September

Honorable Henry Wade District Attorney Dallas County Government Center Dallas, Texas
Dear Mr. Wade:

Your recent letterrequestsan opinion of this office,whereinyou ask the followingquestions:

"1. What is the interpretationof the word 'absencetas suchword is contained in the phrase 'and in the absence of any of the foregoing'which phrase is found in the second aragraph of Section 1 of Article E9.05, Code of Criminal Procedure? As an example, situationsarise where the father is presently InViet Ram and we have been submitted the question of whetherhe is considered to be absent under this statute. "2. 16, 1966
OpinionNO. c-762
Re: Interpretationof Article 49.05, Code of Criminal Procedure

That last sentence of Section 1 of Article 49.05, Code of Criminal Procedure, states 'Iftwo or more of the above-namedpersons ass~ume c~~%+.o.rQ

nS, thebody, consent of one of them shall be deemed sufficient.' In regard to this sentence,we submit the following two questions concerning its interpretation. a) Does this sentencerefer to the entire list of individuals enumerated In the first sentence of the secondEaragraph of Sectlon 1 of ArtZcle 9.05, Code of Crlminal Procedure? b) Under this provision, if two persons (i.e., two uncles) of the

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deceasedassume custody of the body while the father is available for consent to an autopsy, must the father stillbe the one to consent or is consent of one of the uncles deemed sufficient?" Article 49.05, Section 1,Vernon's Code of Criminal Procedure,provides as follows:

"Consentfor a licensedphysician to conduct an autopsy of thebody of a deceasedperson shallbe deemed sufficient when given by the following: In the case of a married person, the surviving spouse, or if no spouse survivehim, by any child of such marriage,or in the event of a minor child of suchmarriage, the guardian of such child if any therebe, or in the absence of such guardian, the court having jurisdictionof the person of sucn minor; in the event that neither spouse nor child survives such deceased, then permission for an autopsy shallbe valid when given by a personwho would be allowed to give such permission in the case of an unmarrieddeceased. "If the deceasedbe unmarried, thenpermission shallbe given by the following for such autopsy, in the order stated: father, mother, guardian, or next of kin, and in the absence of any of the foregoing,by any natural person assuming custody of and responsibilityfor burial of the body of such deceased, If two (2) or more of the above named persons assume custody of the body, consent of one (1) of them shallbe deemed sufficient." Although there are no casesdefining "absence" as that term 2s used in Article 49.05,Vernon's Code of Criminal Procedure,it is the opinion of this office that the word "absence",as used therein,means "non-existent". If any of the parties enumeratedin Article 49.05, Section 1, are livingand are capable of giving consent, then consent for the autopsymust be obtained from the party uppermost on the list. Article 49.05, Section 1, Paragraph 1, -3667-Honorable HenryWade, page 3 (C-762 )

provides that consent for autopsy mustbe obtained from the spouse, if the spouse survives. Paragraph 2 must be given the same construction. If the father of the deceased is living, then he alone can give consent to an autopsy. If all of the enumeratedparties are deceased or presumed to be dead under the provisions of Article 5541,Vernon’s Civil Statutes, then consent may be obtalned from a natural person assuming custody of and responsibilityforburial of the body of such deceased.

In answer to question 2(a), it Is the opinion of this office that this sentencerefers only to natural persons assuming custody of and responsibilityforburial of thebody of such deceased. A “naturalperson” evidentlyrefers to any person other than those enumerated. In answer to question 2(b), it is the opinion of this office that the father, if living,must give consent for the autopsy, regardless of whom assumes custody of the body.

SUMMARY

(1) The term “absence”as used In Article 49.05, Code of Criminal Procedure,Section 1, Paragraph2, means “non-existent”. (2)(a) The last sentence of Section 1 of Article 49.05, Code of Criminal Procedure, states: "If two (2) or more of the above named persons assume custody of thebody, consent of one (1) of them shallbe deemed sufficient”. This sentencerefers only to natural persons assuming custody of and responsibilityfor burial of thebody of such deceased, (2)(b) If two uncles of the deceased assume custody of thebody, consent for an autopsy must neverthelessbe obtained from the father if living.
Yours very truly,
WAGGONER CARR Attorney General of Texas

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TWM/er
APPROVED:
OPINION COMMITTEE W. V. Geppert,Chairman Robert E. Owen Lonny F. Zwiener Malcolm Quick John Banks 

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Assistan;Attorney General

APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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