Untitled Texas Attorney General Opinion ( 1999 )

July 20, 1999
The Honorable Jack Herrington Opinion K-0083
Red River District and County Attorney
P.O. Box 364 Re: Whether a county judge may conduct an
Clarksville, Texas 75426 inquest when the appropriate justice of the peace
is unavailable to do so (RQ-0010)
Dear Mr. Herrington:
Article 49.07(c) ofthe Code ofCriminal Procedure directs a person who is required to notify
the local justice of the peace of a death requiring an inquest to instead notify the county judge or
another listed official when the appropriate justice of the peace is unavailable. You ask whether this
provision impliedly authorizes the county judge to conduct the inquest. Consistently with our
conclusion in Attorney General Letter Opinion No. 97-101, we conclude it does not. Accordingly,
a county judge may not conduct an inquest.
Chapter 49, subchapter A of the Code of Criminal Procedure prescribes the “[dluties
performed by justices of the peace” during the course of an inquest. See TEX. CODE GRIM. PROC.
ANN. ch. 49, subch. A (Vernon Supp. 1999). An “inquest” is “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.” Id. art. 49.01(2). In
certain circumstances, an inquest must be conducted into the death of a person who dies in the
county. See id. art. 49.04(a). When a death requiring an inquest occurs, the physician or person who
possesses the body and a peace officer who has been notified of the death “immediately” shall
“notify the justice of the peace who serves the precinct in which the body was found.” Id. art.
49.07(a), (b). If that justice of the peace is unavailable, the person in possession or the peace officer
must “notify the nearest available justice ofthe peace, municipal courtjudge, county judge, or judge
of the county court at law of the county in which the death occurred or in which the body was
found.” Id. art. 49.07(c). A person who is required to notify the proper official but who intentionally
or knowingly fails to do so commits a Class C misdemeanor. Id. art. 49.07(d).
You indicate that Red River County has only one justice of the peace. See Letter from
Honorable Jack Herrington, Red River District and County Attorney, to Attorney General’s Office,
Opinion Committee (Jan. 6,1999) (on file with Opinion Committee). When thejusticeofthe peace
is unavailable to conduct an inquest, you continue, the county judge is notified and has been
conducting inquests. See id. You ask whether the county judge is authorized to do so.
The Honorable Jack Herrington - Page 2 (X-0083)
Under Attorney General Letter Opinion No. 97-101, the county judge is not authorized to
conduct inquests. As that opinion concludes, a municipal judge has no authority to conduct an
inquest under article 49.07(c). See Tex. Att’y Gen. LO-97-101, at 2. Thus, article 49.07(c) does not
implicitly authorize an official to conduct the inquest simply because the official is one who may
be notified when the appropriate justice of the peace is unavailable. Rather, article 49.07(c) allows
a person who must report a death requiring an inquest under article 49.07(a), (b) to comply with the
reporting requirement and thereby avoid criminal liability. See id.; see also TEX.CODE GRIM.PROC.
ANN. art. 49.07(d) (Vernon Supp. 1999) (making knowing or intentional failure to notify Class C
misdemeanor). Under article 49.07(c), a “county judge or justice of the peace who receives a report
may then exercise his or her statutory authority to provide for a temporary justice of the peace to
conduct the inquest, while a municipal court judge or judge of a county court of law may forward
the report to an officer with such authority.” Tex. Att’y Gen. LO-97-101, at 2.
The plain language of article 49.07(c) compels us to aftirm the conclusion of Attorney
General Letter Opinion No. 97- 101. We must construe a clear and unambiguous statute to effectuate
the statute’s plain meaning. See Boykin Y. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991). On
its face, article 49.07(c) requires a physician or a peace officer to notify an official other than the
justice of the peace serving the precinct in which the body is located when that justice is unavailable.
Nothing in article 49.07 or in any other statute explicitly or implicitly authorizes any official but a
justice of the peace to conduct the inquest. See Tex. Att’y Gen. Op. No. O-6640 (1945) at 2 (stating
that public officers possess those powers expressly conferred upon them or necessarily implied
therefrom).
Furthermore, prior to 1987, article 49.01 of the Code of Criminal Procedure explicitly
permitted a county judge (and other listed officials) to conduct an inquest in the event the local
justice of the peace was unavailable: “The inquests authorized and required by this Article shall be
held by the justice of the peace of the precinct in which the death occurred, but in the event the
justice of the peace of such precinct is unavailable, or shall fail or refuse to act, then such inquest
shall be conducted by the nearest available justice of the peace, corporation court judge, county
judge or judge of the county court at law of the county in which the death occurred.” TEX. CODE
GRIM. PROC. ANN. art. 49.01 (Vernon 1979) (emphasis added), amended by Act of May 21,19X7,
70th Leg., R.S., ch. 529,s 1, 1987 Tex. Gen. Laws 213X,2144-45. In 1987 the legislature deleted
the terminology authorizing an alternate official to conduct an inquest. See Act of May 21, 1987,
70thLeg., R.S., ch. 529, $1,19X7 Tex. Gen. Laws2138,2144-45;seeaZso HOUSERESEARCHORG.,
BILL &JALYSIS, Tex. H.B. 1104, 70th Leg., R.S. (1987) (stating that 1987 bill proposes some
substantive changes to inquest statutes). When the legislature amends a law by deleting language,
a court will presume that the legislature intended to change the law. See Friedrich Air Conditioning
&Refrigeration Co. Y. BexarAppraisalDist., 762 S.W.2d 763,767 (Tex. App.-San Antonio 1988,
no writ) (“it is not logical to accept that the legislature omitted the ‘rendered’ language without
recognizing that [it] had previously constituted an integral substantive component of the law”);
Buckner Glass & Mirror, Inc. v. T.A. Pritchard Co., 697 S.W.2d 712, 714 (Tex. App.-Corpus
Christi 1985, no writ) (effectuating legislature’s deletion ofwords “should finally obtainjudgment”);
see also American Sur. Co. Y. Ante11 Co., 36 S.W.2d 715, 719 (Tex. 1931) (stating that when
The Honorable Jack Herrington - Page 3 (X-0083)
legislature amends law, it is presumed that legislature intended to change law); Schorr v. Leissner,
659 S.W.2d 752, 754 (Tex. App.-Corpus Christi 1983) writ refd n.r.e., 668 S.W.2d 686 (Tex.
1984) (same); TravenolLob., Znc. v. BandyLab.,Znc., 608 S.W.2d 308,314 (Tex. Civ. App.-Waco
1980,writref dn.r.e.)(same); Johnsonv.McDaniel,461 S.W.2d 198,201 (Tex. Civ. App.-Eastland
1970, writ ref’d n.r.e.) (same); Adams v. Bidu, 83 S.W.2d 420, 424 (Tex. Civ. App.-Eastland)
(same), rev’d on other grounds, 84 S.W.2d 693 (Tex. 1935) (per curiam). But see Jones v. Fowler,
969S.W.2d429,433 (Tex. 1998)(percuriam)( concluding that legislature didnot intend substantive
change when it deleted “immediately” from “immediately preceding” in child-custody statute).
Thus, only ajustice of the peace, including a temporaryjustice of the peace, may conduct an inquest.
Chapter 49, subchapter A of the Code of Criminal Procedure, of which article 49.07(c) is a
part, is, however, problematic. First, while article 49.07(c) lists the officials that may be notified in
the event the appropriate justice of the peace is unavailable, neither it nor any other provision
instructs these officials how to proceed. As this office suggested in Attorney General Letter Opinion
No. 97-101, only a county judge or a justice of the peace who receives a report of a death requiring
an inquest may appoint a temporary justice of the peace to conduct the necessary inquest. Tex. Att’y
Gen. LO-97- 101, at 2. The other officials listed in article 49.07(c)-municipal court judge and judge
of the county court at lawonly may notify a county judge or justice of the peace of the need to
appoint a temporaryjustice. Second, the statute emphasizes the immediacy with which the inquest
must be begun, perhaps to expedite moving of the body or to ensure the accuracy of chemical
analyses of body fluids, see id. arts. 49.05(e), .10(i), (i), .ll (prohibiting moving body without
justice’s authorization and allowing for chemical analyses). See, e.g., id. arts, 49.07(a), (b), .18(a)
(requiring notification immediately or as soon as practicable). Multiple telephone calls and the
appointment of a temporary justice of the peace may hinder timely commencement of the inquest.
Third, other provisions in chapter49, subchapter A recognize that offtcials other than justices of the
peace may conduct inquests. Article 49.09(a), for example, permits a justice of the peace to direct
the disinterment of a body if “an authorized person has not conducted an inquest.” Likewise, article
49.15(a) requires the ~making of an inquest record for each inquest conducted by a justice of the
peace “or other person authorized under this subchapter to conduct an inquest.” See also TEX. CODE
GRIM. PROC. ANN. arts. 49.16, .22(a), .23(a), (c) (Vernon Supp. 1999). None of these reasons
overcome the plain language of article 49.07(c).
Consequently, acountyjudge may not conduct inquests. Rather, when the appropriatejustice
of the peace is unavailable, the county judge must appoint a temporary justice of the peace in
accordance with section 27.055(b) of the Government Code. See TEX. G~v’T CODE ANN.
5 27.055(b) (Vernon Supp. 1999).
The Honorable Jack Herrington - Page 4 (X-0083)
SUMMARY
A county judge may not conduct an inquest. Rather, as this
office indicated in Attorney General Letter Opinion No. 97-101,
when the appropriate justice of the peace is unavailable, the county
judge must appoint a temporary justice of the peace to conduct the
inquest.
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 Kyrnberly K. Oltrogge
Assistant Attorney General