    OFFICE   OF THE ATTORNEY   GENERAL   . STATE OF TEXAS

   JOHN      CORNYN




                                                August 14,2002



The Honorable Charles D. Penick                             Opinion No. JC-0542
Bastrop County Criminal District Attorney
804 Pecan Street                                            Re:    Whether an      autopsy     report may be
Bastrop, Texas 78602                                        withheld from the       public    if a prosecutor
                                                            determines that its     release    could hinder a
                                                            murder investigation    (RQ-05    11 -JC)


Dear Mr. Penick:

         You ask if there is any provision of law that would prevent public inspection of an autopsy
report held by a justice of the peace, where disclosure would hinder the investigation or prosecution
of a serious offense.’ Autopsy reports held by a justice of the peace are ordinarily subject to
inspection by members of the public pursuant to Government Code section 27.004, and no statute
expressly excepts these documents from disclosure to the public. However, you might find the relief
you seek by securing a court order requiring the autopsy report to be withheld from public inspection
to prevent hindrance of the investigation and prosecution of the murder.

         You state that a murder was committed in the City of Bastrop and an autopsy was performed
on the victim in connection with an inquest by the justice of the peace into the death. See Request
Letter, supra note 1, at 1. The autopsy report, which is held by the justice of the peace, reflects
details of the crime that are unknown to the general public, and the Bastrop Police Department and
your office wish to prevent public disclosure of the report so it can be used to identify false
confessions and aid in investigating the murder. See id. A member of the media has requested
access to the autopsy report. See id.

         The records of a justice of the peace are records of a court, and therefore are not subject to
the Public Information Act or to its exceptions from disclosure to the public. See TEX. GOV’T CODE
ANN. $0 552.003(l)(B), .0035, .108(a) (Vernon Supp. 2002) (exception for information held by law
enforcement agency or prosecutor if release would interfere with detection, investigation, or
prosecution of crime). The records of the justice’s office have long been held to be available for
public inspection under section 27.004 of the Governrnent Code, which provides in part:




        ‘Letter from Honorable Charles D. Penick, Bastrop County Criminal District Attorney, to Honorable
John Comyn, Texas Attorney General (Feb. 11,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable     Charles D. Penick     - Page 2        (JC-0542)




                      (a) Each justice shall arrange and 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.

Id. § 27.004(a) (Vernon 1988). See Tex. Att’y Gen. Op. No. JC-0422 (2001); Tex. Att’y Gen. ORD-
25 (1974) ( construing prior codification of Government Code section 27.004). You ask if there is
an exception to Government Code section 27.004, or if other relief is available, when the disclosure
of an autopsy report held by the justice of the peace will hinder the investigation or prosecution of
a serious offense. See Request Letter, supra note 1, at 1.

         We consider whether chapter 49 of the Code of Criminal Procedure, which governs inquests
upon dead bodies, includes provisions making autopsy reports confidential. Inquests are conducted
by a justice of the peace pursuant to subchapter A, chapter 49, Code of Criminal Procedure, unless
the county has established the office of medical examiner. See TEX. CODE CRIM.      PROC. ANN. arts.
49.02, .04, .25 (Vernon Supp. 2002); see also Act of Apr. 21, 1955,54th Leg., R.S., ch. 159, 8 14,
1955 Tex. Gen. Laws 524, 527 (authorizing counties of at least 250,000 population to appoint
medical examiner). The commissioners court of any county of more than 1,OOO,OOO      population that
does not have a “reputable medical school” as defined by statute “shall establish and maintain the
office of medical examiner,” while the commissioners court of any county may do so. See TEX.
CODE CFUM.PROC. ANN. art. 49.25,§ 1 (Vernon Supp. 2002). See id. art. 49.25,§ 1-a (Vernon 1979)
(creation of multi-county medical examiners district by two or more counties). When the county
establishes the office of medical examiner, “all powers and duties of justices of the peace in such
county relating to the investigation of deaths and inquests shall vest in the office of the medical
examiner.” Id. art. 49.25, 5 12. The medical examiner or his duly authorized deputy may hold
inquests pursuant to chapter 49, subchapter B of the Code of Criminal Procedure. See id. art. 49.25
(Vernon 1979 & Supp. 2002).

          Because Bastrop County does not have a medical examiner’s office, the inquest in this case
was conducted by a justice of the peace. See Request Letter, supra note 1, at 1. A justice of the
peace “shall conduct an inquest into the death of a person who dies in the county served by the
justice” if “the circumstances of the death indicate that the death may have been caused by unlawful
means.” TEX. CODE CRIM. PROC. ANN. art. 49.04(a)(4) (V emon Supp. 2002). 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). The purpose of an inquest hearing is to determine whether the death
 of a person resulted from a crime, and if so, to obtain evidence to form the basis of a criminal
prosecution. See id. art. 49.01(3); see also Parsons v. State, 271 S.W.2d 643,65 1 (Tex. Crim. App.
 1953) (describing duties ofjustice of the peace acting as coroner). A justice “shall order an autopsy
performed on a body” if necessary to determine or confirm the nature and cause of death, if “directed
 to do so by the district attorney, criminal district attorney, or, if there is no district or criminal district
 attorney, the county attorney,” or under certain circumstances indicating neglect or abuse of a child.
 TEX. CODE CRIM. PROC. ANN. art. 49.10(e)(2)-(3) (V emon Supp. 2002). The justice of the peace
The Honorable   Charles D. Penick    - Page 3 , (JC-0542)




“shall request a physician to perform the autopsy,” and the commissioners         court shall pay a
reasonable fee to the physician. See id. art. 49.10(f)-(g). The autopsy in this case was performed
by the Travis County Medical Examiner’s office. See Request Letter, supra note 1, at 1.

         Article 49.15 requires the justice of the peace to make an inquest record for each inquest he
conducts. TEX. CODE GRIM. PROC. ANN. art. 49.15(a) (Vernon Supp. 2002). “The inquest record
must include a report of the events, proceedings, findings, and conclusions of the inquest.” Id. It
must also include “any autopsy prepared in the case and all other papers of the case.” Id. “All
papers of the inquest record must be marked with the case number and be clearly indexed and be
maintained in the office of the justice of the peace and be made available to the appropriate officials
upon request.” Id. If an inquest hearing was conducted, the record of the hearing is part of the
inquest record. See id. art. 49.15(b); see also id. art. 49,15(b)(l)-(9) (content of inquest hearing
records). The justice of the peace “shall certify a copy of the inquest summary report and deliver
the certified copy in a sealed envelope to the clerk of the district court,” who “shall retain the
surnmary report subject to an order by the district court.” Id. art. 49.15(d).

        We first consider whether article 49.15(d) of the Code of Criminal Procedure implicitly
makes the autopsy report confidential. Article 49.15(d) requires the justice of the peace to certify
a copy of “the inquest summary report” and “deliver the certified copy in a sealed envelope to the
clerk of the district court.” Id. While the statute does not describe the content of the “inquest
summary report,” we will assume that it includes the autopsy report or at least a summary of it.

         Under some circumstances, a record is sealed to make it confidential. See TEX. FAM. CODE
ANN. 8 58.003 (Vernon Supp. 2002) (records ofjuvenile court proceedings). However, our review
of article 49.15(d) shows that it uses the term “sealed envelope” for a different purpose and that it
does not mean that the inquest summary report is confidential.

        We first point out that the substance of article 49.15(d) has been part of Texas law for a
considerable time. Its precursor dates from 1887, when it read as follows:

                         [T]he justice before whom the . . . [inquest] was held shall
                certify 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 papers connected with the inquest, and shall seal up such
                envelope and deliver it, properly indorsed, to the clerk of the district
                court . . . who shall safely keep the same in his office subject to the
                order of the court.

See Act of Mar. 17, 1887,2Oth Leg., R.S., ch. 45, 8 1, 1887 Tex. Gen. Laws 3 1’32.

        The purpose of the article 49.15(d) requirement that the justice deliver the inquest summary
report in a sealed envelope becomes apparent when it is seen in its historical and statutory context.
A primary reason for holding an inquest is to gather evidence about a possible crime. The justice
The Honorable Charles D. Penick      - Page 4       (JC-0542)




has a duty to “preserve all tangible evidence” accumulated in the course of an inquest “that tends to
show the real cause of death or identify the person who caused the death” and to deposit this
evidence with the appropriate law enforcement agency “to be stored in the agency’s property room
for safekeeping” or “deliver the evidence to the district clerk for safekeeping subject to the order of
the court.” TEX. CODE CRIM. PROC. ANN. art. 49.17 (Vernon Supp. 2002). Section 49.15(d), like
article 49.17, provides for the recordation, preservation and authenticity of evidence.            The
requirement that the justice certify the inquest summary report and deliver it in a sealed envelope
helps ensure that a complete and accurate record will reach the district clerk.

         Similar statutes have been read as providing for the preservation and authenticity of court
records. For example, article 17.30 of the Code of Criminal Procedure requires the magistrate in an
examining trial to “certify to all the proceedings had before him . . . and transmit them, sealed up,
to the court before which the defendant may be tried, writing his name across the seals of the
envelope.” Id. art. 17.30 (Vernon 1977). The court in Duncan v. State wrote about the predecessor
of article 17.30 that “[t]he purpose of this statute is that these records may be preserved for use by
the grand jury and the prosecuting officers.” Duncan v. State, 279 SW. 457 (Tex. Crim. App. 1925)
(considering effect of magistrate’s failure “to certify, seal, and deliver to the clerk of the court” the
examining court proceedings as required by former Code of Criminal Procedure article 347 (19 11)).
See also Tex. Att’y Gen. Op. No. C-l 77 (1963) (district clerk must keep safely the proceedings
received from magistrate who holds examining trials, but may not deny district attorney access to
those records). The Supreme Court of Washington, addressing a statute that required depositions
to be enclosed “in a sealed envelope” and delivered to the court, asked whether appellant’s failure
to enclose a deposition in a sealed envelope “was such a fatal irregularity as to destroy its value as
evidence.” Kirkpatrick v. Dep ‘t of Labor and Indus., 290 P.2d 979, 980 (Wash. 1955). “[I]n the
absence of any evidence of tampering or alteration,” this mistake did not warrant suppression of the
deposition.   Id.; see also Travers v. Jennings, 17 S.E. 849, 850 (S.C. 1893) (notary shows that
deposition sent to court in sealed envelope is his work by using sealing wax stamped with notarial
seal, writing his name across envelope, or writing name across the flap of envelope after sealing it).
We conclude that section 49.15(d) requires the inquest summary report to be sealed in an envelope
to protect the authenticity of the evidence, not to make it confidential.

         We also consider whether article 49.15(a) of the Code of Criminal Procedure provides
confidentiality for the inquest records held by the justice of the peace. This provision states that
“[a]11 papers of the inquest record must . . . be made available to the appropriate officials upon
request.” See TEX. CODE GRIM. PROC.ANN. art. 49.15(a) (Vernon Supp. 2002). This language could
suggest that the papers are available only to the appropriate officials and not to the general public.
On the other hand, this provision could be intended to insure that the justice of the peace would
provide “appropriate officials” access to the records without cutting off any rights of public access
provided by another statute, specifically section 27.004 of the Government Code. Cf: Tex. Att’y
Gen. Op. No. C-l 77 (1963) (district clerk may not deny district attorney access to records of
examining trials).
The Honorable Charles D. Penick      - Page 5       (JC-0542)




         Legislative history supports the conclusion that section 49.15(a) does not make the inquest
report confidential to everyone but “appropriate public officials.” The language regarding the
availability of inquest papers to the appropriate officials was adopted in 1987, in a “systematic
revision of the state’s inquest and autopsy procedures.” HOUSE CRIM. JURISPRUDENCE      COMM., BILL
ANALYSIS, Tex. C.S.H.B. 1104,7Oth Leg., R.S. (1987). The committee’s substitute for House Bill
1104 was described as a “non-substantive clean-up bill.” HOUSE RESEARCHORGANIZATION,BILL
ANALYSIS, Tex. C.S.H.B. 1104,7Oth Leg., R.S. (1987). The bill made the duties ofthe justice of the
peace clearer and gave that officer additional powers. See id. There was no indication in the bill
analyses that the bill would affect public access to records of autopsies prepared for inquests.

         Section 49.15(a) and (d) may be compared with section 49.18(b) of the Code of Criminal
Procedure, which requires the investigation of the death of a person in the custody of a peace officer
or confined in a jail or prison. TEX. CODE CRIM. PROC. ANN. 5 49.18(b) (Vernon Supp. 2002). The
director of the law enforcement agency to which the peace officer belongs or of the facility in which
the prisoner was confined must investigate the death and file a written report of the cause of death
with the attorney general. See id. “The attorney general shall make the report, with the exception
of any portion of the report that the attorney general determines is privileged, available to any
interested person.” Id. Section 49.18(b) explicitly provides that the attorney general may determine
that portions of the report are privileged and withhold them from the public. See Tex. Att’y Gen.
ORD-521 (1989) (Part I on reporting form devised by office of attorney general is open; Parts II
through V are privileged).      Section 49.15(a) and (d), in contrast to section 49.18(b), does not
expressly make inquest records confidential.

         We find no provision in chapter 49 of the Code of Criminal Procedure that authorizes the
justice of the peace to withhold an autopsy report from public inspection, and we have not found any
 other statute that would except the autopsy report from inspection under Government Code section
 27.004 when disclosure to the public will hinder the investigation or prosecution of a serious offense.
We understand, however, that some public entities have found judicial relief in circumstances similar
to those of the present case. See Tex. Att’y Gen. ORD-389 (1983) (report of police investigation,
which included an autopsy report, was subject to protective order). Accordingly, you might find the
relief you seek by securing a court order requiring the autopsy report to be withheld from public
inspection to prevent hindrance of the investigation and prosecution of the murder.
The Honorable   Charles D. Penick    - Page 6      (JC-0542)




                                        SUMMARY

                         An autopsy report prepared in connection with an inquest by
                a justice of the peace into a murder may be inspected by the public
                pursuant to section 27.004 of the Government Code. Chapter 49 of
                the Code of Criminal Procedure, which governs inquests, does not
                provide confidentiality    for records of an inquest conducted by a
                justice of the peace, or for an autopsy report prepared as part of the
                inquest. We find no statute that would except such an autopsy report
                 from public inspection under Government Code section 27.004.
                However,     should the district attorney’s office or the police
                 department wish to prohibit public disclosure of an autopsy report to
                prevent hindrance of the investigation and prosecution of a murder,
                it might find relief by securing a court order requiring the autopsy
                report in the justice’s custody to be withheld from public inspection.




                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
