--_"-.1 

:rrIHlE A'T"'I"ORNEY GENERAL 

0111" ~"'EXAS 

sonorabJ.:e 1[. 1[. Smith 

Oounty Atterney 

Oarson County 

1'anhand1e I Texas 

De~r Sir: 

AUSTIN 1.1., TEXAI!it 

Opinion Bo". 0-6640 

175 

:Bel ' Author1tyof oounty judge or oth,r 

offioers other than Justices of the 

peace ~o hold inquests. , 

from your letter of reoe~t aste we are apprised, that in your oounty at 

this time "you hav~ no legeU:! Ilu.sl!f!_ sud ~v8ilable ~ustic~~ of ~he 

peace. Y9u submit the followd.ng questions (as, restated by us) s 

. ',' , I .• ' ', •. , 

1. Where there is no quslified ~ustioe ". or ,'\Ihe pea 0, , 

and it beoolles necessary to ho14 an' 1D.tuest" ~.n the . oounty judge perform this funot1~nt ' 

2. If the county judge would not be a'uthorh,d to ':1 

hold an intuest uncler such oircumatslloeaaa . ' 

reterred tom ques~ionl,whst oth$roff1cer, if 

any, would .be authorized. to hold 'the tilquestt 

ll!i,tle l~ of 'tme Code ot Criminal ProoedUl'e of Texa. (.A:rt101e8 968-

996) is the authority for the b,01d1ng of mquests in this Stat., 

both over dead bodies to determine the cause of 4eath and ~ afire 

inquests" to e;xam~e into the unlawful firing of bl.UU.dinga. 

In every 1utanCl)e in. Said Title 13 where reference 1& made as to the 

!:diVidual holding such inquests it is a "justice of the peao .n 

~ the reference fa not gene~al - it is speeifio. JOr ' j,nstance, in 

~e verY' first article is 811i4 'itle, providiJ?g, Vb.en inquests over 

Bad bodiee are to be held, the lamguage l"eads I .. A11'3' Juetice ot the 

~t~C.! shall be authorized:, and it shall be ~ ~uty to hold inquests 

hout e jUry wi thin his oounty," etc. So on through the suoceeding 

:h;lales re~tive to ~d1sinterm~t of bodies, the oalling in of" 

a Sioiaus, the facts upon whioh the offioer may aot., the issuanoe 

o~d servioe of prooess, the pre8ervat1~ of te.t1mo~, the keep1ng 

6'1'\ recortis 8n,.d the oe:r:t1fioat10n of pl"0oeedtnga, the person aot1ng 1s 

s.lfeaif1ed es" the Justice", "a Justioe'l 01' "justices of' the peaoe." 

)0 as to fire inquests - ~en an affidavit 1s made by e oredible 

arson before any ~ustice of the peaoe," etc. 
176 

Honorable H. H. Smith - page #2 (0-6640) 

No other officer is mentioned in any article of the Code 8S being 

authorized, required, or permitted to serve in the capacity of the 

justice of the peace in holding inquests.; nor is provision made 

for substitution of any other officer to perform such duties. 

The object of the statute providing for inquests is to aid in the 

enforcement of the law by the the detection of crime, and in each 

case, to determine whether an offense has been committed. This is 

the sale purpose. Polk County v. Phillips, 92 Tex. 630, 51 S. w. 328. 

The authority of a justice of the peace to hold an ~quest is derived 

exclusively from the provisione of the Code of Criminal Procedure we 

hBve mentioned. The acts of the jUstice in such cases ~re official 

acts. When a justice of the peace performs official duties in connectioll 

ther'ewith, his allthority faows from the statutes and must be in conformity with the statutory regulations. See Aetna Casualty & Surety 

Company v. Love (Tex. Comm. 'App., opinion adopted by Supreme Court) 132 

Tex. 280, 121 S. W. 2d 986. 

We have carefully examined constitutional and statutll>ry provisions 

relating to the office of county juQ,ge. Now here do We find provisions 

for his acting in the c8'pac1ty of a coroner to hold inquests. Nor do 

we know of any provision for any ' other officer to exercise the 

prerogatives and to perform the duties imposed by law' iri this respect. 

Justices of the peace alone appear ,to have the duty, right, power and 

authority to preside at inquests. 

In Texas Jurisprudence (34 Tex.~Jur. 439, 440) appear statements, amply 

sllPported by cited authorities, \rhich we deem applicable to your questtons 

we quote: 

"* * * Power and d~ties are coextensive, and an officer 

has no authority to perform an act in respect of which no 

duty has been made to devolve upon him. 

"* * * 

"Public officers * * * possess enl.y such powell'S as are 

expressly conferred upon them by law or are necessarily 

ipWlied from the powers so conferred. They cannot 

perf@rm acts net authorized by existing law) and the 

repeal of a statute a~thorizing an officer to do a 

particular thing, or of the statute that creates the 

office, necessarily revokes and terminates his power. It 

(Emphasis supplied) 

Therefore, we answer both of your questi<;>n8 in the negative. 
Honorable H. H. Smith - page #3 (0-6640) 

In the state of affairs existing in your county, the only solution,we 

are able to offer is to direct your attention to the fact that ample 

authority exists for the filling of the vacancies in the several offices 

of your justices of the peace. See Article 5, Sec. 28, Constitution of 

Texas s "'IE' * * vacancies in the office of County Judge and justices if the 

peace shall be filled by the Commissioners Court until the next general 

election for such offices." See also, Article 2355, Revised Civil 

Statutes, which prescribes the method of filling the vacancies. 

:m:za./ldW 

APPROVED JON 27, 1945 

s/ Grover Sellers .. 

A~ORNEY GENERAL· OF TEXAS 

APPROVED 

. OPINION 

COMMITrEE 

BY B. W. B. 

CHAIRMAN 

Yours very truly 

A~ORNEY GENERAL OF TEXAS 

s/ :aenjamin Wooda 11 

By 

Benjamin W ooda 11 

Assistant 

'-. 

,