                      The Attorney               General of Texas
                                        December        18,    1979
MARK WHITE
Attorney General


                   Honorable Arthur C. Eads                      Opinion No. NW-103
                   District Attorney, 27th Judicial
                     District                                    Re: Whether evidence of autopsy
                   P. 0. Box 540                                 performed by military doctor is
                   Belton, Texas 78513                           excludable under article 38.23 of
                                                                 Code of Criminal Procedure on
                                                                 grounds of violation of the Posse
                                                                 Comitatus Act, 18 U.S.C. S 1385.

                   Dear Mr. Eadsr

                         You request our opinion concerning the applicability       of the Texas
                   exclusionary statute, Code Crim. Proc. art. 38.23, to evidence of an autopsy
                   performed by a military doctor, on the basis that such activity is a
                   prohibited use of the military by civilian authorities to enforce the laws of
                   the state. The fact situation you pose would arise when civilian authorities
                   find the body of a member of the military service off the military base and,
                   because of suspicious circumstances surrounding the death, they request that
                   an autopsy be performed by the staff at the military hospital.

                         Article 38.23 of the Code of Criminal Procedure provides:

                                 No evidence obtained by an officer or other person
                              in violation of any provisions of the Constitution or
                              laws of the State of Texas, or of the Constitution or
                              laws of the United States of America, shall be
                              admitted in evidence against the accused on the trial
                              of any criminal case.
                                 In any case where the legal evidence raises an issue
                              hereunder, the jury shall be instructed that if it
                              believes, or has a reasonable doubt, that the evidence
                              was obtained ln violation of the provisions of this
                              article,   then and in such event, the jury shall
                              disregard any such evidence so obtained

                          Section 1385 of title 18 of the United States Code provides:

                                 Whoever, except ln cases and under circumstances
                               expressly authorized by the Constitution or Act of




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Honorable Arthur C. Eads     -   Page Two    (Mw-183 1



           Congress, willfully uses any part of the Army or the Air Force as a
           posse comitatus or otherwise to execute the laws shall be fined not
           more than $10,000 or imprisoned not more than two years, or both.

       The only reported ease in which this federal statute has been considered by Texas
courts is Burns v. State, 473 S.W.2d 19 (Tex. Crim. App. 1971). Appellant, a soldier, was
convicted of sale of marijuana.       The sale was made to a college student who had
volunteered his help to the criminal investigation division (CID) at a military base. The
CID advanced marked money to the student to use to purchase narcotics from soldiers off
duty and off base. The student made a purchase, delivered it to the city police, who
notified the CID, who came and accompanied the police to the point where the appellant
and his accomplice were arrested      The appellant contended that the activity of the CID
violated 18 U.S.C. S 1385, and that the evidence of the offense should have been excluded
under article 38.23 of the Code of Criminal Procedure. The court rejected this contention
and found that there was no evidence used in the trial which was obtained in violation of
the federal statute. The court said, at 473 S.W.2d 21:

           We do not find that any part of the Armed Forces was used as a
           posse comitatus or otherwise to execute the laws

              Title 18, U.S.C.A. S1385, is vague and we find no cases
           construing its validity on constitutional grounds, but assuming that
           it is a valid statute, we must then interpret what it means to
           ‘execute’ the laws. Webster’s Third New International Dictionary
           (1969) definition of ‘execute’ is to ‘put into effect; carry out fully
           and completely’.       Black’s Law Dictionary,     5th Edition (1968)
           definition of ‘execute’ is ‘to complete; to perform; to follow out; to
           finish; accomplish; make complete; fulfill.’

           . . . Even though the CID agents may have been active in the
           investigation of narcotics traffic and specifically investigating the
           appellant’s activities, we do not believe they are shown to have
           acted as a posse comitatus or otherwise to execute the laws

       The question of whether the federal statute had been violated has been raised in only
a few other states, and in none has sufficient involvement by the military in civilian law
enforcement been found to taint the evidence in the state criminal prosecution.           In
Pennsylvania, there was no violation found when the military officials assisted police by
making a member of the armed services suspected of murder available for questioning and
cooperating in the search of his quarters. Commonwealth v. Shadron, 370 A.2d 697 (Pa.
1977). In a Kansas case, military police and civilian police were on a “joint patrol,” and
the military policemen assisted in the stop and search of a car of suspected armed
robbers. The court described this activity as a “technical violation” but not sufficient to
fatally taint the search so as to require application of the exclusionary rule. State v.
Danko, 548 P.2d 819 (Kan. 1976). The Oklahoma court has thrice rejected the argument
that the federal act was violated in narcotics cases where the purchase was made by CID
investigators, and convictions based on their testimony. Lee v. State, 513 P.2d 125 (Okla.




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Honorable Arthur C. Eads     -   Page Three     (NW-103)



Crim. 1973); Hildebrandt v. State, 507 P.2d 1323 (Okla. Crim. 1973); Hubert v. State, 504
P.2d 1245 (Okla. Crim. 1972).

       Only a few federal cases have considered the applicability of the federal statute.
The Ninth Circuit Court of Appeals has described the Act as having been “enacted during
the Reconstruction Period to eliminate the direct active use of federal troops by civil law
authorities.”  The court said that the Act’s prohibition has been “applied only to the off-
base use of military personnel by civilian authorities.”   United States v. Banks, 539 F.2d
14, 16 (9th Cir. 1976). The most recent, pertinent, and authoritamted                 States
v. Casper, 541 F.2d 1275 (8th Cir. 1976). It involved appeals by a number 3 defendants
convicted of offenses growing out of a civil disorder on an Indian reservation at Wounded
Knee, South Dakota, in 1973. During the disorder federal civil law enforcement officers
obtained military assistance including the use of armored personnel carriers, with
maintenance provided by the Nebraska National Guardt aerial photographic reconnaissance
service by the United States Air Force and the Nebraska National Guara the presence of
United States Army personnel ordered there to observe and report to the President,
 through the Department of Defense, the necessity of calling in federal troops; and advice
and counsel by United States Army personnel on the subjects of negotiations, logistics, and
rules of engagement. Whether involvement of this sort by the military violated the Posse
Comitatus Act was relevant to the validity of the defendants’ convictions       The Eighth
Circuit Court of Appeals approved the legal standard adopted by the district court for
determining whether a violation had occurred:

              Were Army or Air Force personnel used by the civilian law
           enforcement officers at Wounded Knee in such a manner that the
           military personnel subjected the citizens to the exercise of military
           power which was regulatory? proscriptive, or compulsory in nature,
           either presently or prospectively?

United States                       at 1278; affirming United States v. McArthur, 419 F. Supp
186 (D. N.D.                 nited States v. Red Feather. 392 F. Suoa 916 (D. S.D. 1975), and
United States v. JarEillo.      380 F. Suoa 1375. aooea rhismld, 510-F.2d 808 (8th Cir. i975),
 for other standsrds   - Iopted by distri’c’ts cot& L“direct active use” and “pervasive use.”
                 -. - a(
See also Unitec 1 States v. Walden, 490 F.2d 372 (4th Cir. 1974), cert. den., 416 U.S. 983
(-(use      of enlisted marines Iundercover        agents actively investigating crime violated
18 U.S.C. S 1385); Wrynn v. United States, 200 F. Supp 457 (E.D. N.Y. 1961) (use of Air
Force helicopter to aid in search for escaped prisoner at request of police violated Act).

        While the Texas Court of Criminal Appeals in the Burns case, *,              did not
articulate a clear standard for determining whether a viola=f           the federal Act has
occurred, we believe that case is consistent with the cases since decided in both federal
and other state courts in requiring direct and active involvement by the military in
civilian law enforcement at the request of civilian authorities before a violation is found
Indirect aid to civilian authorities was not the wrong that the statute was designed to
prevent     Whether our court would apply a test of “direct active use,” or “pervasive use,”
or the Eighth Circuit’s more elaborate “use in such a manner as to subject citizens to the
exercise of military power which is regulatory, proscriptive, or compulsory in nature,” we




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Honorable Arthur C. Eads     -     Page Four     (NW-103)



do not believe that the performance of an autopsy by military doctors at a military
hoqital on the body of a soldier found off the base would be found to violate any of those
tests It is our opinion that such assistance by the military would not be a violation of the
federal Posse Comitatus Act.

       Your second question concerns possible sanctions to compel autopsies ordered by a
justice of the peace.    Under article 49.03, V.A.C.C.P., a justice of the peace has the
authority to order an autopsy from a duly licensed physician where there is no county
health officer.  If such an order is made to a qualified physician as described in article
49.03, V.A.C.C.P., and that physician refuses to conduct the autopsy, does that justice of
the peace or the county in which the death occurred have any recourse against that
physician and/or medical facility by which the physician is employed?

        We are aware of no statutory or judicial authority providing for sanctions in the
situation where the physician to whom a request is made declines to perform the autopsy.
Therefore we must conclude that there exists no recourse against such a physician or any
institution by which he might be employed

                                        SUMMARY

           The performance of an autopsy by military doctors on the body of a
           soldier found off-base would not be violative of the federal posse
           comitatus statute.




                                                MARK     WHITE
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Charles Campbell
and William G Reid
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman




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Honorable Arthur C. Eads   -   Page Five    (Mw-103)



David B. Brooks
Charles Campbell
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid




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