                   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
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Encl.
