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THE A~XM~NEY GENERAL 

OF -XAS 

AUSTIN. TRXAH W&711 

April 17, 1972 

Honorable Oscar 8. McInnis 

Criminal District Attorney 

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 deceased person 

for the purpose of determining the identity 

of such person 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 deceased person for the purpose of determining the identification of such person? 

"2 . Whether the Justice of the Peace may 

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 deceased person 

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 identification work, 

to remove a finger from a deceased person for 

the purpose of determining identification of 

such deceased person?" 

The statute pertinent to the question is set out as fo,llows: Article 49.03, Code of Criminal Procedure, as amended by 

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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 there be none 

or if his services are not then obtainable, then 

a duly licensed and,practicing physician, 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 determination he deems 

an autopsy necessary, the justice of the peace shall, 

by proper order, request the County Health Officer, 

or if there be none or if it be impracticable to 

secure his service, then some duly licensed and 

practicing physician who is trained in pathology 

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,shall pay the 

physician making such autopsy a fee of not more 

than $300, the amount to be determined by the 

Commissioners Court after ascertaining the amount 

and nature of the work performed in making such 

autopsy. In those cases where a complete autopsy is deemed unnecessary by 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 and processes as are required to determine 

the identity as well as the cause of death." 

(Emphasis added). 

In Attorney 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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Honorable Oscar B. McInnis, Page 3 (M-1119) 

investigative and laboratory tests and processes as are required 

to determine the identity of a body in the same manner as in 

ascertaining the cause of death. 

We answer your 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 the purpose of determining identification of 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 and practicing 

physician trained in pathology to.make an autopsy. Attorney 

General's Opinion No. M-427 (1969). Therefore, the Justice 

of the Peace may authorize only a County Health Officer or 

a duly licensed and practicing physician trained in pathology 

to remove such finger for the purpose of determining identification of such deceased person. 

Our answer to your second question requires your third 

question to be answered,in the negative. 

Our conclusion is .that under Article 49.03 a Justice of 

the Peace or any other officer may not order anyone other than 

a County Health Officer or a duly licensed and pr,acticing.physician trained in pathology 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 identification work to complete tests for identification purposes. 

------- SUMMARY 

Under Article 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 practicing physician 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 identification work to complete tests to 

determine ,identity. 

very ply, 

Preparedby Robert Darden 

Assistant Attorney 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 Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NC&A WHITE 

First Assistant 

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