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                      THE    A~XM~NEY              GENERAL
                                 OF     -XAS
                              AUSTIN.   TRXAH     W&711


                                   April17, 1972


        Honorable Oscar 8. McInnis         Opinion No. M-1119
        Criminal District Attorney
        Hidalgo County Courthouse          Re:    Authority of the the Jus-
        Edinburg, Texas  78539                    tice of Peace to order
                                                  the removal of a finger
                                                  from a deceased person
                                                  for the purpose of de-
                                                  termining the identity
                                                  of such person under
                                                  Article,49.03, Code of
                                                  Criminal Procedure, and
        Dear Mr. Mclnnisr                         related questions.
             Your recant request to this office for an opinion reads
        as follows:
               ”1 .    Whether the Justice of'the Peace may by
            proper    order, authorize the removal of a finger
            from a    deceased person for the purpose of deter-
            mining    the identification of such person?
               "2 . Whether the Justice of the Peace may
            order and authorize any person other than a
            County Health Officer or a duly licensed and
            practicing physician trained in pathology to
            remove such a finger from such deceased person
            for the purpose of determining identification
            of such deceased person?
               "3 . Whether the Justice of the Peace may
            by proper order authorize a Peace Officer, who
            is specially trained in identification work,
            to remove a finger from a deceased person for
            the purpose of determining identification of
            such deceased person?"
             The statute pertinent to the question is set out as fo,l-
        lows: Article 49.03, Code of Criminal Procedure, as amended by



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        Honorable Oscar B. McInnis, Page 2   (M-1119)


        House Bill No. 1354, 61st Legislature, Regular Session (1969)
        reads as follows:
                "The justice of the peace may in all cases 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 advice on whether
             or not to order an autopsy to determine the cause
             of death. If upon his own determination he deems
             an autopsy necessary, the justice of the peace 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 amount
             and nature of the work performed in making such
             autopsy. In those cases where a complete au-
             topsy is deemed unnecessary by the justice of the
             peace to ascertain the 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 death
             or whether anv crime has been committed. In the
             case of a boa> 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 as are required to determine
             the identity as well as the cause of death."
             (Emphasis added).
             In Attorney General's Opinion No. M-425 (1969), this of-
        fice ruled that the authority to order an autopsy is derived
        exclusively from the statute.
             Under the last sentence of Article 49.03, Code of Criminal
        Procedure, the Justice of the Peace has the authority to order




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Honorable Oscar B. McInnis, Page 3   (M-1119)


investigative and laboratory tests and processes as are required
to determine the identity of a body in the same manner as in
ascertaining the cause of death.
     We answer your first question, therefore, that a Justice
of the Peace, or other officer authorized in his absence, has
the authority to order the removal of a finger from a deceased
person for the purpose of determining identification of such
person.
     In answer to the second question, Article 49.03 limits
a Justice of the Peace or other proper officer to authorize
only a County Health Officer or a duly licensed and practicing
physician trained in pathology to.make an autopsy. Attorney
General's Opinion No. M-427 (1969). Therefore, the Justice
of the Peace may authorize only a County Health Officer or
a duly licensed and practicing physician trained in pathology
to remove such finger for the purpose of determining identifi-
cation of such deceased person.
     Our answer to your second question requires your third
question to be answered,in the negative.
     Our conclusion is .that under Article 49.03 a Justice of
the Peace or any other officer may not order anyone other than
a County Health Officer or a duly licensed and pr,acticing.phy-
sician trained in pathology to take a finger from a,bocly,in
order to ascertain the identity. However, the Justice of the
Peace can order a peace officer or any other specially trained
person in identification work to complete tests for identifi-
cation purposes.
                      SUMMARY
                      -------
       Under Article 49.03, Vernon's Code of Criminal
    Procedure, as amended by House Bill No. 1354, 61st
    Legislature, Regular Session (19691, a Justice of
    the Peace or other proper officer may not order
    any person other than a County Health Officer or
    a duly licensed and practicing physician trained
    in pathology to take a finger from a body in order
    to ascertain identity. After the removal, the
    Justice of the Peace can order any person specially




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                 Honorable Oscar B. McInnis, Page 4     (M-1119)



                      trained in identification work to complete tests to
                      determine ,identity.
                                                        very ply,




                 Preparedby Robert Darden
                 Assistant Attorney General
                 APPROVED:
                 OPINION COMMITTEE
                 Kerns Taylor, Chairman
                 W. E. Allen, Co-Chairman
                 Herschel T. Moore
                 Linward Shivers
                 Lynn Taylor
                 Jim Swearingen
                 SAMUEL D. MCDANIEL
                 Staff Legal Assistant
                 ALFRED WALKER
                 Executive Assistant
                 NC&A WHITE
                 First Assistant




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