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### THE 

## A~XM~NEY GENERAL OF -XAS
AUSTIN. TRXAH W&711 April17,1972
Honorable Oscar 8. McInnis Criminal DistrictAttorney Hidalgo **County** Courthouse Edinburg, **Texas** 78539

Dear Mr. Mclnnisr Opinion No. M-1119 Re: Authority of the the Justice of Peace to order the removal of a finger from a deceasedperson for thepurpose of determining the identity of suchperson under Article,49.03,Code of Criminal Procedure, and related questions. Your recant request to this office for an opinion reads as follows:

”1
. Whether the Justice of'the Peace may by proper order, authorize the removal of a finger from a deceasedperson for the purpose of determining the identificationof suchperson? "2
. Whether the Justice of the Peacemay order and authorize any person other than a County Health Officer or a duly licensed and practicing physician trained in pathology to remove such a finger from such deceasedperson for the purpose of determining identification of such deceased person? "3
. Whether the Justice of the Peace may by proper order authorize a Peace Officer,who is specially trained in identificationwork, to remove a finger from a deceasedperson for the purpose of determining identificationof such deceased person?" The statutepertinent to the question is set out as fo,llows: Article 49.03, Code of Criminal Procedure, as amendedby

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Honorable Oscar B. McInnis, Page 2 (M-1119)

House Bill No. 1354, 61st Legislature,Regular Session (1969) reads as follows:

"The justice of the peace may in all cases call in the County Health Officer, or if therebe none or if his services are not then obtainable, then a duly licensed and,practicingphysician, and shall procure their opinions and their advice on whether or not to order an autopsy to determine the cause of death. If upon his own determinationhe deems an autopsynecessary, the justiceof the peace shall, by proper order, request the County Health Officer, or if there be none or if it be impracticableto securehis service, then **some** duly licensed and practicingphysicianwho is trained inpathology to make an autopsy in order to determine the cause of death, and whether death was 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,shallpay the physicianmaking such autopsy a fee of not more than $300, the amount tobe determinedby the Commissioners Court after ascertainingthe amount and nature of the work performed in making such autopsy. In those **cases** where a complete autopsy is deemed unnecessaryby the justice of the peace to ascertain the cause of death, he may by proper order, order the taking of blood samples or any other samples of fluids,body tissues or organs in order to ascertain the cause of death or whether anv crime has been committed. In the case of a boa> of a human being whose identity is unknown, the justice of the peace may, by proper order, authorize such investigative and laboratory tests andprocesses as are required to determine the identity as well as the cause of death." (Emphasisadded). InAttorney General's Opinion No. M-425 (1969),this office ruled that the authority to order an autopsy is derived exclusively from the statute. Under the last sentence of Article 49.03,Code of Criminal Procedure, the Justice of the Peace has the authority to order

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investigativeand laboratorytests andprocesses as are required to determine the identityof a body in the samemanner as in ascertaining the cause of death. We answeryour first question, therefore, that a Justice of the Peace, or other officer authorized in his absence,has the authority to order the removal of a finger from a deceased person for thepurpose of determining identificationof such person. In answer to the second question,Article 49.03 limits a Justice of the Peace or other proper officer to authorize only a County Health Officer or a duly licensed andpracticing physician trained in pathology to.make an autopsy. Attorney General's OpinionNo. M-427 (1969). Therefore, the Justice of the Peace may authorize only a County Health Officer or a duly licensed andpracticing physician trained inpathology to remove such finger for the purpose of determining identification of such deceased person. Our answer toyour second question requiresyour third question to be answered,in the negative. Our conclusion is .thatunderArticle 49.03 a Justice of the Peace **or** any other officermay not order anyone other than a County Health Officer or a duly licensed andpr,acticing.physician trained inpathology to take a finger from a,bocly,in order to ascertain the identity. However, the Justice of the Peace can order a peace officer or any other specially trained person in identificationwork to complete tests for identificationpurposes. SUMMARY ------- UnderArticle 49.03,Vernon's Code of Criminal Procedure, as **amended** by House Bill No. 1354, 61st Legislature,Regular Session (19691,a Justice of the Peace or other proper officer may not order any person other than a County Health Officer or a duly licensed and practicingphysician trained in pathology to take a finger from a body in order to ascertain identity. After the removal, the Justice of the Peace can order any person specially

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Honorable Oscar B. McInnis, Page 4 (M-1119)

trained in identificationwork to complete tests to determine,identity. very ply,

Preparedby Robert Darden AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Herschel T. Moore Linward Shivers Lynn Taylor Jim Swearingen SAMUEL D. MCDANIEL Staff LegalAssistant ALFRED WALKER ExecutiveAssistant NC&A WHITE FirstAssistant

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