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,n a,utopay to determine the cause of 

death. If UDOH~ his own determination he deems 

%133- 
Honorable Ja~mes Paul 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,acertaln the 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 .the justice 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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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~nd practicing 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 

Session p 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 practicing physician 

trafwed in pathology to take a blood sample 

from a body 1.n order to ascertain cause of 

death. 

Prepared by Charles R, Parrett 

a,nd Tom Needy 

Aesfatant Attorneys @renen%l 

APPROVED: 

OPINION CONMTJTEE 

Kerns TayLozro G-~&man 

George KePtox,, Vint~...Chairman 

Rick Fisher 

Neil Will.fams 

Bob Tattimo:c,,~ 

W, 0. Shulta 

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