Untitled Texas Attorney General Opinion ( 1969 )

Honorable James Paul Shanks @inion No. M-427 County Attorney County Courthouse Baird, Texas Re: Whether a Justiae of the Pea,cecan order any person other than a County Health Officer or a practicing physician to take a blood sample from a body in order Dear Mr, Shanks: to ascertain cause of death You have requested our opinion concerning whether a Justice of the Peace may order any person other than a.County Health Officer or a duly licensed-and practicing physician to take a blood sample from a body in order to ascertain the eauae of death. The statute pertinent to the question Is set out as follows: Article 4g003, Vernon's Code of Criminal Procedure, as amended by House Bill MO. 1354, 61st Legislature, Regular Session, 1969: "The justlce of the peace may in all eases call in the County Health Officer, or if there be none or if his services are not then obtainable, then a duly licensed and practicing physician, and shall procure their opinions and their a.dviceon whether or not to order a,na,utopayto determine the cause of death. If UDOH~ his own determination he deems %133- Honorable Ja~mesPaul Shanks, page 2 (~-427 ) cause of death, and whether death was from natural causes or resulting from violence, and the nature and chara,cterof either of them. The county in which such a,utopsya,nd inquest is held shall pay the physician mak- ing such autopsy a fee of not more than $300, the amount to be determined by the Commis- sioners Court after a,acertalnlngthe amount a,ndnature of the work performed in making such autopsy. In those cases where a,com- plete autopsy is deemed unnecessary by the justice of the peace to a,acertalnthe cause of death, he may by proper order, order the taking of blood sa,mpleaor any other samples of fluids, body tissues or organs in order to ascertain the cause of death or whether any crime has been committed. In the case of a body of a human being whose identity is unknown, the justice of the peace may, by proper order, authorize such Investigative and laboratory tests and processes aa are required to determine the identity as well as the oause of death," (Emphasis added.) Article 49.03 should be read in light of Article &g,Ol, Vernon's Code of Criminal Procedure, as amended by Senate Bill No. 79$ 61st Legislature, Regular Session, 1969, which sets out the instancea in which an autopsy Is required and names the officers authorized to order the sa.me. If the justice of the pea.ce,or other officer authorized under Article 49.01, deems an autopsy necessary, Article 49.03 specffically authorizes him to order the County Health officer or a practicing physician trained in pathology to perform It, The statute recognizes that there may be instances where a complete autopsy la unnecessary, and in those instances .thejustice of tha peace or other authorized offieeF may order a parteal autopsy, that is, by the taking of blood samplea and other samples from the body for the purpose of determining the cause of death or whether any crime has been czommitted. As a whole, Article 49,03 dea~ls with autopsies, and regard&era of whether the autopsy ordered is complete or partial, the Legislature has provided that only County Health Qffieera and duly licensed physicians trained In pathc&``gycan be ordered to perform ft. -2134- Honorable Zamea Paul Shanks, page 3 (M-427 ) Our conclusion is that under Article 49.03 a justice of the peace or other proper offfeer may not order anyone other than a County Health Officer or a duly Ifcenaed a~ndpracticing physician trained in pathology to take a blood sample from a body In order to ascertain cause of death. SUMMARY Under Article 49.03, Vernon's Code of Criminal Procedure,as amended by House Bill No. X354, 6lst Legislature,Regular Sessionp 1969, a justice of the peace or other proper officer may not order a,ny person other than a County Health Officer or a duly licensed and practicingphysician trafwed in pathology to take a blood sample from a body 1.norder to ascertain cause of death. Prepared by Charles R, Parrett a,ndTom Needy Aesfatant Attorneys @renen%l APPROVED: OPINION CONMTJTEE Kerns TayLozroG-~&man George KePtox,,Vint~...Chairman Rick Fisher Neil Will.fams Bob Tattimo:c,,~ W, 0. Shulta -2135-