must construe it according to its plain language. See In re
Canales, 52 S.W.3d 698,702 (Tex. 2001); RepublicBankDallas, N.A. v. Interkal, Inc., 691 S.W.2d
605, 607-08 (Tex. 1985). We must also construe its provisions in context, considering the statute
as a whole. See TEX. GOV’T CODE ANN. 6 3 11 .O11(a) (Vernon 2005) (words and phrases to be read
in context); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (“[W]e must always
consider the statute as a whole rather than its isolated provisions. We should not give one provision
a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to
such a construction standing alone.“).

         As a threshold matter, we note that section 693.002(a) applies to medical examiners and
justices of the peace, and also to county judges and designated physicians. See TEX. HEALTH &
 SAFETY CODE ANN. 0 693.002(a) (Vernon Supp. 2005). This is because, under the Code of Criminal
Procedure, in a county without a medical examiner an inquest must be conducted by a justice of the
peace or, if a justice of the peace is not available, the county judge. See TEX. CODE Cm. PROC.
ANN. arts. 49.02,49.07(b)-(c)(l)-(2)    (V emon Supp. 2005). A justice of the peace or county judge
may consult with a physician about whether an autopsy is necessary and must designate a physician
to perform an autopsy. See id. arts. 49,07(c)(2), 49.10(a), (c)(l), (f). Given that you ask about
inquests conducted by justices of the peace, we address section 693.002(a) primarily with respect
to duties of a justice of the peace. See Request Letter, supra note 1, at 6.

        Section 693.002(a) does not contain any provision stating that the procedure to remove
organs may not take place until the justice of the peace has determined whether an autopsy is
necessary. See TEX. HEALTH & SAFETY CODE ANN. 0 693.002(a) (Vernon Supp. 2005). Rather,
section 693.002(a)( 1) establishes that, if the family consents, a justice of the peace or other official
may permit removal of organs from a person who died under circumstances requiring an inquest.



        ‘(-continued)
                         (6) If, in performing the duties required by this subsection, the medical
                  examiner or, in those cases in which an autopsy is not performed by a medical
                  examiner, the justice of the peace, county judge, or designated physician is required
                  to be present at the hospital to examine the decedent prior to removal of the organs
                  or during the procedure to remove the organs, the qualified organ procurement
                  organization shall on request reimburse the county or the entity designated by the
                  county for the actual costs incurred in performing such duties, not to exceed $1,000.
                  Such reimbursements shall be deposited in the general fund of the county. The
                  payment shall be applied to the additional costs incurred by the office of the
                  medical examiner, justice of the peace, or county judge in performing such duties,
                  including the cost of providing coverage beyond regular business hours. The
                  payment shall be used to facilitate the timely procurement of organs in a manner
                  consistent with the preservation of the organs for the purposes of transplantation.

TEX. HEALTH& SAFETYCODE ANN.§ 693,002(a)(1)-(6)           (Vernon Supp. 2005).
The Honorable David K. Walker - Page 7                  (GA-0389)




See id 6 693.002(a)(l).      Although section 693.002(a)(l) states that a justice of the peace “may”
permit organ removal, see id. ; see also TEX. GOV’T CODE ANN. 5 3 11 .016( 1) (“‘May’ creates
discretionary authority or grants permission or a power.“), it is clear from section 693.002(a)(2)-(5)
that a justice of the peace does not have unfettered discretion over this matter, see TEX. GOV’T CODE
ANN. 0 3 11 .O16 (Vernon 2005) (“The following constructions apply unless the context in which the
word or phrase appears necessarily requires a different construction or unless a different construction
is expressly provided by statute[.]“). Section 693.002(a)(2) through (5) addresses the timing of the
release of organs vis a vis an autopsy. See TEX. HEALTH& SAFETYCODE ANN. 3 693.002(a)(2)-(5)
(Vernon Supp. 2005). These subsequent provisions do not permit a justice of the peace to delay an
organ removal procedure and in some circumstances will require a justice of the peace to attend an
organ removal procedure to determine whether to deny removal.

         Specifically, section 693.002(a)(2) addresses situations in which no autopsy is required: “If
no autopsy is required, the organs to be transplanted shall be released in a timely manner to the
qualified organ procurement organization . . . for removal and transplantation.” Id 9 693.002(a)(2).
Because article 49.10(e)(l) requires a justice of the peace to order an autopsy if the justice of the
peace determines that an autopsy is necessary “to determine or confirm the nature and cause of
death,” TEX. CODE GRIM. PROC.ANN. art. 49.1 O(e)( 1) (Vernon Supp. 2005), section 693.002(a)(2)
applies when a justice of the peace has determined that an autopsy is not necessary.

         Section 693.002(a)(3) addresses situations in which an autopsy is required but in which the
justice of the peace or other official has determined that removal of the organs will not interfere with
the investigation or autopsy:

                        If an autopsy is required and the medical examiner, justice of
                the peace, county judge, or designated physician determines that the
                removal of the organs will not interfere with the subsequent course
                of an investigation or autopsy, the organs shall be released in a timely
                manner for removal and transplantation.

TEX. HEALTH & SAFETY CODE ANN. $693.002(a)(3)             (Vernon Supp. 2005) (emphasis added).

         Section 693.002(a)(4)-(5) addresses situations in which an autopsy is required but in which
the relevant official has not yet determined whether removal of the organs will interfere with the
investigation or autopsy. Section 693.002(a)(4) addresses the duties of a medical examiner in these
circumstances:

                    (4) If the medical examiner is considering withholding one or
                more organs of a potential donor for any reason, the medical
                examiner shall be present during the removal of the organs. In such
                case, the medical examiner may request a biopsy of those organs or
                deny removal of the anatomical gift. If the medical examiner denies
                removal of the anatomical gift, the medical examiner shall explain in
The Honorable David K. Walker - Page 8                             (GA-0389)




                   writing the reasons for the denial.              The medical        examiner       shall
                   provide the explanation to:

                              (A) the qualified organ procurement             organization;     and

                           (B) any person listed in Section 693.004 who consented to
                   the removal.

Id. 5 693,002(a)(4) (emphasis added). Section 693.002(a)(5) addresses the duties of a justice of the
peace, county judge, or designated physician:

                         (5) If the autopsy is not being performed by a medical
                   examiner and one or more organs may be withheld, the justice of the
                   peace, county judge, or designated physician shall be present during
                   the removal of the organs and may request the biopsy or deny
                   removal of the anatomical gift. If removal of the anatomical gift is
                   denied, the justice of the peace, county judge, or physician shall
                   provide the written explanation required by Subdivisions (4)(A) and
                   (W

Id. 5 693.002(a)(5).

          Given your questions, we focus on section 693.002(a)(5) as it applies to an inquest conducted
by a justice of the peace. Because section 693.002(a)(2)-(3) addresses removal of organs after a
justice of the peace has determined that an autopsy is not necessary or that removal of organs will
not interfere with the investigation or autopsy, it is evident from the statutory context that section
 693.002(a)(5) applies to a justice of the peace who has not yet made those determinations.
 Significantly, section 693.002(a)(5)‘s plain language requires a justice of the peace who has not yet
 made those determinations to attend a procedure to remove organs. See id. 0 693.002(a)(5) (“the
justice of the peace, county judge, or designated physician shall bepresent during the removal of the
 organs “) (emphasis added); see also TEX. GOV’T CODE ANN. 6 3 11 .O16(2) (Vernon 2005) (“‘Shall’
 imposes a duty.“).9 However, during the procedure, the justice of the peace is authorized to deny
 organ removal. See TEX. HEALTH & SAFETY CODE ANN. 5 693.002(a)(5) (Vernon Supp. 2005) (the



         91n your brief, you state that

                   [t]he clear language of Section 693.002(a)( 1) . . . says that the justice of the peace
                   “may permit the removal o[fj organs from a decedent” if the circumstances
                   described in subsections (a)(2)-(5) exist. If the justice of the peace has not yet
                   determined if an autopsy is necessary or that destruction of evidence may occur,
                   these subsections are not applicable.

Request Letter, supra note 1, at 7. However, the general authority that section 693.002(a)( 1) grants a justice ofthe peace
to permit organ removal in cases where an inquest is required does not mitigate the mandatory duty under section
693.002(a)(5) of a justice of the peace who has not yet permitted organ removal to attend the organ removal procedure.
See TEX. HEALTH & SAFETY CODE ANN. 5 693.002(a)(l), (5) (Vernon Supp. 2005).
The Honorable David K. Walker - Page 9                           (GA-0389)




justice of the peace “may. . . deny removal of the anatomical gift”) (emphasis added); see also TEX.
 GOV’T CODE ANN. $ 311.016(l) (V ernon 2005) (providing that generally “‘[mlay’ creates
discretionary authority or grants permission or a power”).

         You suggest that to the extent section 693.002(a)(5) of the Health and Safety Code and Code
of Criminal Procedure provisions regarding autopsies conflict, the latter must prevail. See Request
Letter, supra note 1, at 7-8. But subchapter A of chapter 49 of the Code of Criminal Procedure,
which governs a justice of the peace’s duties with respect to inquests and autopsies, does not
specifically address autopsies and organ removal by an organ procurement organization. See TEX.
CODE CRIM. PROC. ANN. arts. 49.01-.24 (Vernon Supp. 2005).              You have not identified any
particular Code of Criminal Procedure provision that conflicts with section 693.002(a)(5) nor have
we located any.

          Moreover, the two statutory schemes work in harmony. For example, article 49.10 requires
a justice of the peace to order an autopsy in certain circumstances, including when the justice
determines that an autopsy is necessary to determine or confirm the nature and cause of death. See
id. art. 49.10(e)(l).   It does not require a complete examination of the body in every autopsy,
however. A justice of the peace who “determines that a complete autopsy is unnecessary to confirm
or determine the cause of death” may order a physician to take samples of body fluids, tissues, or
organs. Id. art. 49.1 O(i). Thus subchapter A, which defines the term “autopsy” broadly,” does not
mandate that an autopsy always include an examination of organs. Section 693.002(a)(5) of the
Health and Safety Code is consistent with these duties and powers: If the justice of the peace has
not yet determined whether an autopsy is necessary or whether removal of the organs will interfere
with the investigation or autopsy before a scheduled organ removal procedure, the statute requires
the justice of the peace (or designated physician) to attend the organ removal procedure but permits
the justice of the peace (or designated physician) to obtain organ biopsies during the procedure or
to deny organ removal altogether.” Section 693.002(a)(5) does not impede a justice of the peace’s
authority to order an autopsy.

         With respect to scheduling the time for organ removal procedures, you specifically assert that
a justice of the peace’s decision about whether an autopsy is necessary is governed by the Code of
Criminal Procedure and that under the Code of Criminal Procedure a justice of the peace is not
required to make this decision “in any manner or at any particular time.” Request Letter, supra note
1, at 7. As a result, an organ procurement organization “cannot dictate or require a justice of the
peace to act at a time and place determined by the organization.” Id. However, subchapter A of


           “See TEX. CODE GRIM. PROC. ANN. art. 49.01( 1) (Vernon Supp. 2005) (“Autopsy” means “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.“).

            “You cite section 692.0 15 of the Health and Safety Code for the proposition that section 693.002 must yield
to conflicting Code of Criminal Procedure provisions. See TEX. HEALTH& SAFETYCODE ANN. 5 692.0 15(a) (Vernon
2003) (“This chapter is subject to the laws of this state prescribing the powers and duties relating to autopsies.“)
(emphasis added). By its plain terms, however, section 692.015 establishes a rule of construction only for Health and
Safety Code chapter 692, the Texas Anatomical Gift Act. See id.
The Honorable David K. Walker - Page 10                             (GA-0389)




chapter 49 of the Code of Criminal Procedure does not address when organs may be removed by an
organ procurement organization. See TEX. CODE GRIM. PROC. ANN. arts. 49.01-.24 (Vernon Supp.
2005). Section 693.002(a) of the Health and Safety Code governs this issue and it is clearly intended
to facilitate timely organ removal for transplantation. See TEX. HEALTH& SAFETY CODE ANN. 5
693.002(a)(2) (Vernon Supp. 2005) (“the organs to be transplanted shall be released in a timely
manner”), (3) (“the organs shall be released in a timely manner for removal and transplantation”).
It is plain from section 693.002(a) as a whole that the legislature intended to require justices of the
peace and other officials to perform their duties relating to autopsies according to a timetable that
permits donated organs to be transplanted. See id.; see also id. 3 693.002(a)(6) (providing that a
payment by an organ procurement organization for an official’s costs “shall be used to facilitate the
timely procurement of organs in a manner consistent with the preservation of the organs for the
purposes of transplantation”).‘2

         B.        Specific Questions

                 Your first question is whether the Health and Safety Code requires a justice of the
peace “to allow an organ procurement organization to procure the organs of the deceased before the
need for an autopsy has been determined.” Request Letter, supra note 1, at 6. Your second question
 is very similar: “Can the procurement of the organs occur before the justice of the peace has
determined whether procurement of the organs will interfere with the course of the investigation?”
Id. Section 693.002(a) does not require a justice of the peace to permit an organ procurement
 organization to remove organs before the justice of the peace has determined whether an autopsy is
necessary or whether organ procurement will interfere with the course of the investigation.
However, section 693.002(a)(5) requires a justice of the peace who has not yet determined whether
 an autopsy is necessary or whether organ removal will interfere with the investigation or the autopsy
to attend the procedure to remove organs or to send a designated physician. At the procedure, the
justice of the peace or designated physician may deny organ removal. See TEX. HEALTH& SAFETY
CODE ANN. 5 693.002(a)(5) (Vernon Supp. 2005).

        Your third question is whether an organ procurement organization may require a justice of
the peace “to make a decision regarding the removal of the organs at a time and place determined
by the organization or is this a function of the justice court and subject to the court’s schedule and/or
rules.” Request Letter, supra note 1, at 6. Section 693.002(a)(5) by its express terms requires a
justice of the peace or designated physician to attend the organ removal procedure and permits a
justice of the peace or designated physician who does so to deny organ removal. See TEX. HEALTH
& SAFETYCODE ANN. 3 693.002(a)(5) (Vernon Supp. 2005). Section 693.002(a) does not give a


           “This purpose is also clear from the legislative history. The legislature amended Health and Safety Code
section 693.002 in 1995 to authorize medical examiners to permit organ removal and to require them to attend organ
removal procedures, establishing a legislative framework governing organ removal vis ?Ivis medical examiner inquests
and autopsies. See Act ofMay 24, 1995,74th Leg., R.S., ch. 523, 0 1, 1995 Tex. Gen. Laws 3279. The 1995 legislative
history indicates that the purpose of the bill was to “facilitate the timely removal and transplantation of organs and tissue
from decedents.” HOUSERESEARCHORG., BILL ANALYSIS, Tex. S.B. 35 1,74th Leg., R.S. (1995); see also TEX. GOV’T
CODE ANN. $3 11.023(l) (Vernon 2005) (in construing a statute a court may consider the object to be attained). The
legislature amended the statute to apply to justices of the peace in 2003. See Act of May 28,2003,7Sth         Leg., R.S., ch.
1220, $ 1,2003 Tex. Gen. Laws 3464.
The Honorable David K. Walker - Page 11                         (GA-0389)




justice of the peace any authority over the procedure’s timing or authorize a justice of the peace to
deny organ removal under any other circumstances.       See id 5 693.002(a). Thus, by requiring a
justice of the peace or designated physician to attend an organ removal procedure, section
693.002(a)(5) in effect authorizes an organ procurement organization that schedules a procedure to
require a justice of the peace who has not yet made the decision regarding organ removal to do so
at a time and place determined by the organization.

        Your fourth question is whether section 693,002(a)(6) allows “payment by the organization
of costs incurred that are necessary to aid and assist the justice of the peace in making a
determination that the organs or tissue will or will not interfere with the course of an investigation.”
Request Letter, supra note 1, at 6.

        Section 693.002(a)(6) provides that

                  [i]f, in performing the duties required by this subsection, . . . the
                 justice of the peace, county judge, or designated physician is required
                 to bepresent at the hospital to examine the decedent prior to removal
                 of the organs or during the procedure to remove the organs, the
                 qualified organ procurement organization shall on request reimburse
                 the county or the entity designated by the county for the actual costs
                 incurred in performing such duties, not to exceed $1,000.

TEX. HEALTH      & SAFETY         ANN. 0 693.002(a)(5) (V ernon Supp. 2005) (emphasis added).
                                   CODE
Determining whether organ removal will interfere with the course of an investigation is a duty
required by section 693.002(a). See id. 0 693.002(a)(3)-(5). If in order to perform that duty a justice
of the peace or designated physician is required to be present at the hospital to examine the body
either before or during the organ removal procedure, section 693.002(a)(6) provides for the organ
procurement organization to reimburse the county for actual costs, not to exceed $1000. See id. 8
693.002(a)(6).

        Your fourth question asks about costs associated with the removal of tissue as well as organs.
See Request Letter, supra note 1, at 6. Section 693.002(a)(6) addresses costs only for duties required
by section 693.002(a), which pertains to organ removal. Section 693.002(b)-(c) governs tissue
removal. l3 By its plain terms, section 693.002(a)(6) does not provide for costs to be paid by a tissue


        13Section 693.002(b)-(c)    provides as follows:

                       (b) On a request from a qualified tissue procurement organization, as defined
                 in Section 692.002, the medical examiner may permit the removal oftissue believed
                 to be clinically usable for transplants or other therapy or treatment from a decedent
                 who died under circumstances requiring an inquest if consent is obtained pursuant
                 to Section 693.003 or, if consent is not required by that section, no objection by a
                 person listed in Section 693.004 is known by the medical examiner. If the medical
                 examiner denies removal ofthe tissue, the medical examiner shall explain in writing
                 the reasons for the denial. The medical examiner shall provide the explanation to:

                                                                                                         (continued...)
The Honorable David K. Walker - Page 12                         (GA-0389)




procurement   organization for duties required by section 693.002(c). See TEX. HEALTH & SAFETY
CODE ANN. 0 693.002(a)(6) (V et-non Supp. 2005) (“[IIf, in performing the duties required by this
subsection, . . . the justice of the peace . . . is required to be present at the hospital to examine the
decedent prior to removal of the organs or during the procedure to remove the organs, the qualified
organ procurement organization shall on request reimburse the county . . . .“) (emphasis added).

         Finally, you ask whether a “justice of the peace [may] deny the removal of the organs or
tissue upon the request of the district attorney.” Request Letter, supra note 1, at 6. Article
49.1 O(e)(3) of the Code of Criminal Procedure provides that “[a] justice of the peace shall order an
autopsy . . . if directed to do so by the district attorney.” TEX. CODE CFUM. PROC. ANN. art.
49.10(e)(3) (Vernon Supp. 2005). However, neither article 49.10(e)(3) nor section 693.002 of the
Health and Safety Code gives a district attorney authority over the removal of organs or tissue.
Rather, section 693.002(a) gives the authority to release or withhold organs to the justice of the
peace. Specifically, section 693.002(a)(3) expressly requires the release of organs if the “justice of
the peace . . . determines that the release of organs will not interfere with the subsequent course of
an investigation or autopsy.” TEX. HEALTH& SAFETYCODEANN. 0 693.002(a)(3) (Vernon Supp.
2005). In that case, the autopsy will be performed after organ removal.                See id. Section
693.002(a)(5) 1  a so vests discretion in the justice of the peace over whether organs may be removed.
See id. $ 693.002(a)(5) (“the justice of the peace . . . shall be present during the removal of the
organs and may request the biopsy or deny removal of the anatomical gift”) (emphasis added); see
also TEX. GOV’T CODE ANN. 0 3 11.016(l) (Vernon 2005) (“‘May’ creates discretionary authority
or grants permission or a power.“). Similarly, section 693.002(c) vests a justice of the peace with
the discretion to permit or deny the removal of tissue. See TEX. HEALTH& SAFETY CODE ANN. $
693.002(c) (V emon Supp. 2005).

         Thus, in answer to your question, even if a district attorney has directed the justice of the
peace to order an autopsy under article 49.1 O(e)(3), section 693.002 authorizes a justice of the peace
to make an independent determination regarding whether organs or tissue may be removed. A
district attorney may not require a justice of the peace to deny organ or tissue removal.




                         (1) the qualified tissue procurement   organization;   and

                         (2) the person listed in Section 693.004 who consented       to the removal.

                      (c) If the autopsy is not being performed by a medical examiner, the justice
               of the peace, county judge, or designated physician may permit the removal of
               tissue in the same manner as a medical examiner under Subsection (b). If removal
               of the anatomical gift is denied, the justice of the peace, county judge, or physician
               shall provide the written explanation required by Subsections (b)( 1) and (2).

TEX. HEALTH& SAFETYCODE ANN. 9 693.002(b)-(c)        (Vernon Supp. 2005).
The Honorable David K. Walker - Page 13                (GA-0389)




                                        SUMMARY

                        In a case in which a decedent has died under circumstances
               requiring an inquest and the family consents to organ removal, section
               693,002(a)(5) of the Health and Safety Code requires a justice of the
               peace who has not yet determined whether an autopsy is necessary or
               whether organ removal will interfere with the investigation or the
               autopsy to attend the procedure to remove organs or to send a
               designated physician. During the procedure the justice of the peace
               or designated       physician  may deny organ removal.              By
               requiring a justice of the peace or designated physician to attend an
               organ removal procedure, section 693.002(a)(5) in effect authorizes
               an organ procurement organization that schedules a procedure to
               require a justice of the peace who has not yet made the decision
               regarding organ removal to do so at a time and place determined by
               the organization.

                        If a justice of the peace or designated physician is required to
               be present at the hospital to examine the body either before or during
               the organ removal procedure in order to perform a duty relating
               to organ removal under section 693.002(a), section 693.002(a)(6)
               provides for the organ procurement organization to reimburse the
               county for actual costs, not to exceed $1000. Section 693.002(a)(6)
               does not provide for costs to be paid by a tissue procurement
               organization for duties required by section 693.002(c), which relates
               to tissue removal.

                       Section 693.002 authorizes a justice of the peace to make an
               independent determination regarding whether organs or tissue may be
               removed. A district attorney may not require a justice of the peace to
               deny organ or tissue removal.




BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
