Eoc>rable Henry Wade      Opinion NO. w-1261
Diz:;.nict
         Attorney
Dallas County             Re:   Authority of a ,ju&ticeof the
Dallas, Texas                   peace to order an autopsy to
                                determine cause of death not
Dear Mr. Wade:                  the result of a crime.
       You recently requested an opinion from this office on
the following question:
          "Whether or not Sections 5,6 and 7 of
      Article 968 of Vernon's C.C.P. and Article
      4477, Rules 43 atid.Qlaof the Sanitary Code
      of the State of Texas provide for a Justice
      of the Peace to hold an inquest and order
      an autopsy, if necessary, to determine the
      cause q death of a deceased person whose
      death is not the result of a crime and is
      not related to the.detectlon of.crime?"
      Vernon's Code of Criminal Proce.dureprovides as.follows:
         ,"Any Justice bf the Peace shall be author-
      ized, and It shall be his,duty, to hold in-


         “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      i
      that he came to his death by unlawful means.
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        Hon. Henry Wade      Page 2     Opinion No. ~~-1261


                  “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 prac-
              ticing 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, Forty-sixth Legislature, 1939, page
              343, does not know the cause of death. When
              the local health officer or registrar of vital
              statistics whose duty it 1s to certify the
              cause of death does not know the cause of
              death, he shall so notify the Justice of the
              Peace of the precinct in which the death oc-
              curred and request 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 to the cause of death and are un-
              able 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, Fortieth
              Legislature, 1927, page 116.   In case of such.
              uncertainty the attending physician or physicians,
              or the superintendentor general manager of the
              hospital or. institution In which the deceased
              shall have died, shall so report tomthe Justice
              of the Peace of the precinct In which the death
              occurred, and request an inquest.
                 "The lnquests‘authorised and required by this
              Article shall be held by the Justice.of the Peace
              of the precinct in which the death occurred, but
              'inevent the Justice of the Peace of such pre-
              cinct is unavailable, or shall fall or refuse to
              act, then such Inquest shall be conducted by the
              nearest available Justice of the Peace In the
              county in which the death occurred."(Emphasis added)
               Subdivision 5,6 and 7 and the unnumbered paragraph fol-
        lowing subdivision
                  _ _ _I_  7
                           -.were added to this article'by the amenda-
        tory act of lyq{. There are no appellate court decisions
        relating to the 1947 amendment. However, the language of the
                                                              .
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    Hon. Henry Wade      Page 3      Opinion No. WW-1261


    statute is clear and unambiguous. A duty is placed upon the
    justice of the peace to order inquests In the cases set out.
           Article 970 sets out the conditions under which
    autopsys must be held. This statute provides in part as
    follows:
              "Upon an inquest held to ascertain the
           cause of death, the Justice of the Peace
           shall in all cases call in the county health
           officer, or if there be none or if his ser-
           vices are not then obtainable, then a duly
           licensed and nracticlng physician, and shall
           procure their opinions and advice as to the
           necessity of an autopsy before reaching a
           determination as to whether or not to order
           an autopsy to determine the cause of death...."
    From this sentence we conclude that a justice of the peace is
    only required to consult with the county health officer or
    if he Is not obtainable a duly licensed and practicing
                                                         -_physi-
                                                             _
    cian about an autopsy as an aj.dor incident to an Inquest.
           Article 970, Code of Criminal Procedure, was also
    amended In 1947.  Part of this amendment provided:
              "If upon his own determination he deems
           an autopsy necessary, the justice of the
           peace shall request the county health officer,
           or if there be none or if it be impracticable
           to secure his services, 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 dearthwas from natural causes or
           resulted from violence, and the nature and
           character of either of them."
    .From this sentence we conclude that It is entirely discretion-
     ary with the justice of the peace whether or not an autopsy
     is necessary to determine the cause of death. We construe
     these twcssntencez together to mean that when an inquest is
    held the justice of the peace shall "consult" with the county
     health officer or if his services are unobtainable, some duly
     licensed and practicing physician as to whether an autopsy
     shall be held to.determlne the cause of death. It is entirely
     discretionary with him whether or not the autopsy is held.
     The statute does not require such an autopsy. Under Rule &la
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Hon. Henry Wade       Page 4      Opinion No. ~~-1261


of Article 4477, V.C.S., the justice of the peace may feel
that an autopsy,must be performed before making the certi-
ficate of death. This again Is within his discretion and
under Article 970 it makes no difference whether the death
resulted from natural causes or from violence.
       It is, therefore, our opinion in answer to your
question under Article 968 of Vernon's Code of Criminal
Procedure that a justice of the peace must hold, and is re-
quired to hold, an Inquest to determine the cause of death
under cases set out therein. Whether or not an autopsy
should be performed Incident to such inquest is discretion-
ary with the justice of the peace. Under Section 970,
.Vernon'sCode of Criminal Procedure, the justice of the
peace is not "required" to order an autopsy.
                        SUMMARY
            A justice of the peace Is required to
         hold an'in uest In all cases set out in
         Article 96 % of Vernon's Code of Crlmlnal
         Procedure. Article 90 does not "require"
         an autopsy In all ca6es. Whether an
         autopsy Is to be performed In connection
         with an inquest 1s discretionary with the
         justice of the peace.
                               Yours very truly,

                               !jzzkTwI&
NVS:sh                            Assistan; Atto ney Gener 1
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Fred D. Ward
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee,Jr.
