. . 

Honorable W. G. Woods, Jr. 

District Attorney 

75th Judicial District 

P.O. Box 431 

Liberty, Texas 77575 

Opinion No. *7 M-425 ., 

Re: Certain questions concerning 

the ordering, transportation, 

making and payment.of and 

for autopsies in counties not 

having a coroner and not 

coming within the provisions 

of Article 49.25, C.C.P., 

relating to medical examiners. 

Dear Mr. Woods: 

Your recent request to this office for an opinion 

reads as follows: 

"Please furnish this office with an opinion 

as to the following questions concerning the 

ordering,.transportation, making and payment 

of and for autopsies. Each question is prefaced with the understanding that the county 

does not have a coroner nor does it come within the provisions of Art. 49.25, Code of 

Criminal Procedure, relating to medical examiners in certain counties: 

"1. Is the decision as to whether an 

autopsy is to be performed in connection 

with an inquest within the sole descretion 

of Justices of the Peace acting as coroners? 

"2. In the event the first question is 

answered in the affirmative, then can a 

commissioners' court legally refuse to pay 

a pathologist for his services in performing 

an autopsy which has been ordered by a 

Justice of the Peace acting as a coroner 

in connection with an inquest? 

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Honorable W. G. Woods, Jr., Page 2, (M-429 

“3. In the event the second question is 

answered in the negative, then is the ,amount 

of the fee for a physician making an autopsy 

ordered by a Justice of the Peace in connection 

with an inquest within the sole descretion of 

the commissioners' court and not subject to 

review or appeal for being arbitrary and/or 

unreasonable, so long as such fee is not more 

than $lOO.OO? 

"4 . Can a commissioners court legally pay 

the reasonable and customary charge for transporting a deceased human body to an adjacent 

county for the purpose of performing an autopsy 

properly ordered when there is no pathologist 

in the county where the person dies or the 

body is found, and if so, can they legally 

refuse to pay such charges?" 

A Justice of the Peace has the duty to hold an 

inquest under Article 49.01,~Code of Criminal Procedure, 

as amended by S.B. No. 779, Acts 61st Legislature, Regular 

Session, 1969, under the following circumstances: 

" 1 . When a person dies in prison or in jail; 

"2. When any person is killed, or from any 

cause dies an unnatural death, except under 

sentence of the law; or dies in the absence 

of one or more good witnesses: 

"3. When the body of a human being is found, 

and the circumstances of his death are unknown: 

" 4 . When the circumstances of the death of 

any person are such as to lead to suspicion 

that he came to his death by unlawful means; 

" 5 . When any person commits suicide, or the 

circumstances of his death are such as to lead 

to suspicion that he committed suicide; 

" 6 . When a person dies without having been 

attended by a duly licensed and practicing physician, 

and the local health officer or registrar required 

to report the cause of death under Rule 41a, 

Sanitary Code of Texas, Article 4477, Revised 

Civil Statutes, General Laws, 46th Legislature, 

1939, page 343, does not know the cause of 

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Honorable W. G. Woods, Jr., Page 3, (M- 425) 

death. When the local health officer or 

registrar of vital statistics whose duty 

it is to certify the cause of death does 

not know the cause of death, he shall so 

notify the justice of the peace of the precinct in which the death occurred and request an inquest; 

"7. When a person dies who has been attended 

by a duly licensed and practicing physician 

or physicians, and such physician or physicians 

are not certain as the cause of death and are 

unable to certify with certainty the cause of 

death as required by Rule 40a, Sanitary Code 

of Texas, Article 4477, Revised Civil Statutes, 

Chapter 41, Acts, First Called Session, 40th 

Legislature, 1927, page 116. In case of such 

uncertainty the attending physician or physicians, 

or the superintendent or general manager of the 

hospital or institution in which the deceased 

shall have died, shall so report to the justice 

of the peace of the precinct in which the 

death occurred, and request an inquest. 

"The inquests authorized and required by 

this Article shall be held by the justice of 

the peace of the precinct in which the death 

occurred, but in event the justice of the peace 

of such precinct is unavailable, or shall fail 

or refuse to act, then such inquest shall be 

conducted by the nearest available justice of 

the peace, corporation court judge, county 

judge or judge of the county court at law of 

the county in which the death occurred." 

Article 49.03, Code of Criminal Procedure, as 

amended by H.B. No. 1354, 61st Legislature, Regular Session, 

1969, reads as follows: 

"The justice of the peace ma in all cases 

call in the county health Of d- cer, 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 advice on whether or not to order 

to determine the cause of death. 

own determination he deems an 

the justice of the peace 

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, . 

Honorable W. G. Woods, Jr., Page 4, (M-425) 

shall, by proper order, request the County 

Health Officer, or if there .be none or if 

it be impracticable to secure his service, 

then some duly licensed and practicing 

physician who is trained'in pathology to 

make an autopsy in order to determine the 

cause of death, and whether death was from 

natural causes or resulting from violence, 

and the nature and character of either of 

them. The county in which such autopsy 

and 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 ascertaining the 

smount and nature of the work performed in 

making such autopsy. In those cases where 

a oomplete autopsy is deemed unnecessary by 

the justice of the peace to ,.~ ascsrtai;n the 

cause of death, he may by proper order, order 

the taking of blood samples or any other 

samples of fluids, body tissues or organs in 

order to ascertain the cause of d,eath or 

whether any crime has been committed. ,In 

the case of a body of a human being :whose 

identity is unknown, the justice ofthe peace 

rnx, by proper order, authorize such investigative and laboratory tests and processes as 

are required to determine the identity as 

well as the cause of death." (Emphasis added.) 

The final decision as to whether an autopsy shall 

be ordered is within the discretion of the Justice of the 

Peace or other officers authorized to act under Section 7 

of Article 49.01, Code of Criminal Procedure. Attorney 

General's Opinions V-365 (1947), WW-1261 (1962), O-4699: 

(1942), and M-379' (1969). 

The authority to order an autopsy is derived excluaively from the statute, and the sole purpose for which 

this authority may be lawfully exercised is the detection 

of crime. Aetna Casualty and-Surety Company v. Love, 132 

Tax. 280, 121 S.W.Zd 986 (1938).' 

A Justice of the Peace has no authority to order 

an autopsy except in connection with the inquest and if 

he holds an inquest, he must make a written record 

thereof. Aetna Life Insurance Company v. Love, 149 

S.W.Zd 1071 (Tex.Civ.App. 1941, error dismissed, judgment correct); Article 49.13, C.C.P. 

-2127- 

.., 
Honorable W. G. Woods, Jr., Page 5, (M-425) 

We answer your first question, therefore, that a 

justice of the peace or other officer authorized in his 

absense, has the exclusive authority to order an autopsy 

subject to the foregoing statutory limitations. 

In answer to the second question, Art. 49.03, 

limits the maximum fee to $300.00 for the pay of a duly 

licensed practicing physician who performs an autopsy. 

However, the commissioners' court is given authority to 

determine the reasonable amount of the fee to be paid, 

based upon the work performed by the physician and within 

the limit of $300.00. Therefore, the Commissioners' 

Court cannot legally refuse to pay a pathologist for his 

services in performing an autopsy which has been properly 

ordered by the Justice of the Peace. However, in no case 

shall the payment for such services exceed $300.00. 

In answer to your third question, the Commissioners' 

Court shall determine the amount of the fee to be paid 

to the physician performing the autopsy after ascertaining 

the amount and nature of the work perfonned~in making 

such autopsy. This determination is within the sole 

discretion of the Commissioners' Court, and, being a 

judicial function, may be revised, if at all, by appeal 

or other appropriate proceeding. 15 Tex.Jur.Zd 381, 

Counties 6164. 

your fourth question inquires about the payment 

of charges for transporting a body to an adjacent county 

for the performance of an autopsy. We have carefully 

considered the provisions of the Code of Criminal Procedure relating to inquests and autopsies and are of the 

opinion that they do not authorize that an autopsy be 

performed in a county other than that in which death 

occurred. In fact it is expressly provided in Article 

49.03 that the county in which the autopsy and inquest 

is held shall pay the fee of the physician performing 

the autopsy. you are therefore advised that a Commissioners' 

Court cannot pay for transporting a body to another county 

for autopsy purposes. See Canales v. Laughlin, 147 Tex. 

169, 214 S.W.Zd 451 (1948); Anderson v. Wood, 137 Tax. 

201, 152 S.W.Zd 1094 (1941). 

SUMMARY 

A justice of the peace or other officer 

authorized by Article 49.01, C.C.P., has the 

sole discretion to have an autopsy performed in 

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. * 

Honorable W. G. Woods, Jr., Page 6, (M-425) 

connection with an inquest. Moreovt$r, the 

Commissioners' Court is obligated to pay a 

reasonable fee not to exceed $300.00 dollars 

and it can not pay for transporting a body 

to another county fbr au opsy purposes. 

/f 

Prepared by Robert Darden 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

w. 0. Shults, Chairman 

Z. T. Fortescue 

Scott Garrison 

Bill Corbusier 

Jim Swearingen 

HAWTHORNE PHILLIPS 

Executive Assistant 

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