E Y GENE 

Honorable B. Truman Ratliff Opinion No. ~~-2163 

County Attorney, Delta County Re: Whether an osteopath is 

Cooper, Texas qualified to hold the 

office of county health 

officer and related 

Dear Mr. Ratliff: questions. 

We are in receipt of your letter in which you asked 

for an opinion from this office concerning the following 

questions: 

1. Can an osteopath serve as a county health 

officer or can this office be filled only 

by a medical doctor? 

2. Can an osteopath or doctor other than the 

county health officer take a blood specimen 

where the results of such test will be introduced as evidence in a trial of a driving 

while intoxicated case? 

3. From the standpoint of the prosecution of 

a driving while intoxicated case what is 

the validity of a so-called blood test 

for intoxication taken by an osteopath or 

by a medical doctor? 

4. In the above instances is there any change 

in the legal significance of the service 

rendered by an osteopath rather than a 

medical doctor? 

Article 4422 of Vernon's Civil Statutes provides as 

follows: 

"The office of county health officer shall be 

filled by a competent physician legally qualified to practice under the laws of this State 

and of reputable professional standing." 

Article 4423 of VernonPs Civil Statutes provides 

the method of providing for a county health officer and 

Article 4427 provides the duties of the county health 

officer. 
Hon. B. Truman Ratliff Page 2 Opinion No. ~~-1163 

Article 4510 of Vernon's Civil Statutes provides 

who is to be regarded as practicing medicine in this State. 

Doctors of osteopathy are licensed in this State 

by the Texas State Board of Medical Examiners and come 

within the provisions and requirements of Chapter 6 of 

Vernon's Civil Statutes, entitled, "Medicine." 

Before Doctors of Osteopathy or Medical Doctors receive licenses to practice medicine in the State of Texas 

they must meet the same requirements and pass the same 

examinations and they receive the same license to practice 

medicine in this State. 

It is,therefore, our opinion that a doctor of 

osteopathy who is duly licensed by the Texas State Board 

of Medical Examiners, and is a competent physician, is 

legally qualified to fill the office of a county health 

officer if he possesses in addition the necessary reputable 

professional standing as is required by statute. 

Your second question concerns whether a doctor of 

osteopathy or a medical doctor other than the county health 

officer, who takes a blood specimen for the purpose of 

determining the alcoholic content, can testify as to the 

results of such test at the trial of a defendant in a 

driving while intoxicated case. 

It is our opinion that either a doctor of osteopathy 

or a medical doctor can testify concerning the results of 

a blood alcohol test which he has conducted to determine 

the alcoholic content found in the blood of a defendant. 

This opinion finds support in the following case: 

Greiner v. State, 249 S.W.2d 601 (Tex. Crim. 1952). 

On appeal from a conviction for murder without 

malice under the provisions of Article 802c of Vernon's 

Penal Code appellant contended, among other things, that 

the testimony of Doctor Packard who testified during the 

trial that he examined appellant after the accident and 

that a blood specimen was taken under his supervision 

which showed an alcoholic content in such an amount, that 

in his opinion the defendant was intoxicated,.was inadmissable. 

The Court of Criminal Appeals held at page 605 that: 
Hon. B. Truman Ratliff 

11 

Page 3 

. . . we think the result of the 

Opinion No. w-1163 

test ,was.. 

admissible for whatever it may be worth." 

In the case of Marx v. State,277 S.W.2d 914 (Tex. Crim. 

1955) appellant insisted that the court erred in permitting 

the witness Chastaine to testify as to the results of an 

analysis made by the Department of Public Safety of a blood 

sample taken from the appellant. The trial court instructed 

the jury that such testimony was not offered to show that 

appellant was intoxicated but for the purpose of showing 

that he had been drinking intoxicating beverages. The 

witness Chastaine did not testify before the jury that it 

was his opinion from the results of the anal,ysis that 

appellant was intoxicated but only testified as to the 

amount of alcohol and the number of bottles of beer a person of a certain weight would have to consume in order to 

have the amount of alcohol found in his system. 

The Court of Criminal Appeals held at page 916: 

"In view of this testimony we perceive no 

error in permitting the witness Chastaine to 

testify as to the result of the blood test 

and express his opinion as to the amount of 

alcohol or number of bottles of beer a person would have to consume in order to have a 

certain percentage of alcohol in his blood." 

In Sandel v. State, 253 S.W.2d 283 (Tex. Crim. 1952) 

appellant complained on appeal of the introduction of 

testimony regarding the taking of a blood test and the 

results thereof. 

The Court of Criminal Appeals held: 

"Contrary to appellant's contention we have 

held that such testimony is admissable. See 

Brown v. State, Tex. Cr. App., 240 S.W.2d 

310; Heath v. State, Tex. Cr. App., 244 S.W.2d 

ap5.f' 

In Ritchie v. State, 296 S.W.2d 551 (Tex. Crim. 1956) 

aanellant objected to the testimonv of J. D. Chastain, a 

Chemist and Toxicologist of the Texas Department of Public 

Safety concerning the analysis of the blood sample taken 

from the appellant. The witness was permitted to describe 

the test used in analyzing the blood sample, testified 

that it was accurate and testified as to the result of the 

test. The witness was further permitted to testify as to 
Hon. B. Truman Ratliff Page 4 Opinion No. ~~-1163 

the percentage of alcohol in the blood that will cause a 

person to be intoxicated as established by tests on human 

beings, the percentage of alcohol in a bottle of beer and 

the burning rate of alcohol by the human body, and the 

number of bottles of beer a person would have to consume 

to have a certain percentage of alcohol in his blood. It 

was appellant's contention that such testimony was merely 

a conclusion and was hearsay. 

The Court of Criminal Appeals held: 

"We find no error in permitting the testimony. 

The witness was shown to be an expert and as 

such was qualified to testify to the results of 

the analysis that he made of the blood sample 

which, under the evidence, was sufficiently 

identified. Abrego v. State, 157 Tex.Cr.R. 264, 

248 S.W.2d 490; Greiner v. State, 157 Tex.Cr.R. 

479, 249 S.W.2d 601; and Br an v. State, 157 

Tex.Cr.R. 592, 252 S.W.2d 14. 8 As an expert, 

the witness was properly permitted to describe 

the test used and testify to the percentage of 

alcohol in the blood necessary to render a person intoxicated as based upon tests made of 

other human beings. (Citing cases) The witness 

was further qualified to testify to the percentage of alcohol in a bottle of beer, the 

burning rate of alcohol by the human body, and 

the amount of beer a person would have to 

consume to have a certain percentage of alcohol 

in his blood. Marx v. State, 161. Tex.Cr.R. 401, 

277 S.W.2d 914." 

In answer to your question three it is our opinion 

based upon the foregoing cited cases by the Texas Court of 

Criminal Appeals that blood tests and the testimony by any 

person who can qualify as an expert may be allowed into 

evidence as to the results of a blood test taken from a 

defendant in a driving while intoxicated case. 

In answer to your question four it is our opinion 

that as we have previously stated in answer to your question 

one that there is only a difference in the educational degree received by a doctor of osteopathy and a medical 

doctor. The license to practice medicine in this State by 

either is the same and, therefore, both are equally recognized by Article 4510 Vernon's Civil Statutes to have the 

authority to practice medicine in this State. 
. . 

Hon. B. Truman Ratllff Page 5 Opinion No. ~~-1.163 

1. 

2. 

3. 

4. 

LFP:sh 

APPROVED: 

SUMMARY 

A Doctor of Osteopathy may serve as a 

County Health Officer if he otherwise 

possesses the statutory qualifications. 

Any doctor licensed by the Texas State 

Board of Medical Examiners whether he be 

a County Health Officer or not, may 

testify as to the results of a blood test 

taken by him in the trial of a defendant 

in a driving while intoxicated case. 

The results of blood tests made by competent persons and who testifies during the 

trial of a driving while intoxicated case, 

are admissable in court for whatever it 

may be worth. 

There is no change in the legal significance 

of a service rendered by a Doctor of 

Osteopathy and a Medical Doctor. 

Yours very truly, 

on F. Pesek 

ssistant Attorney General 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Norman Suarez 

H. Grady Chandler 

Jack Price 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.