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HonorableW. G. Woods, Jr. DistrictAttorney 75th JudicialDistrict P.O. Box 431 Liberty, Texas 77575 *7 Opinion No. M-425 ., Re: Certain questions concerning the ordering, transportation, making and payment.of and for autopsies in counties not having a coronerand not coming within the provisions of Article 49.25,C.C.P., relating to medical examiners.
DearMr. Woods:

Your recent request to this office for an opinion reads as follows:

"Please furnish this office with an opinion as to the followingquestions concerning the ordering,.transportation,making and payment of and for autopsies. Each question is prefacedwith the understandingthat 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 inquestwithin 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 autopsywhich has been ordered by a Justice of the Peace acting as a coroner in connectionwith an inquest?

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“3. In the event the secondquestion is answered in the negative, then is the ,amount of the fee for a physicianmaking an autopsy ordered by a Justice of the Peace in connection with an inquestwithin 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 commissionerscourt legallypay the reasonableand customary charge for transporting a deceased human body to an adjacent county for the purpose of performing an autopsy properly orderedwhen 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 underArticle 49.01,~Codeof Criminal Procedure, as amended by S.B. No. 779,Acts 61st Legislature,Regular Session, 1969, under the followingcircumstances:

"1

. When a person dies in prison or in jail; "2. When any person is killed, or from any cause dies an unnaturaldeath, except under sentenceof 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 circumstancesof his death are unknown:
"4

. When the circumstancesof the death of any person are such as to lead to suspicion that he came to his death by unlawfulmeans;
"5

. When any person commits suicide,or the circumstancesof his death are such as to lead to suspicionthat he committed suicide;
"6

. When a person dies without having been attendedby a duly licensedand practicingphysician, and the localhealth officeror registrar required to report the cause of death under Rule 41a, SanitaryCode of Texas, Article 4477, Revised Civil Statutes,General Laws, 46th Legislature, 1939, page 343, does not know the cause of

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death. When the local health officer or registrar of vital statisticswhose duty it is to certify the cause of death does not know the cause of death, he shall so notify the justiceof 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 certifywith certainty the cause of death as requiredby 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 attendingphysician or physicians, or the superintendentor generalmanager of the hospital or institution inwhich the deceased shallhave 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 thisArticle shall be held by the justice of the peace of the precinct in which the death occurred, but in event the justiceof the peace of such precinct is unavailable,or shall fail or refuse to act, then such inquest shall be conductedby 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 peacema 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 shallprocure their opinions and their advice on whether or not to order

to determine the cause of death. own determinationhe deems **an**

the justice of the peace
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shall,by proper order, request the County Health Officer, or if there .benone or if it be impracticableto secure his service, then some duly licensedand practicing physicianwho is trained'inpathology to make **an** autopsy in order to determine the cause of death, and whether deathwas 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 notmore than $300, the amount to be determined by the CommissionersCourt after ascertaining the smount and nature of the work performed in making such autopsy. In those caseswhere a oomplete autopsy is deemed unnecessaryby the justice of the peace to ascsrtai;n the ,.~ cause of death, he may by proper order, **order** the taking of blood samplesor any other samples of fluids,body tissues or organs in order to ascertain the cause of d,eathor whether any crime has been committed. ,In the case of a body of a human being :whose identity is unknown, the justiceofthe peace rnx, by proper order, authorizesuch investigative and laboratorytests and processes as are required to determine the identity as well as the cause of death." (Emphasisadded.) 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 forwhich this authority may be lawfullyexercised is the detection of crime. Aetna Casualty and-SuretyCompany 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 connectionwith the inquest and if he holds an inquest,he must make a written record **thereof.** Aetna Life InsuranceCompany v. Love, 149 S.W.Zd 1071 (Tex.Civ.App.1941, error dismissed, judgment correct);Article 49.13, C.C.P. -2127-

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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 themaximum fee to $300.00 for the pay of a duly licensedpracticingphysicianwho performs an autopsy. However, the commissioners'court is given authority to determine the reasonableamount of the fee to be paid, based upon the work performedby 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 autopsywhich 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 physicianperforming the autopsy after ascertaining the amount and nature of the work perfonned~inmaking such autopsy. This determination iswithin the sole discretion of the Commissioners'Court, and, being a judicial function,may be revised, if at all, by appeal or other appropriateproceeding. 15 Tex.Jur.Zd 381, Counties 6164.

your fourthquestion inquires about the payment of charges for transportinga 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 expresslyprovided in Article 49.03 that the county in which the autopsy and inquest is held shallpay the fee of the physicianperforming the autopsy. you are thereforeadvised 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, 137Tax. 201, 152 S.W.Zd 1094 (1941). SUMMARY
A justice of the peace **or** other officer authorizedby Article 49.01,C.C.P., has the sole discretion to have an autopsyperformed in
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connectionwith an inquest. Moreovt$r,the Commissioners'Court is obligated to pay a reasonable fee not to exceed $300.00dollars and it can not pay for transportinga body to another county fbr au opsy purposes. /f

Prepared by Robert Darden AssistantAttorney General
APPROVED: OPINION COMMITTEE w. 0. Shults, Chairman
Z. T. Fortescue Scott Garrison Bill Corbusier Jim Swearingen
HAWTHORNEPHILLIPS ExecutiveAssistant

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