Untitled Texas Attorney General Opinion ( 1961 )

E Y GENE
Honorable B. Truman Ratliff Opinion No. ``-2163
County Attorney, Delta County Re: Whether an osteopath is
Cooper, Texas qualified to hold the
office of county health
officer and related
Dear Mr. Ratliff: questions.
We are in receipt of your letter in which you asked
for an opinion from this office concerning the following
questions:
1. Can an osteopath serve as a county health
officer or can this office be filled only
by a medical doctor?
2. Can an osteopath or doctor other than the
county health officer take a blood specimen
where the results of such test will be in-
troduced as evidence in a trial of a driving
while intoxicated case?
3. From the standpoint of the prosecution of
a driving while intoxicated case what is
the validity of a so-called blood test
for intoxication taken by an osteopath or
by a medical doctor?
4. In the above instances is there any change
in the legal significance of the service
rendered by an osteopath rather than a
medical doctor?
Article 4422 of Vernon's Civil Statutes provides as
follows:
"The office of county health officer shall be
filled by a competent physician legally quali-
fied to practice under the laws of this State
and of reputable professional standing."
Article 4423 of VernonPs Civil Statutes provides
the method of providing for a county health officer and
Article 4427 provides the duties of the county health
officer.
Hon. B. Truman Ratliff Page 2 Opinion No. ``-1163
Article 4510 of Vernon's Civil Statutes provides
who is to be regarded as practicing medicine in this State.
Doctors of osteopathy are licensed in this State
by the Texas State Board of Medical Examiners and come
within the provisions and requirements of Chapter 6 of
Vernon's Civil Statutes, entitled, "Medicine."
Before Doctors of Osteopathy or Medical Doctors re-
ceive licenses to practice medicine in the State of Texas
they must meet the same requirements and pass the same
examinations and they receive the same license to practice
medicine in this State.
It is,therefore, our opinion that a doctor of
osteopathy who is duly licensed by the Texas State Board
of Medical Examiners, and is a competent physician, is
legally qualified to fill the office of a county health
officer if he possesses in addition the necessary reputable
professional standing as is required by statute.
Your second question concerns whether a doctor of
osteopathy or a medical doctor other than the county health
officer, who takes a blood specimen for the purpose of
determining the alcoholic content, can testify as to the
results of such test at the trial of a defendant in a
driving while intoxicated case.
It is our opinion that either a doctor of osteopathy
or a medical doctor can testify concerning the results of
a blood alcohol test which he has conducted to determine
the alcoholic content found in the blood of a defendant.
This opinion finds support in the following case:
Greiner v. State, 249 S.W.2d 601 (Tex. Crim. 1952).
On appeal from a conviction for murder without
malice under the provisions of Article 802c of Vernon's
Penal Code appellant contended, among other things, that
the testimony of Doctor Packard who testified during the
trial that he examined appellant after the accident and
that a blood specimen was taken under his supervision
which showed an alcoholic content in such an amount, that
in his opinion the defendant was intoxicated,.was inadmissable.
The Court of Criminal Appeals held at page 605 that:
Hon. B. Truman Ratliff Page 3 Opinion No. w-1163
11
... we think the result of the test ,was..
admissible for whatever it may be worth."
In the case of Marx v. State,277 S.W.2d 914 (Tex. Crim.
1955) appellant insisted that the court erred in permitting
the witness Chastaine to testify as to the results of an
analysis made by the Department of Public Safety of a blood
sample taken from the appellant. The trial court instructed
the jury that such testimony was not offered to show that
appellant was intoxicated but for the purpose of showing
that he had been drinking intoxicating beverages. The
witness Chastaine did not testify before the jury that it
was his opinion from the results of the anal,ysisthat
appellant was intoxicated but only testified as to the
amount of alcohol and the number of bottles of beer a per-
son of a certain weight would have to consume in order to
have the amount of alcohol found in his system.
The Court of Criminal Appeals held at page 916:
"In view of this testimony we perceive no
error in permitting the witness Chastaine to
testify as to the result of the blood test
and express his opinion as to the amount of
alcohol or number of bottles of beer a per-
son would have to consume in order to have a
certain percentage of alcohol in his blood."
In Sandel v. State, 253 S.W.2d 283 (Tex. Crim. 1952)
appellant complained on appeal of the introduction of
testimony regarding the taking of a blood test and the
results thereof.
The Court of Criminal Appeals held:
"Contrary to appellant's contention we have
held that such testimony is admissable. See
Brown v. State, Tex. Cr. App., 240 S.W.2d
310; Heath v. State, Tex. Cr. App., 244 S.W.2d
ap5.f'
In Ritchie v. State, 296 S.W.2d 551 (Tex. Crim. 1956)
aanellant objected to the testimonv of J. D. Chastain, a
Chemist and Toxicologist of the Texas Department of Public
Safety concerning the analysis of the blood sample taken
from the appellant. The witness was permitted to describe
the test used in analyzing the blood sample, testified
that it was accurate and testified as to the result of the
test. The witness was further permitted to testify as to
Hon. B. Truman Ratliff Page 4 Opinion No. ``-1163
the percentage of alcohol in the blood that will cause a
person to be intoxicated as established by tests on human
beings, the percentage of alcohol in a bottle of beer and
the burning rate of alcohol by the human body, and the
number of bottles of beer a person would have to consume
to have a certain percentage of alcohol in his blood. It
was appellant's contention that such testimony was merely
a conclusion and was hearsay.
The Court of Criminal Appeals held:
"We find no error in permitting the testimony.
The witness was shown to be an expert and as
such was qualified to testify to the results of
the analysis that he made of the blood sample
which, under the evidence, was sufficiently
identified. Abrego v. State, 157 Tex. Crim. 264,
248 S.W.2d 490; Greiner v. State, 157 Tex. Crim.
479, 249 S.W.2d 601; and Br an v. State, 157
8
Tex. Crim. 592, 252 S.W.2d 14. As an expert,
the witness was properly permitted to describe
the test used and testify to the percentage of
alcohol in the blood necessary to render a per-
son intoxicated as based upon tests made of
other human beings. (Citing cases) The witness
was further qualified to testify to the per-
centage of alcohol in a bottle of beer, the
burning rate of alcohol by the human body, and
the amount of beer a person would have to
consume to have a certain percentage of alcohol
in his blood. Marx v. State, 161.Tex.Cr.R. 401,
277 S.W.2d 914."
In answer to your question three it is our opinion
based upon the foregoing cited cases by the Texas Court of
Criminal Appeals that blood tests and the testimony by any
person who can qualify as an expert may be allowed into
evidence as to the results of a blood test taken from a
defendant in a driving while intoxicated case.
In answer to your question four it is our opinion
that as we have previously stated in answer to your question
one that there is only a difference in the educational de-
gree received by a doctor of osteopathy and a medical
doctor. The license to practice medicine in this State by
either is the same and, therefore, both are equally recog-
nized by Article 4510 Vernon's Civil Statutes to have the
authority to practice medicine in this State.
..
Hon. B. Truman Ratllff Page 5 Opinion No. ``-1.163
SUMMARY
1. A Doctor of Osteopathy may serve as a
County Health Officer if he otherwise
possesses the statutory qualifications.
2. Any doctor licensed by the Texas State
Board of Medical Examiners whether he be
a County Health Officer or not, may
testify as to the results of a blood test
taken by him in the trial of a defendant
in a driving while intoxicated case.
3. The results of blood tests made by compe-
tent persons and who testifies during the
trial of a driving while intoxicated case,
are admissable in court for whatever it
may be worth.
4. There is no change in the legal significance
of a service rendered by a Doctor of
Osteopathy and a Medical Doctor.
Yours very truly,
on F. Pesek
LFP:sh ssistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Norman Suarez
H. Grady Chandler
Jack Price
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.