                 September 16, 1966

Honorable Henry Wade     Opinion NO. c-762
District Attorney
Dallas County Government Re: Interpretation of
   Center                     Article 49.05, Code
Dallas, Texas                 of Criminal Procedure
Dear Mr. Wade:
        Your recent letter requests an opinion of
this office, wherein you ask the following questions:
        "1. What is the interpretation of the
            word 'absencet as such word is con-
            tained in the phrase 'and in the ab-
            sence of any of the foregoing' which
            phrase is found in the second ara-
            graph of Section 1 of Article E9.05,
            Code of Criminal Procedure? As an
            example, situations arise where the
            father is presently In Viet Ram and
            we have been submitted the question
            of whether he is considered to be ab-
            sent under this statute.
        "2.   That last sentence of Section 1 of
              Article 49.05, Code of Criminal Pro-
              cedure, states 'If two or more of the
              above-named persons ass~umec~~%+.o.rQ
                                                  nS,
               the body, consent of one of them shall
              be deemed sufficient.' In regard to
              this sentence, we submit the follow-
              ing two questions concerning its inter-
              pretation.

              a)   Does this sentence refer to the
                   entire list of individuals enu-
                   merated In the first sentence of
                   the second aragraph of Sectlon 1
                   of ArtZcle E9.05, Code of Crlmi-
                   nal Procedure?
              b)   Under this provision, if two per-
                   sons (i.e., two uncles) of the
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Honorable Henry Wade, page 2 (c-762   )


                 deceased assume custody of the
                 body while the father is avail-
                 able for consent to an autopsy,
                 must the father still be the
                 one to consent or is consent of
                 one of the uncles deemed suffi-
                 cient?"
        Article 49.05, Section 1, Vernon's Code of Crim-
inal Procedure, provides as follows:
           "Consent for a licensed physician to
        conduct an autopsy of the body of a de-
        ceased person shall be deemed sufficient
        when given by the following: In the case
        of a married person, the surviving spouse,
        or if no spouse survive him, by any child
        of such marriage, or in the event of a
        minor child of such marriage, the guard-
        ian of such child if any there be, or in
        the absence of such guardian, the court
        having jurisdiction of the person of sucn
        minor; in the event that neither spouse
        nor child survives such deceased, then per-
        mission for an autopsy shall be valid when
        given by a person who would be allowed to
        give such permission in the case of an un-
        married deceased.
           "If the deceased be unmarried, then per-
        mission shall be given by the following for
        such autopsy, in the order stated: father,
        mother, guardian, or next of kin, and in
        the absence of any of the foregoing, by
        any natural person assuming custody of and
        responsibility for burial of the body of
        such deceased, If two (2) or more of the
        above named persons assume custody of the
        body, consent of one (1) of them shall be
        deemed sufficient."
        Although there are no cases defining "absence"
as that term 2s used in Article 49.05, Vernon's Code of
Criminal Procedure, it is the opinion of this office that
the word "absence", as used therein, means "non-existent".
If any of the parties enumerated in Article 49.05, Section
1, are living and are capable of giving consent, then con-
sent for the autopsy must be obtained from the party upper-
most on the list. Article 49.05, Section 1, Paragraph 1,
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Honorable Henry Wade, page 3 (C-762 )


provides that consent for autopsy must be obtained from
the spouse, if the spouse survives. Paragraph 2 must be
given the same construction. If the father of the de-
ceased is living, then he alone can give consent to an
autopsy. If all of the enumerated parties are deceased
or presumed to be dead under the provisions of Article
5541, Vernon’s Civil Statutes, then consent may be ob-
talned from a natural person assuming custody of and
responsibility for burial of the body of such deceased.
        In answer to question 2(a), it Is the opinion
of this office that this sentence refers only to natural
persons assuming custody of and responsibility for bur-
ial of the body of such deceased. A “natural person”
evidently refers to any person other than those enu-
merated. In answer to question 2(b), it is the opin-
ion of this office that the father, if living, must give
consent for the autopsy, regardless of whom assumes cus-
tody of the body.

                      SUMMARY

           (1) The term “absence” as used In Arti-
        cle 49.05, Code of Criminal Procedure, Sec-
        tion 1, Paragraph 2, means “non-existent”.
           (2)(a) The last sentence of Section 1
        of Article 49.05, Code of Criminal Procedure,
        states: "If two (2) or more of the above
        named persons assume custody of the body,
        consent of one (1) of them shall be deemed
        sufficient”. This sentence refers only to
        natural persons assuming custody of and
        responsibility for burial of the body of
        such deceased,
           (2)(b) If two uncles of the deceased
       assume  custody of the body, consent for an
        autopsy must nevertheless be obtained from
        the father if living.
                             Yours very truly,
                             WAGGONER CARR
                             Attorney General of Texas

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Honorable Henry Wade, page 4 (C-762 )


                             *m#~wu&g
TWM/er                         Assistan; Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert E. Owen
Lonny F. Zwiener
Malcolm Quick
John Banks
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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