Honorable E. H. Griffin
County Attorney
young county
Graham, Texas

Dear sir:

                                     Opinion No. O-3155
                                     Re: Whether or not the Justice
                                          of the Peace in the given
                                          factual situation is en-
                                          titled to an inquest fee.

            This department has received your request for an opinion.

            From your letter we insert that which follows:

          "The Justice of the Peace, Precinct No. 1, Young
     County, Texas, recently held an inquest on the death
     of a man who committed suicide under the following
     fact situation; and said justice billed Young County
     for the customary $5.00 inquest fee, after filing .a
     record of the proceeding with the District Clerk, as
     required by Article 987, C. C. P., and after entering
     the proceeding on his inquest record, 88 required by
     Article 978, C. C. P., which the auditor refuses to
     Pay. I would like to submit to your department for
     an opinion the question of whether or not the Justice
     of the Peace is entitled to a fee for holding an in-
     quest in the following fact situation:

          "A man is sitting in a bedroom talking to his
     wife and one other woman. He leaves their presence
     and walks about 12 feet into another bedroom, gets
     a gun, and returns to a bathroom between the two bed-
     rooms, and kills himself."

          Title 13, Section 1, Code of Criminal Procedure, contains
the law of inquests. Article 968 of that title stipulates certain
factual situations when inquestual proceedings shall be conducted.
That article is:

          "Any justice of the peace shall be authorized,
     and it shall be his duty, to hold inquests without
Honorable E. H. Griffin, Page 2 (o-3155)



     a jury within his county, in the following cases:

          "1. When a person dies in prison.

         "2. When any person is killed, or from any
    cause dies an unnatural death, except under sen-
    tence of the law, or in the absence of one or more
    good witnesses.

          "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 suspicion that
     he came to his death by unlawful means."

          The office of an inquest can not be disputed. Its na-
ture and object is that of a preliminary investigation conducted
to ferret out information relative to those who have met violent,
unnatural, or prison deaths, and, if death by criminal agency is
established, to secure legal evidence as a foundation for a crimi-
nal prosecution of the guilty.

         See Boehme V. Woodmen of World, 98 Tex.
             376, 84 S. W. 422
         Gray V. State, 55 Cr. R. 90, 114 S. W. 642,
             22 L. R. A. (N.S.) 513
         Aetna Ins. Co. V. Love, 132 Tex. 280, 121
             s. w. (2d) 986
         Pierson v. Galveston Co. (Civ. App.) 131
             S. W. (2d) 27
         6. R. C. L. 1168
         32 C. J. p. 578

          In passing on the question before us we shall primarily
bear in mind the object and purpose of an inquest.

          The express provision of Article 968, C. C. P., not only
empowers a justice of the peace to hold inquests in the situations
stipulated but goes further and makes it a duty of his office.
This being as it is should not the justice of the peace be allowed
the exercise of his sound official discretion? On the basis of
both public policy and legal precedent, we think So.  In the case
of Pierson V. Galveston County, supra, the court adopts the fol-
lowing language from 13 Am. Jur. p. 108:

          "It is necessary for a coroner to determine
     whether a statute contemplates the holding of an
     inquest in a particular case. * * * Generally
     speaking, the determination of the question
Honorable E. H. Griffin, Page 3 (o-3155)



     whether an inquest shall be held rests, within cer-
     tain limitations, in the sound discretion of the
     coroner."

          Consequently, when a justice of the peace acting in his
sound discretion, holds an inquest and duly certifies the proceed-
ings and makes return to the proper court he is entitled to the
statutory fee; provided, of course, all the attending facts of
the motivating situation bring the proceedings within and under
some one or more of the four announced categories set out in Arti-
cle 968, C. C. P.

          It is our opinion that the justice of the peace must
acquaint himself with all the attending facts and circumstances
of a death and either hold an inquest or not according to the
dictates of his sound discretion.

          Whether the two women present were "good witnesses" to
the death within the meaning of Article 968, C. C. P., supra, is
a factual issue which this department must decline to pass upon.

         We trust this answers your inquiry.

                                         Yours very truly

                                    AITOFXEYGWERALOFTEXAS



                                    By    /s/ Wm. J. Fanning
                                              Wm. J. Fanning
                                                   Assistant

                                    By- /w/ Grundy Williams
GW:LM                                       Grundy Williams

         APPROVED FEB 24, 1941               APPROVED
                                             OPINION
          /s/ Gerald C. Mann                COMMITrEE
                                            BY /s/ R.W.F.
         ATTORNEY GENEPAL OFTEXAS              CHAIRMAN
