                      THE    ATTORXEP       GENERAL
                                 OF TEXAS




    Honorable Charles W. Chapman             Opinion No.    JR-1202
    Criminal District Attorney
    Hays County Courthouse, Suite 208           Re:   Inquest procedures
    San Marcos, Texas 78666                     under chapter 49 of the
                                                Texas Code of Criminal
                                                Procedure   (RQ-2051)

    Dear   Mr.    Chapman:

         You ask a number of questions     relative   to inquest
    procedures under subchapter A of chapter 49 of the Code of
    Criminal Procedure.  Subchapter A is applicable to deaths in
    a county that does not have a medical examiner.   YOU advise
    that your questions    are prompted by the decision     of a
    justice of the peace to hold an "inquest hearing"   following
-   an earlier determination at an lVinguest*'as to the causes of
    death. You ask:

                     (1)      In the event the Justice of the
                 Peace has conducted   the inquest and made a
                 determination, is that determination    final
                 with regard to Articles     49.04 and 49.05?
                 Can, in other words, there be a hearing after
                 an inquest has been conducted?

                     (2)      If the Justice of the Peace has
                 made a determination under Article 49.05 and
                 a subsequent   inquest hearing is held under
                 Article 49.14, and a jury's determination   is
                 different than that of the Justice     of the
                 Peace, which is the prevailing determination?
                 Does the hearing jury or another Justice    of
                 the Peace have the right to amend the finding
                 of the original Justice of the Peace?

                    (3)      May the Justice of the Peace who
                 has made the initial determination be called
                 as a witness in the subsequent jury hearing
                 to testify as to her knowledge of the death
                 scene and the death scene investigation?




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           (4)      If so, may the Justice    of the
        Peace then recuse herself from presiding    to
        be a witness    in the 'matter and request
        another available  justice of the peace    (in
        the same county) to preside over the hearing?

           (5)      Since the Justice  of the Peace,
        under Article   49.05(3),   can conduct
        inquest 'at any other place determined to i:
        reasonable by the justice,' may the place be
        located in an adjacent county? What, if any,
        are the geographical limitations on the place
        for the inquest or inquest hearing?

            (6)     Article  49.14(d) provides   that
        the inquest hearing may be public or private.
        If it is private, may the Justice     of the
        Peace make it 'selectively private:' that is,
        permitting the family of the deceased      to
        observe the hearing, for example, but no one
        else other than the jurors, herself, and the
        state#s attorney?

     You have provided   us with the background     information    -.
that prompted   your questions.    A father, mother, and two
children, a boy and a girl, died in their home during the
early morning hours of March 4, 1990, in Euda, Hays County.
Under the circumstances you have related, an lqinguestl' was
required under article     49.04 of the Code of Criminal
Procedure.    The justice of the peace        in the precinct
conducted  an ~~inguest** that     resulted   in the    justice
requesting Dr. Robert Bayardo, Medical      Examiner of Travis
County, to perform autopsies    on the four deceased   persons.
See Code Crim. Proc. art. 49.10. Following the autopsies,
Dr. Bayardo made findings that the mother and two children
came to their deaths as the result of gunshot wounds        and
that the father's death was the result of a gunshot wound,
self-inflicted.   You have furnished us with the autopsy
reports that reflect   in detail the procedures employed      in
the examination and the conclusions reached by the medical
examiner.   YOU advise that the justice of the peace's
inquest findings correspond with the conclusions reached      in
the autopsy reports. On March 23, 1990, the justice of the
peace filed death certificates reflecting      that the mother
and two children died of gunshot wounds. On March 29, 1990,
the justice filed a death certificate      for the father that




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    found the     cause   of   death   to   be.   gunshot   wounds,
    self-inflicted.1

         You relate that on April 15, 1990, the remains of the
    father and son were removed from the cemetery at the request
    of the next of kin of the father. See Health 8 Safety Code
    5 711.004. Autopsies were performed on their remains by the
    Bexar County Medical Examiner,   Dr. Vincent  J. M. Dimaio.
    You have been advised that Dr.    Dimaio concluded  that it
    would be necessary for him to have the benefit of further
    evidence before he could reach a decision.   You state that
    about June 15, 1990, you were advised by the justice of the
    peace that conducted   the **inquest* that she had set an
    "inquest hearing" for June 27, 1990. This hearing has been
    continued to an indefinite date. You state that you did not
    request the "inquest hearing," and in the event such a
    hearing is held, you are going to ask for a jury.

         You ask whether the justice of the peace may hold an
    l@inguest hearing" after findings have been made as the
    result of the ~~inguest.~~

         Article 49.01 of the Code of Criminal Procedure defines
P   "inquest@* and "inquest hearing," as follows:

                (2)  'Inquest' means an investigation into
            the cause and circumstances of the death of a
            person, and a determination, made with or
            without a formal court hearing, as to whether
            the death was caused by an unlawful act or
            omission.

                (3) 'Inquest Hearing' means. a    formal
            court hearing held to determine whether  the
            death of a person was caused by an unlawful
            act or omission and, if the death was caused
            by an unlawful act or omission,    to obtain
            evidence to form the basis of a criminal
            prosecution.



         1. Attorney General Opinion H-1064     (1977) concluded
    that where it is determined that an erroneous cause of death
    is shown in a death certificate, the error may be corrected
    in accordance with rule 51a of article 4477, V.T.C.S.,   (now
    see Health & Safety Code 5 191.028) by the attachment of an
    amending certificate.




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     Article 49.05 requires that the justice of the peace
shall conduct   an inquest    immediately   or as soon     as
practicable after the justice of the peace is notified     of
the death. Article 49.03 of the Code of Criminal    Procedure
states that the powers granted   and duties   imposed on the
justice of the peace are independent      of the powers   and
duties of a law enforcement agency investigating a death.

     Under article 49.14 of   the Code of Criminal   Procedure
an "inquest hearing" may      be held under the      following
circumstances:

            (a) A justice of the peace conducting  an
        inquest may hold an inquest hearing if the
        justice determines   that the circumstances
        warrant the hearing. The justice shall hold
        an inquest hearing if requested to do so by a
        district  attorney or a criminal district
        attorney who serves the county in which the
        body was found.

Subsection (b) allows an "inquest hearing" to be held with
or without a jury unless the district attorney requests that
the hearing be held with a jury.

     We do not construe article 49.14 to provide      for a
hearing to review an earlier determination as to the cause
of death made at the inquest. We believe the provisions   of
article 49.14 are to be utilized when the justice of the
peace or the     district  attorney  feel    that there   is
insufficient evidence available to make a determination   as
to the cause of death. Evidently, the justice of the peace
felt that an article 49.14 hearing was unnecessary at the
time she made her findings. The conclusions as to cause of
death in the four death certificates     is certified to be
"on the basis of examination   and/or investigation,  in my
opinion, death occurred at the time, date, and place due to
the cause(s) and manner as stated."    Apparently, you were
satisfied as to completeness of the investigation since YOU
state that you did not request a hearing.

     The Supreme Court of Texas in Boehme v. Sovereian  Camv
Woodmen of the World 84 S.W. 422 (1905) contrasted        an
inquest conducted   und& our statutes with an inquest at
common law.    The court stated that, unlike a common    law
coroner's   inquest, our statutes provide no means       for
traversing the finding, "nor is any method whatever  secured
for the correction     of an erroneous   finding."   See 78
A.L.R.Zd 1219 Coroner's ,Inouest. Under our statutes      an
                                                                 -,




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inquest proceeding does not have to be public. The hearing
at common law was public.  In refusing to admit the results
of an 'inquest finding of suicide in a suit against       an
insurance company, the Boehme court noted the pit-falls
attendant to allowing the admission   of the results of an
inquest. We believe the observations of the court in Boehme
may be relevant to the issue of whether to allow a justice
of the peace to hold a second hearing proceeding       after
having made a decision as to the cause of death.  In Boehme,
the court stated:

           The purpose of such inquest under our    law
        is merely to detect crime, and to take      the
        preliminary steps to secure a trial of      the
        supposed offender.

           . . . .

        Especially do we think that it was not a
        purpose of our lawmakers to make the inquest
        a means of perpetuating testimony to be used
        in a civil suit, or by the finding of the
        justice to manufacture evidence for a use in
        a case between other parties.       Commenting
        upon the impolicy of such a rule, Chief
        Justice Hayt, of      the Supreme Court      of
        Colorado,  says : 'In case of death under
        suspicious circumstances,   or resulting  from
        accident, the rule permitting inquisitions to
        be used in evidence would result in a race
        and scramble to secure a favorable coroner's
        verdict, that would influence, and perhaps
        control, in case suit should be instituted
        against   life    insurance   companies   upon
        policies  of insurance, and in cases         of
        accidents occurring as a result of negligence
        on the    part of     corporations   operating
        railways, street car lines, mining for coal
        or the precious metals, et cetera.          Law
        writers,  of late, have frequently       anim-
        adverted upon the carelessness     with which
        such inquests are frequently conducted,     and
        to allow inquisitions   to be used in a suit
        between private parties upon a cause of
        action growing    out of the death of the
        deceased,  as in this case, would be to
        introduce an element of uncertainty into the
        practice, which we think would be contrary to
        public policy and pernicious in the extreme.




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        Germania.                      win, 24        Colo.   ,..:,'
        43, 51 Pac. 488, 65 Am. St. Rep. 215.

     Smith, Coooeration    Between     Law and    Science  &
Scientific Proof, 20 Tex. L. Rev.  433  (1941) reviews  short-
cominas of our svstem of allowina iusticer of the peace to
perform the fun&ion of the coroner-at common law.2-

           The justice, being an elected officer,      is
        not free from the possibility of political
        pressure, and his short term of office does
        not permit him to accumulate experience        in
        his very occasional    duties as coroner.     His
        jurisdiction is ended if he believes the case
        to be     suicide.     Inquest    seems    hardly
        available in behalf of an accused who would
        bolster his protested innocence by scientific
        confirmation.   The proceeding is given the
        form of a judicial    inquiry while having    few
        of its incidents.      It does not permit      of
        traverse or appeal, and the verdict       reached
        is not res adiudicata.    Indeed, by the better
        view,  it    '   inadmissible     both on     the
        subsequent
            .       hiiicide   trial  and  in any   civil _.
                                                           :~-
        litigation based on the death. The inquest
        is but a      preliminary    device to     gather
        evidence in connection with possible criminal
        proceedings, being auxiliary to and in aid of
        both the examining trial and subsequent grand
        jury deliberations.

            . . . .

           The Texas system of investigating   sudden          .,-,
        death   interposes a lay judgment     between         ..
                                                               ,.~
        consecutive steps of a scientific inquiry  in
        which time is of the essence, and oft times
        the evidence is evanescent.




     2. Article 49.25 of the Code of Criminal      Procedure
requires counties having a population of 500,000 or more
(and not having a reputable medical school) to provide     a
medical examiner to conduct inquests rather than justices of
the peace.




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.

    Honorable Charles W. Chapman - Page 7    (JM-1202)




         The Court of Criminal Appeals in Fishbeck v. State, 225
    S.W.2d 854   (1948) stated that under articles       969  (now
    article 49.09) and 927    (now article 49.08) of the Code of
    Criminal Procedure, a justice of the peace was authorized to
    order the disinterment   of the deceased's   body on February
    12, 1947,  for the purpose  of holding an inquest despite the
    fact that an inquest had been held on June 9, 1945,
    following the death of the deceased.      The reason given by
    the justice of the peace for the subsequent proceedings    was
    that the first inquest "was incomplete and inconclusive."

         Article 49.09 (formerly    article 969)3 of     the Code   of
    Criminal Procedure provides:

                (a) If a body subject to investigation
            under Article 49.04 of this code is interred
            and an authorized oerson has not conducted an
            inouest required under this subchapter,     a
            justice of the peace may direct the disinter-
            ment of the body in order to conduct       an
            inquest.   (Emphasis added.)

         Article 49.08  (formerly article    927) of     the Code   of
    Criminal Procedure states:

             _~ A justice of the peace conducting      an
            inquest may act on information the justice
            receives from any credible person or on facts
            within his knowledge.

         The court concluded that the portion of the justice of
    the peace's  order directing  a second inquest and opinion
    testimony given at the subsequent inquest were admissible in
    a murder trial. Courts, other than in m,          appear to
    have consistently followed Boehme in holding that findings
    at an inquest are not admissible.   See. e.a., Armstrona  v.
    -Casualtv          C OS, 357 S.W.2d 168 (Tex. Civ. App. -
    Waco 1962, no writ): Comb'ned
                           )      Ame         0. v. McCall,  497




         3. Article 969 lacks the      clarity of   article    49.09.
    Article 969 provided:

       Section 1.' When a body upon which an inquest ought to
       have been held has been interred, the Justice may
       cause it to be disinterred for the purpose of holding
       such inquest.




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S.W.Zd 350   (Tex.   Civ. App.    -   Amarillo 1973,    writ:bref?d
n.r.e.).                                                     .-::
                                                              5 ..~"
                                                                  ":

     The court in Fishbeck   relied solely on articles:-;<969
(now article 49.09) and 927 (now article 49.08) in reaching
its conclusion despite the fact that article 969, as .-does
article 49.09, conditions  the disinterment  and inquest:,,on
there not having been an inquest previously      held ,by,.' a
qualified person. Under the circumstances you have related
a proper authority  held an inquest and ordered a medical
examiner to perform autopsies on the bodies of the deceased
persons.  To follow Fishbeck would be contrary       to-: the
express provisions of article 49.09 and place no limit-asto
time or the number of inquests that might be held so lbnb‘as
the justice of the peace had information from a-person'::.the
justice deemed credible or "facts within his own knowledge."

     We believe that it was incumbent on the justice of the
peace at the inquest to make a determination as to whether
it was necessary to hold a formal hearing in order to, make a
determination as to cause of death.      As pointed  out in
Boehme, death resulting     from suspicious    circumstances
provides a setting for a race and scramble to secure a
favorable verdict.    It is logical to assume that any
decision reached following an inquest will be unsatisfactory
to some of the interested parties under such circumstances.
Undoubtedly, this would result in pressure being applied   to
a justice of the peace to hold a further proceeding in hope
that a result favorable to the persons urging such hearing
may be reached. We believe the statement by the court in
Boehme that once a finding is made, there   is no means   for
traversing the finding, would be the conclusion of a.'~;IT&ritt
confronted with the scenario you have related.       .~.
                                                    ,_..,
                                                       '...i i

     It must be recognized that an inquest finding i$;';notto
be equated with a final judgment rendered by a court."'!".The
inquest hearing is held for the sole purpose of detecting
crime. 44 Tex. Jur. 3d Inouestg § 8 (1985).. The .-&&eity
granted a justice of the peace in holding     an inquest ri's
independent of the powers and duties of law enforcement
authorities in investigating a death. Code Grim. pe&-?, &&.
49.03.   Clearly,  an inquest verdict does )y-&Iprec3&~ .,, .'ia
grand jury investigation  into violations of the law.. See
Code Crim. Proc. art. 20.01.      Nor does it precltie ',a
district judge from conducting a court of in#i~ljy   .1%~xhe
judge believes  an offense has been committed against     the
laws of this state. Id. art. 52.01. Article.49 ;!I'5  fd):: of
the Code of Criminal Procedure provides that the-:jiistficeiof
the peace shall deliver a copy of the inquest summa* report




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Honorable Charles W. Chapman - Page 9 ,(JM-l202)




to therdistrict clerk who is to retain the report       "subject
to an'order of the district court.**

   ~.~We,?believethat it is incumbent upon a justice of the
peace.or  the district attorney to determine     whether  an
"inquest hearing" is necessary in making a determination  as
tocause of death before a finding is made following      the
Winguest.80

     AS you advise, the remainder     of your questions  are
contingent on our concluding that an inquest hearing may be
ordered after a finding has been rendered at an inquest. We
conclude that no such inquest hearing may be ordered under
the circumstances,    and therefore we do not address your
remaining~ questions.
                         SUMMARY

            The determination  of whether an inquest
        hearing is to be held must be made at the
        inquest.    Subsequent   to   findings being
        rendered as to cause of death at an inquest,
        a, justice of the peace may not order an
        i.nguest hearing.




                                       J I,M   MATTOX
                                       Attorney General of Texas

MARY&lX.LER
First Assistant Attorney General

Lou MC-Y
Executive-Assistant   Attorney General

JUDG~:~~IE:STEAKLEY
Special &asi,stant Attorney General

RENEA lmxs
Speci:sl -&s~si.stent
                    Attorney General

RICK GIL@IN
Chairmqq,, ,Gpinion Committee

Prepared;by Tom G. Davis
Assistant Attorney General




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