                       August   22,   1950

Eon. Gee. W. Cox, M.D.           Oplnlon Bo. v-1094.
State Health Officer
Department of Health             Re3 The legal.ltyof crema-
Austin, Texas                        tion without first ob-
                                     taining the certificate
                                     of a Justioe of the
                                     Peaoe that an autopsy
                                     vas performed or is un-
Dear Sir%                            necessary.
          Your recent re.ques$for an opinion from this
office reads in part as follows,
          "A question @s been,ralsedby one
     Of the izretitoriesin this State concetin-.~
     ln~ the proper interpretationof Section
     2, Artiole.969, Code of Criminal Procet
     durii
         .
          'Please advise aw if a oertlficatk 1:
     statFng.t$atau autopsy was performed ,m
     @at po%mt$Qxq was'necesa~,should be
                 .onlythose .inswoes where
     reqpired.,lti
-,   the death.Feoordshcws ,that,anzinqu6st
     was-held? OP, should'themner or oper-
     ator of'a,crematoryb@ze orematingus
     body-d&aand.andbe furnished,witha oer-
     tlflcate signed by the ~justioe'6fthe'
     peace of the preotict in which the death
     occurred stating that an a*opsy was per-
     formed or that 'no~.autopsy
                               was ne~cessary?"
            Section 2 of Article 969, v'.C.C.P.,provides:
          'Before anybody, ~uponwblch an in-
     quest is authorized by the proVisIons of
     Article 968, Code of Crlmlnal Procedure,
     1925, as herein amended, can be lawfully
     cremated, an autopsy shall be perfomed
     thereon as provided in this Act, or a cer-
     tificate that no autopsy was necessary
     shall be furbished by the Justice of the
     Peace. Before any dead body can be law-
     fully cremated, the owner or operator of
.   1




        Hon. Gee. X. Cox, M.D., page 2   (V-109)


            the crematory shall demand and be fur-
            nished uith a certificatesigned by the
            Justice of the Peace of the justice pre-
            cinct in which the death occurred sharing
            that an autopsy was performed on said body
            or that no autopsy thereon was necessary.
            Ho autopsy shall be required by the Jus-
            tice of the Peace as a prerequisiteto
            cremation in case death was aausedby the
            pestilentialdiseases of Aslatlc cholera;
            bubonic plague, typhus feiver,or SarallpoX,
            named in Rule 77, Sanitary Cod& of Texas,
            Article 4477, Revised Civil Statutes of
            Texas, 1925. All certificatesfurnished
            the omer or operator 0f.a orematoryby
            any Justioe,of the Peace, under the terms
            of this Act, Shall be preserved by-such
            owner or operator of such crematoryfor a
            period of two (2) years from the date of
            the cremation of said body."
                  It must be admitted that this statute Is not
        free from ambiguity.
                  It is stated in Texarkana & Ft. S. Ry. v.
        Houston Qas & Fuel Co., 121 Tex. 594, 601, 51 S.W.28
        2m, 287 (19321:
                 "In oonstruing~statuttjsenaoted di-
            reotly by the'Le@slature it l%the duty
            of the court to look to the entire act,
            Including the caption, the body of~the
            act, and even the emmgenoy clause, to
            determine the legislative intent. When
            the legislativeIntent $13auoe determin-
            ed It Is the law."
                  In Rldalgo County Dralnane Mst.Ro.1 v. Davld-
        8011,102 Tex. 539, 543, 120 S.W. 049, 851 (1909], it 1s
        stated at page 851:
                 "In determiningthe sense in which
            the language was used by the Le lslature,
            we will look to context and to &he purpose
            of the Legislature in enacting the law.'
                  Also, in Longoria v. State 126 Tex. Crlm. 362,
        363, 71 S.W.2d 268, 269 (19341, we dnd the following:
-   .   .




        Hon. Geo. W. Cox, M.D., page 3   (V-1094)


                  "We further observe that in aooord-
             anoe with settled rules of interpretation
             of statutes, even when the language used
             IS susceptible,oftwo meanings, the courts
             are to give It that meaning whlch,till con-
             form to the scope of the act and carry out
             the purpose of the statute. Mr. Black, ln
             his Hornbook on Interpretationof Iaws, p.
             56, lays downthe rule tbat,wherethe lan-
             guage used Is ambiguous, or admits of more
             than one meaning, It is to be taken ln such
             a sense as will conform to the scope of the
             act and oarry out the purpose of the stat-
             ute.'
                  House Bill 217, Aots 50th Leg. 1947, ch.369,
        p.745, amended Articles 968, 969, 970, 971, and 1053,
        Vernon's Code of Crlmlnal Procedure,and Section 1 of
        House Bill 613 Acts 46th Leg. 1939, ch. 1, p- 343.
        All of these sCatutes deal with Inquests.
                  The emergency clause of House Bill 217, supra,
        provides In part:
                  "The fact that Justices of the Peace
             and physicians and chemists are now under-
             paid for their services ln connectionwith
             the holding of inquests and the performing
             of autopsies on dead bodies; the fact that
             public health officers and registrars of
             vital statistics informationnow have no
             means of ascertaining the cause of death,
             in certain oases, as required by the Sanl- :
             tary Code of Texas; and the further fact
             that, as a safeguard in the detection and
             prevention of crime, dead bodies should not
             be cremated until the cause of death is de-
             termined; . . .'
                  We believe that the Legislature,ln passing
        House Bill 217, was considering only those instances ln
        which inquests were authorized to be held. To hold that
        such a certificate is required in all oases would be re-
        qulrl the Justice of Peace to Issue a certificate as
             2 s of which he oouIU have no direct knowledge In
        to fat
        the absence of'an Investigation. The statutes do not
        authorize investigationsby the Justice of the Peace ex-
        cept in connection with inquest proceedings.
.   ,   .




            Hon. Geo. W. Cox, M.D., page 4   (V-1094)


                      Therefore,we agree with you that a oertlfl-
            oate stating that an autopsy was performed or that no
            autopsy was necessary shoulU be required only in those
            instances where the death record shows that an inquest
            was held.
                                  SOMMARY
                     A certificatestating that an au-
                topsy was performed or that no autopsy
                was necessary is a prerequisitefor
                cremation only when the death record
                shows an inquest was held. The opera-
                tor of a crematoryIs not required to
                get a certificatesigned by the Justice
                of the Peace of the precinct In which
                the death occurred, stating that an au-
                topsy was,held or that no autopsy was
                necessary, In any other case before
                cremating a body.
            APPROVED:                          Yours very truly,
            J. C. Davis, Jr.                     PRICE DANIEL
            County Affairs Division            Attorney General
            Everett Hutohlnson
            ExecutiveAssistant
            Charles D. Mathews
            First Assistant
                                               By
                                                hi%%%   Assistant




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