   OPPlCE   OF THE   ATTORNEY   GENER*L   ST.kTE OF TEXC

   JOHN CORNYN




                                                   July 6, 1999



The Honorable DoMa J. Gordon                          Opinion No. JC-0071
Houston County Attorney
100 North 6th Street, Suite 105                       Re: Whether a county may pay the autopsy expenses
Crockett, Texas 75835                                 performed as part of an inquest into a death that
                                                      occurs in a neighboring county (RQ-1155)


Dear Ms. Gordon:

         A justice of the peace in one county cannot order an autopsy on a resident of that county who
dies in another county. See Tex. Att’y Gen. LO-94-060, at 1. Furthermore, because an order to
conduct an autopsy on aperson who died in another county is void, the justice’s county may not pay
for the autopsy. See id. at 2. You ask whether your county, Houston County, may enter into an
interlocal contract with a neighboring county under which the neighboring county pledges to pay
expenses on residents of that county who die in the Houston County hospital. We conclude it may
not.

         We assume you ask about autopsies performed under chapter 49 of the Code of Criminal
Procedure, which permits a justice of the peace to obtain an autopsy as part of an inquest. See TEX.
CODE GRIM. PROC. ANN. arts. 49.01(l), .10(a), (c), (e) (Vernon Supp. 1999) (defining “autopsy” and
authorizing justice of peace to order autopsy as part of inquest). A justice of the peace must conduct
an inquest into a suspicious or unexplained death that occurs in the county served by the justice to
determine whether the death resulted &om a criminal act or omission. See id. arts. 49.01(2), .04(a)
(defining “inquest” and requiring justice of peace to conduct inquest in certain circumstances); see
also Boehme v. Sovereign Camp Woodmen ofthe World, 84 S.W. 422,423 (Tex. 1905) (describing
purpose of inquest as “merely to detect crime”); Service Mut. Ins. Co. v. Banke, 155 S.W.2d 668,
669 (Tex. Civ. App.-San Antonio 1941, writ ref d) (stating that inquest’s sole purpose is to detect
crime). A county must pay “a reasonable fee to a physician performing an autopsy on the order of
a justice of the peace” if the physician assesses one. TEX. CODE GRIM. PROC. ANN. art. 49.10(g)
(Vernon Supp. 1999).

         The Interlocal Cooperation Act (the “Act”), TEX. GOV’T CODE ANN. ch. 791 (Vernon 1994
& Supp. 1999), authorizes a local government, including a county, to contract with other local
governments     to perform a governmental       function or service that each party may perform
individually.   See id. $5 791.003(4), .Ol l(c)(2) (V emon 1994) (defining “local government” and
listing permissible purposes for interlocal contract, respectively). Governmental functions comprise
several broad categories of services such as police protection or public health and welfare, but also
The Honorable   Donna J. Gordon    - Page 2     (JC-0071)




include any function in which the contracting parties have a “mutual interest.” See id. 4 791.003(3)
(defining “governmental functions and services”).

        Paying for a properly ordered autopsy is a governmental function or service for the purposes
of the Act. An autopsy ordered and performed under chapter 49 of the Code of Criminal Procedure
necessarily implicates a county’s interest in detecting criminal activity and protecting the public
welfare. See TEX. CODE GRIM. PROC. ANN. arts. 49.01(2), .04(a) (Vernon Supp. 1999) (defining
“inquest” and listing circumstances in which justice of peace must order inquest). As such, an
autopsy generally falls within the types of governmental         functions and services the Act
contemplates.

        We understand that the county where the fatal injury was inflicted, as well as the county
where the victim died, may desire to prosecute the homicide. Venue in a criminal prosecution for
homicide in which a person receives an injury in one county but dies in another as a result of the
injury is proper in the county in which the injury was received, where the death occurred, or where
the dead body was found. Id. art. 13.07 (Vernon 1977). Thus, it is possible that three counties
properly may pursue such a cross-county homicide: (1) the county where the death-causing injury
occurred; (2) the county where death from the injury actually occurred; or (3) the county where the
dead body was found. McCaine v. State, 211 S.W.2d 190, 191 (Tex. Crim. App. 1948); accord
 Washburn Y. State, 692 S.W.2d 576, 577 (Tex. App.-Houston [lst Dist.] 1985, no pet.).

        Yet, only the county where the death occurred is authorized or required to pay the physician’s
fee for conducting the autopsy, if a fee is assessed. See TEX. CODE GRIM.PROC. ANN. art. 49.10 (g)
(Vernon Supp. 1999) (“commissioners court shall pay a reasonable fee”). Under chapter 49 of the
Code of Criminal Procedure, a county’s responsibility to pay for, and a justice’s authority to order,
an inquest and autopsy hinges upon the location where the death occurred. Chapter 49 does not
provide an alternative scheme for a situation in which another county with venue desires to prosecute
the apparent homicide.

          Consequently, the county where the death occurred may not contract away its duty to conduct
 and pay for the autopsy. Conversely, a county has no authority to conduct or pay for an autopsy if
 the death occurred in another county. See Tex. Att’y Gen. LO-94-060, at 2. And because the
 Interlocal Cooperation Act does not authorize a county to perform a governmental function or
 service for another county where the nonperfotming county is not authorized to perform the task
 itself, Tex. Att’y Gen. Op. No. JM-1197 (1990) at 8, neither county may contract to do that which
 it otherwise lacks authority to do.
The Honorable   Donna J. Gordon    - Page 3     (X-007 1)




                                        SUMMARY

                          A county may not contract under the Interlocal Cooperation
                Act, TEX. GOV’T CODE ANN. ch. 791 (Vernon 1994 & Supp. 1999),
                to charge for autopsies performed under chapter 49 of the Code of
                Criminal Procedure on residents of neighboring counties who die in
                the former county’s hospital. Nor may a county contract to conduct
                or pay for autopsies ordered under chapter 49 of the Code of Criminal
                Procedure for its own residents who die in a neighboring county
                hospital.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
