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Honorable B. Truman Ratliff OpinionNo. ~~-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 officebe filled only by a medical doctor?

2. Can an osteopath or doctor other than the countyhealth officer take a blood specimen where the results of such testwill be introduced as evidence in a trial of a driving while intoxicatedcase? 3. From the standpoint of the prosecution of a drivingwhile intoxicatedcasewhat is the validity of a so-calledblood test for intoxication takenby an osteopath or by a medical doctor? 4. In the above instances is there any change in the legal significanceof the service renderedby an osteopath rather than a medical doctor? Article 4422 ofVernon's Civil Statutesprovides as follows:

"The office of countyhealth officer shallbe filled by a competentphysician legally qualified to practice under the laws of this State and of reputableprofessional standing." Article 4423ofVernonPs Civil Statutesprovides themethod of providing for a county health officer and Article 4427 provides the duties of the countyhealth officer.Hon. B. Truman Ratliff Page 2 OpinionNo. ~~-1163

Article 4510 ofVernon's Civil Statutes provides who is to be regarded as practicingmedicine in this State.

Doctors of osteopathyare licensed in this State by the Texas State Board of Medical Examiners and come within the provisions and requirementsof Chapter 6 of Vernon's Civil Statutes, entitled, "Medicine."

Before Doctors of Osteopathy or Medical Doctors receive licenses to practicemedicine in the State of Texas theymust meet the same requirementsand pass the same examinationsand they receive the same license to practice medicine in this State.

It is,therefore,our opinion that a doctor of osteopathywho is duly licensedby the Texas State Board of Medical Examiners, and is a competentphysician, is legally qualified to fill the office of a county health officer if he possesses in addition the necessary reputable professional standingas is requiredby statute.

Your second question concernswhether a doctor of osteopathyor 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 drivingwhile 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 testwhich he has conducted to determine the alcoholic content found in the blood of a defendant. This opinion finds support in the following case: Greinerv. State, 249 S.W.2d 601 (Tex.Crim. 1952). On appeal from a conviction formurder without malice under the provisions of Article 802c ofVernon's Penal Code appellant contended,among other things, that the testimony of Doctor Packardwho testifiedduring the trial that he examined appellant after the accident and that a blood specimenwas takenunder his supervision which showed an alcoholic content in such an amount, that in his opinion the defendant was intoxicated,.wasinadmissable. The Court of Criminal Appealsheld at page 605 that:Hon. B. Truman Ratliff



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...we think the result of the OpinionNo. 

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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 thewitness Chastaine to testify as to the results of an analysismade by the Department of Public Safety of a blood sample taken from the appellant. The trial court instructed the jury that such testimonywas not offered to show that appellantwas intoxicatedbut for the purpose of showing that he had been drinking intoxicatingbeverages. The witness Chastaine did not testifybefore the jury that it was his opinion from the results of the anal,ysis that appellantwas intoxicatedbut only testifiedas to the amount of alcohol and the number of bottles of beer a person of a certainweight would have to consume in order to have the amount of alcohol found in his system.

The Court of CriminalAppealsheld at page 916:
"In view of this testimonywe perceive no error in permitting thewitness Chastaine to testify as to the result of the blood test and expresshis opinion as to the amount of alcohol or number of bottles of beer a personwould have to consume in order to have a certainpercentage 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 Appealsheld: "Contrary to appellant's contentionwe 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 

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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 itwas accurate and testifiedas to the result of the test. The witness was furtherpermitted to testifyas toHon. B. Truman Ratliff Page 

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the percentage of alcohol in the blood thatwill cause a person to be intoxicatedas establishedby tests on human beings, the percentage of alcohol in a bottle of beer and the burning rate of alcoholby the human body, and the number of bottles of beer a person would have to consume to have a certainpercentage of alcohol in his blood. It was appellant's contention that such testimonywas merely a conclusionand was hearsay.

The Court of Criminal Appealsheld:
"We find no error in permitting the testimony. The witness was shown to be an expert and as suchwas qualified to testify to the results of the analysis thathe made of the blood sample which, under the evidence,was sufficiently identified. Abrego v. State, 

### 157Tex.Cr.R. 

### 264, 248 S.W.2d 490; Greinerv. State, 

### 157Tex.Cr.R. 479, 249 S.W.2d 

### 601;and Br an v. State, 

### 157 Tex.Cr.R. 592, 252 S.W.2d 14. As an expert, 8 the witness was properlypermitted to describe the test used and testify to the percentage of alcohol in the blood necessary to render a person intoxicatedas based upon testsmade of other human beings. (Citingcases) 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 certainpercentage 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 thatblood tests and the testimonyby any person who can qualify as an expertmay be allowed into evidence as to the results of a blood test taken from a defendant in a drivingwhile intoxicatedcase.

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 educationaldegree receivedby a doctor of osteopathyand a medical doctor. The license to practicemedicine 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 practicemedicine in this State...

Hon. B. Truman Ratllff 

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LFP:sh APPROVED: SUMMARY

A Doctor of Osteopathymay serve as a County Health Officer if he otherwise possesses the statutoryqualifications. Any doctor licensedby the Texas State Board ofMedical Examinerswhether 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 drivingwhile intoxicatedcase. The results of blood testsmade by competent persons and who testifies during the trial of a drivingwhile intoxicatedcase, are admissable in court for whatever it may be worth. There is no change in the legal significance of a service renderedby a Doctor of Osteopathy and a Medical Doctor. Yours very truly,

on F. Pesek ssistantAttorney General

OPINION COMMITTEE W. V. Geppert, Chairman Norman Suarez H. Grady Chandler Jack Price REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.