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    Honorable W. G. Woods, Jr.                     *7 M-425
                                          Opinion No.         .,
    District Attorney
    75th Judicial District                Re:   Certain questions concerning
    P.O. Box 431                                the ordering, transportation,
    Liberty, Texas 77575                        making and payment.of and
                                                for autopsies in counties not
                                                having a coroner and not
                                                coming within the provisions
                                                of Article 49.25, C.C.P.,
                                                relating to medical examiners.
    Dear Mr. Woods:
           Your recent request to this office for an opinion
    reads as follows:
             "Please furnish this office with an opinion
          as to the following questions concerning the
          ordering,.transportation, making and payment
          of and for autopsies. Each question is pre-
          faced with the understanding that the county
          does not have a coroner nor does it come with-
          in the provisions of Art. 49.25, Code of
          Criminal Procedure, relating to medical ex-
          aminers in certain counties:
            "1. Is the decision as to whether an
          autopsy is to be performed in connection
          with an inquest within the sole descretion
          of Justices of the Peace acting as coroners?
            "2. In the event the first question is
          answered in the affirmative, then can a
          commissioners' court legally refuse to pay
          a pathologist for his services in performing
          an autopsy which has been ordered by a
          Justice of the Peace acting as a coroner
          in connection with an inquest?




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Honorable W. G. Woods, Jr., Page 2, (M-429


        “3.  In the event the second question is
      answered in the negative, then is the ,amount
      of the fee for a physician making an autopsy
      ordered by a Justice of the Peace in connection
      with an inquest within the sole descretion of
      the commissioners' court and not subject to
      review or appeal for being arbitrary and/or
      unreasonable, so long as such fee is not more
      than $lOO.OO?
         "4. Can a commissioners court legally pay
       the reasonable and customary charge for trans-
       porting a deceased human body to an adjacent
       county for the purpose of performing an autopsy
       properly ordered when there is no pathologist
       in the county where the person dies or the
       body is found, and if so, can they legally
       refuse to pay such charges?"
       A Justice of the Peace has the duty to hold an
inquest under Article 49.01,~Code of Criminal Procedure,
as amended by S.B. No. 779, Acts 61st Legislature, Regular
Session, 1969, under the following circumstances:
         "1 . When a person dies in prison or in jail;
         "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 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;
         "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 having been
       attended by a duly licensed and practicing physician,
       and the local health officer or registrar required
       to report the cause of death under Rule 41a,
       Sanitary Code of Texas, Article 4477, Revised
       Civil Statutes, General Laws, 46th Legislature,
       1939, page 343, does not know the cause of
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Honorable W. G. Woods, Jr., Page 3, (M- 425)



       death. When the local health officer 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 pre-
       cinct in which the death occurred and re-
       quest an inquest;
        "7. When a person dies who has been attended
      by a duly licensed and practicing physician
      or physicians, and such physician or physicians
      are not certain as the cause of death and are
      unable to certify with certainty the cause of
      death as required by Rule 40a, Sanitary Code
      of Texas, Article 4477, Revised Civil Statutes,
      Chapter 41, Acts, First Called Session, 40th
      Legislature, 1927, page 116. In case of such
      uncertainty the attending physician or physicians,
      or the superintendent or general manager of the
      hospital or institution in which the deceased
      shall have died, shall so report to the justice
      of the peace of the precinct in which the
      death occurred, and request an inquest.
        "The inquests authorized and required by
      this Article shall be held by the justice of
      the peace of the precinct in which the death
      occurred, but in event the justice of the peace
      of such precinct is unavailable, or shall fail
      or refuse to act, then such inquest shall be
      conducted by the nearest available justice of
      the peace, corporation court judge, county
      judge or judge of the county court at law of
      the county in which the death occurred."
       Article 49.03, Code of Criminal Procedure, as
amended by H.B. No. 1354, 61st Legislature, Regular Session,
1969, reads as follows:
        "The justice of the peace ma in all cases
      call in the county health Ofd-cer, or if there
      be none or if his services are not then obtain-
      able, then a duly licensed and practicing
      physician, and shall procure their opinions
      and their advice on whether or not to order
                 to determine the cause of death.
                  own determination he deems an
                         the justice of the peace

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Honorable W. G. Woods, Jr., Page 4, (M-425)


       shall, by proper order, request the County
       Health Officer, or if there .be none or if
       it be impracticable to secure his service,
       then some duly licensed and practicing
       physician who is trained'in pathology to
       make an autopsy in order to determine the
       cause of death, and whether death was from
       natural causes or resulting from violence,
       and the nature and character of either of
       them. The county in which such autopsy
       and inquest is held shall pay the physician
       making such autopsy a fee of not more than
       $300, the amount to be determined by the
       Commissioners Court after ascertaining the
       smount and nature of the work performed in
       making such autopsy. In those cases where
       a oomplete autopsy is deemed unnecessary by
       the justice of the peace to
                                 ,.~ascsrtai;nthe
       cause of death, he may by proper order, order
       the taking of blood samples or any other
       samples of fluids, body tissues or organs in
       order to ascertain the cause of d,eathor
       whether any crime has been committed. ,In
       the case of a body of a human being :whose
       identity is unknown, the justice ofthe peace
       rnx, by proper order, authorize such investi-
       gative and laboratory tests and processes as
       are required to determine the identity as
       well as the cause of death." (Emphasis added.)
       The final decision as to whether an autopsy shall
be ordered is within the discretion of the Justice of the
Peace or other officers authorized to act under Section 7
of Article 49.01, Code of Criminal Procedure. Attorney
General's Opinions V-365 (1947), WW-1261 (1962), O-4699:
(1942), and M-379' (1969).
       The authority to order an autopsy is derived ex-
cluaively from the statute, and the sole purpose for which
this authority may be lawfully exercised is the detection
of crime. Aetna Casualty and-Surety Company v. Love, 132
Tax. 280, 121 S.W.Zd 986 (1938).'
         A Justice of the Peace has no authority to order
an autopsy except in connection with the inquest and if
he holds an inquest, he must make a written record
thereof.    Aetna Life Insurance Company v. Love, 149
S.W.Zd 1071 (Tex.Civ.App. 1941, error dismissed, judg-
ment correct); Article 49.13, C.C.P.
                              -2127-



        ..,
Honorable W. G. Woods, Jr., Page 5, (M-425)


       We answer your first question, therefore, that a
justice of the peace or other officer authorized in his
absense, has the exclusive authority to order an autopsy
subject to the foregoing statutory limitations.
       In answer to the second question, Art. 49.03,
limits the maximum fee to $300.00 for the pay of a duly
licensed practicing physician who performs an autopsy.
However, the commissioners' court is given authority to
determine the reasonable amount of the fee to be paid,
based upon the work performed by the physician and within
the limit of $300.00. Therefore, the Commissioners'
Court cannot legally refuse to pay a pathologist for his
services in performing an autopsy which has been properly
ordered by the Justice of the Peace. However, in no case
shall the payment for such services exceed $300.00.
       In answer to your third question, the Commissioners'
Court shall determine the amount of the fee to be paid
to the physician performing the autopsy after ascertaining
the amount and nature of the work perfonned~in making
such autopsy. This determination is within the sole
discretion of the Commissioners' Court, and, being a
judicial function, may be revised, if at all, by appeal
or other appropriate proceeding. 15 Tex.Jur.Zd 381,
Counties 6164.
       your fourth question inquires about the payment
of charges for transporting a body to an adjacent county
for the performance of an autopsy. We have carefully
considered the provisions of the Code of Criminal Pro-
cedure relating to inquests and autopsies and are of the
opinion that they do not authorize that an autopsy be
performed in a county other than that in which death
occurred. In fact it is expressly provided in Article
49.03 that the county in which the autopsy and inquest
is held shall pay the fee of the physician performing
the autopsy. you are therefore advised that a Commissioners'
Court cannot pay for transporting a body to another county
for autopsy purposes. See Canales v. Laughlin, 147 Tex.
169, 214 S.W.Zd 451 (1948); Anderson v. Wood, 137 Tax.
201, 152 S.W.Zd 1094 (1941).
                       SUMMARY
          A justice of the peace or other officer
       authorized by Article 49.01, C.C.P., has the
       sole discretion to have an autopsy performed in

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                                                     .   *




Honorable W. G. Woods, Jr., Page 6, (M-425)


      connection with an inquest. Moreovt$r,the
      Commissioners' Court is obligated to pay a
      reasonable fee not to exceed $300.00 dollars
      and it can not pay for transporting a body
      to another county fbr au opsy purposes.
                             /f




Prepared by Robert Darden
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
w. 0. Shults, Chairman
Z. T. Fortescue
Scott Garrison
Bill Corbusier
Jim Swearingen
HAWTHORNE PHILLIPS
Executive Assistant




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