Honorable James Paul Shanks       @inion   No. M-427
County Attorney
County Courthouse
Baird, Texas
                           Re:    Whether a Justiae of the
                                  Pea,cecan order any person
                                  other than a County Health
                                  Officer or a practicing
                                  physician to take a blood
                                  sample from a body in order
Dear Mr, Shanks:                  to ascertain cause of death
        You have requested our opinion concerning whether a
Justice of the Peace may order any person other than a.County
Health Officer or a duly licensed-and practicing physician to
take a blood sample from a body in order to ascertain the
eauae of death.
        The statute pertinent to the question Is set out as
follows:
        Article 4g003, Vernon's Code of Criminal Procedure,
        as amended by House Bill MO. 1354, 61st Legislature,
        Regular Session, 1969:
             "The justlce of the peace may in all
        eases call in the County Health Officer, or
        if there be none or if his services are not
        then obtainable, then a duly licensed and
        practicing physician, and shall procure their
        opinions and their a.dviceon whether or not
        to order a,na,utopayto determine the cause of
        death. If UDOH~ his own determination he deems




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Honorable Ja~mesPaul Shanks, page 2 (~-427 )


       cause of death, and whether death was from
       natural causes or resulting from violence,
       and the nature and chara,cterof either of
       them. The county in which such a,utopsya,nd
       inquest is held shall pay the physician mak-
       ing such autopsy a fee of not more than $300,
       the amount to be determined by the Commis-
       sioners Court after a,acertalnlngthe amount
       a,ndnature of the work performed in making
       such autopsy. In those cases where a,com-
       plete autopsy is deemed unnecessary by the
       justice of the peace to a,acertalnthe cause
       of death, he may by proper order, order the
       taking of blood sa,mpleaor any other samples
       of fluids, body tissues or organs in order
       to ascertain the cause of death or whether
       any crime has been committed. In the case
       of a body of a human being whose identity is
       unknown, the justice of the peace may, by
       proper order, authorize such Investigative
       and laboratory tests and processes aa are
       required to determine the identity as well
       as the oause of death," (Emphasis added.)
        Article 49.03 should be read in light of Article
&g,Ol, Vernon's Code of Criminal Procedure, as amended by
Senate Bill No. 79$ 61st Legislature, Regular Session, 1969,
which sets out the instancea in which an autopsy Is required
and names the officers authorized to order the sa.me.
        If the justice of the pea.ce,or other officer authorized
under Article 49.01, deems an autopsy necessary, Article
49.03 specffically authorizes him to order the County Health
officer or a practicing physician trained in pathology to
perform It, The statute recognizes that there may be
instances where a complete autopsy la unnecessary, and in
those instances .thejustice of tha peace or other authorized
offieeF may order a parteal autopsy, that is, by the taking
of blood samplea and other samples from the body for the
purpose of determining the cause of death or whether any
crime has been czommitted. As a whole, Article 49,03 dea~ls
with autopsies, and regard&era of whether the autopsy ordered
is complete or partial, the Legislature has provided that
only County Health Qffieera and duly licensed physicians
trained In pathc&~~gycan be ordered to perform ft.




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Honorable Zamea Paul Shanks, page 3 (M-427 )


        Our conclusion is that under Article 49.03 a
justice of the peace or other proper offfeer may not
order anyone other than a County Health Officer or a
duly Ifcenaed a~ndpracticing physician trained in
pathology to take a blood sample from a body In order
to ascertain cause of death.


                    SUMMARY
            Under Article 49.03, Vernon's Code of
       Criminal Procedure,as amended by House
       Bill No. X354, 6lst Legislature,Regular
       Sessionp 1969, a justice of the peace or
       other proper officer may not order a,ny
       person other than a County Health Officer
       or a duly licensed and practicingphysician
       trafwed in pathology to take a blood sample
       from a body 1.norder to ascertain cause of
       death.




Prepared by Charles R, Parrett
a,ndTom Needy
Aesfatant Attorneys @renen%l
APPROVED:
OPINION CONMTJTEE
Kerns TayLozroG-~&man
George KePtox,,Vint~...Chairman
Rick Fisher
Neil Will.fams
Bob Tattimo:c,,~
W, 0. Shulta




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