Honorable James Paul Shanks @inion No. M-427

County Attorney County Courthouse Baird, Texas

Dear Mr, Shanks: Re: Whether a Justiae of the Pea,ce can order any person other than a County Health Officer or a practicing physician to take a blood sample from a body in order 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 take a blood sample
eauae of death. duly licensed-and practicing physician to from a body in order to ascertain the

The statute follows: pertinent to the question Is set out as

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.dvice on 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,cter of either of them. The county in which such a,utopsy a,nd inquest is held shall pay the physician making such autopsy a fee of not more than $300, the amount to be determined by the Commissioners Court after a,acertalnlng the amount a,nd nature of the work performed in making such autopsy. In those cases where a,complete 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,mplea or 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&~~gy can be ordered to perform ft.

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### HonorableZamea Paul Shanks,page 3 

### (M-427 )

Our conclusionis thatunderArticle49.03a justiceof the peace or otherproperofffeermay not orderanyone other 

### thana CountyHealthOfficeror a duly Ifcenaeda~nd

practicingphysiciantrainedin pathologyto takea blood samplefrom a body In order to ascertaincause of death.

SUMMARY

UnderArticle49.03,Vernon'sCode of CriminalProcedure,as amendedby House Bill 

### No. X354, 6lst 

### Legislature, Regular Session p 1969, 

### a justiceof the peace or otherproperofficermay not ordera,ny personother than a CountyHealthOfficer
or a duly licensedand practicingphysician trafwedin pathologyto takea blood sample from a body 1.n

order to ascertaincauseof death.

Preparedby CharlesR, Parrett a,nd Tom Needy AesfatantAttorneys@renen%l

APPROVED: OPINIONCONMTJTEE

Kerns TayLozro

G-~&man GeorgeKePtox,,

Vint~...Chairman Rick Fisher NeilWill.fams Bob Tattimo:c,,~ W, 0. Shulta

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