September 

Honorable Henry Wade 

District Attorney 

Dallas County Government 

Center 

Dallas, Texas 

Dear Mr. Wade: 

Your recent letter requests an opinion of 

this office, wherein you ask the following questions: 

"1. What is the interpretation of the 

word 'absencet as such word 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 E 9.05, 

Code of Criminal Procedure? As an 

example, situations arise where the 

father is presently In Viet Ram and 

we have been submitted the question 

of whether he is considered to be absent under this statute. 

"2. 

16, 1966 

Opinion NO. c-762 

Re: Interpretation of 

Article 49.05, Code 

of Criminal Procedure 

That last sentence of Section 1 of 

Article 49.05, Code of Criminal Procedure, states 'If two or more of the 

above-named persons ass~ume c~~%+.o.rQ nS, 

the body, 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 sentence refer to the 

entire list of individuals enumerated In the first sentence of 

the second 

E 

aragraph of Sectlon 1 

of ArtZcle 9.05, Code of Crlminal Procedure? 

b) Under this provision, if two persons (i.e., two uncles) of the 

-3666- 
Honorable Henry Wade, page 2 (c-762 ) 

deceased assume custody of the 

body while the father is available for consent to an autopsy, 

must the father still be 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: 

"Consent for a licensed physician to 

conduct an autopsy of the body of a deceased person shall be deemed sufficient 

when given by the following: In the case 

of a married person, the surviving spouse, 

or if no spouse survive him, by any child 

of such marriage, or in the event of a 

minor child of such marriage, the guardian of such child if any there be, or in 

the absence of such guardian, the court 

having jurisdiction of the person of sucn 

minor; in the event that neither spouse 

nor child survives such deceased, then permission for an autopsy shall be valid when 

given by a person who would be allowed to 

give such permission in the case of an unmarried deceased. 

"If the deceased be unmarried, then permission shall be 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 

responsibility for 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 shall be 

deemed sufficient." 

Although there are no cases defining "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 enumerated in Article 49.05, Section 

1, are living and are capable of giving consent, then consent for the autopsy must be obtained from the party uppermost on the list. Article 49.05, Section 1, Paragraph 1, 

-3667- 
Honorable Henry Wade, page 3 (C-762 ) 

provides that consent for autopsy must be 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 enumerated parties 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 

responsibility for burial of the body of such deceased. 

In answer to question 2(a), it Is the opinion 

of this office that this sentence refers only to natural 

persons assuming custody of and responsibility for burial of the body of such deceased. A “natural person” 

evidently refers 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, Paragraph 2, 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 the body, 

consent of one (1) of them shall be deemed 

sufficient”. This sentence refers only to 

natural persons assuming custody of and 

responsibility for burial of the body of 

such deceased, 

(2)(b) If two uncles of the deceased 

assume custody of the body, consent for an 

autopsy must nevertheless be obtained from 

the father if living. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

-3668- 
Honorable Henry Wade, page 4 (C-762 ) 

TWM/er 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Robert E. Owen 

Lonny F. Zwiener 

Malcolm Quick 

John Banks 

*m#~wu&g 

Assistan; Attorney General 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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