OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS JOHN CORNYN

August 14,2002

The Honorable Charles D. Penick Bastrop County Criminal District Attorney 804 Pecan Street Bastrop, Texas 78602 Opinion No. JC-0542

Re: Whether an autopsy report may be withheld from the public if a prosecutor determines that its release could hinder a murder investigation (RQ-05 11-JC)

Dear Mr. Penick:

You ask ifthere is any provision of law that would prevent public inspection of an autopsy report held by ajustice ofthe peace, where disclosure would hinder the investigation orprosecution of a serious offense.’ Autopsy reports held by ajustice of the peace are ordinarily subject to inspection by members ofthe public pursuant to Government Code section 27.004, and no statute expressly excepts these documents from disclosure tothe public. However, you might find the relief you seek by securing acourt order requiring the autopsy report tobewithheld from public inspection to prevent hindrance ofthe investigation and prosecution ofthe murder.

You state that amurder was committed in the City ofBastrop and an autopsy was performed
on the victim in connection with an inquest by thejustice ofthe peace into the death. See Request Letter, supra note 1, at 1. The autopsy report, which is held by the justice of the peace, reflects details ofthe crime that are unknown to the general public, and the Bastrop Police Department and your office wish to prevent public disclosure of the report so it can be used to identify false confessions and aid in investigating the murder. See id. A member of the media has requested
access to the autopsy report. See id.

The records of ajustice of the peace are records of acourt, and therefore are not subject to the Public Information Act or to its exceptions from disclosure to the public. See TEX. GOV’T CODE ANN.$0552.003(l)(B), .0035, .108(a) (Vernon Supp. 2002) (exception for information held by law enforcement agency or prosecutor if release would interfere with detection, investigation, or prosecution of crime). The records of thejustice’s office have long been held to be available for public inspection under section 27.004 of the Governrnent Code, which provides in part:

‘Letter from Honorable Charles D. Penick, Bastrop County Criminal District Attorney, to Honorable John Comyn, Texas Attorney General (Feb. 11,2002) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Charles D. Penick - Page 2 (JC-0542)

(a) Each justice shall arrange and safely keep all dockets, books, and papers transmitted to thejustice by thejustice’s predecessors in office, and all papers filed in a case injustice court, subject to the inspection of any interested party atreasonable times.
Id. §27.004(a) (Vernon 1988). See Tex. Att’y Gen. Op.No. JC-0422 (2001); Tex. Att’y Gen. ORD25 (1974) (construing prior codification of Government Code section 27.004). You ask ifthere is
an exception to Government Code section 27.004, orifother relief is available, when the disclosure of an autopsy report held by thejustice of the peace will hinder the investigation or prosecution of
a serious offense. See Request Letter, supra note 1,at 1.

We consider whether chapter 49 ofthe Code ofCriminal Procedure, which governs inquests upon dead bodies, includes provisions making autopsy reports confidential. Inquests are conducted by ajustice ofthe peace pursuant to subchapter A, chapter 49, Code of Criminal Procedure, unless the county has established the office of medical examiner. See TEX. CODE

### CRIM. PROC.ANN.arts. 49.02, .04, .25 (Vernon Supp. 2002); see also Act ofApr. 21, 1955,54th Leg., R.S., ch. 159, 8 14, 1955 Tex. Gen. Laws 524, 527 (authorizing counties of at least 250,000 population to appoint medical examiner). The commissioners court ofany county ofmore than 1,OOO,OOO population that does not have a “reputable medical school” as defined by statute “shall establish and maintain the office of medical examiner,” while the commissioners court of any county may do so. See TEX. CODECFUM.

PROC.ANN.art. 49.25,§ 1(Vernon Supp. 2002). See id. art.49.25,§ 1-a (Vernon 1979) (creation of multi-county medical examiners district by two or more counties). When the county establishes the office of medical examiner, “all powers and duties ofjustices of the peace in such county relating to the investigation of deaths and inquests shall vest in the office of the medical examiner.” Id. art. 49.25, 5 12. The medical examiner or his duly authorized deputy may hold inquests pursuant to chapter 49, subchapter B ofthe Code ofCriminal Procedure. See id. art. 49.25 (Vernon 1979 & Supp. 2002).

Because Bastrop County does not have amedical examiner’s office, the inquest in this case was conducted by ajustice of the peace. See Request Letter, supra note 1, at 1. Ajustice of the peace “shall conduct an inquest into the death of aperson who dies in the county served by the justice” if“the circumstances ofthe death indicate that the death may have been caused by unlawful
means.” TEX. CODECRIM. PROC.ANN. art. 49.04(a)(4) (Vemon Supp. 2002). An inquest is “an investigation into the cause and circumstances ofthe death of aperson, and adetermination, made with or without a formal court hearing, as to whether the death was caused by an unlawful act or omission.” Id. art. 49.01(2). The purpose of an inquest hearing is to determine whether the death of a person resulted from a crime, and if so, to obtain evidence to form the basis of a criminal prosecution. See id. art. 49.01(3); see also Parsons v.State, 271 S.W.2d 643,65 1(Tex. Crim. App. 1953) (describing duties ofjustice ofthe peace acting ascoroner). Ajustice “shall order an autopsy performed on abody” ifnecessary to determine orconfirm the nature and cause ofdeath, if“directed to do soby the district attorney, criminal district attorney, or,ifthere isno district orcriminal district attorney, the county attorney,” orunder certain circumstances indicating neglect or abuse of achild. TEX. CODE CRIM. PROC.ANN.art. 49.10(e)(2)-(3) (Vemon Supp. 2002). The justice of the peaceThe Honorable Charles D. Penick - Page 3 , (JC-0542)

“shall request a physician to perform the autopsy,” and the commissioners court shall pay a reasonable fee to the physician. See id. art. 49.10(f)-(g). The autopsy in this case was performed by the Travis County Medical Examiner’s office. See Request Letter, supra note 1,at 1.
Article 49.15 requires thejustice ofthe peace to make an inquest record for each inquest he conducts. TEX. CODEGRIM.PROC.ANN.art. 49.15(a) (Vernon Supp. 2002). “The inquest record must include areport ofthe events, proceedings, findings, and conclusions of the inquest.” Id. It must also include “any autopsy prepared in the case and all other papers of the case.” Id. “All papers of the inquest record must be marked with the case number and be clearly indexed and be maintained in the office ofthejustice ofthe peace and be made available to the appropriate officials upon request.” Id. If an inquest hearing was conducted, the record of the hearing is part of the inquest record. See id. art. 49.15(b); see also id. art. 49,15(b)(l)-(9) (content of inquest hearing records). The justice of the peace “shall certify a copy of the inquest summary report and deliver the certified copy in a sealed envelope to the clerk of the district court,” who “shall retain the surnmary report subject to an order by the district court.” Id. art.49.15(d).

We first consider whether article 49.15(d) of the Code of Criminal Procedure implicitly makes the autopsy report confidential. Article 49.15(d) requires thejustice of the peace to certify
a copy of “the inquest summary report” and “deliver the certified copy in a sealed envelope to the clerk of the district court.” Id. While the statute does not describe the content of the “inquest summary report,” we will assume that it includes the autopsy report or at least a summary of it.
Under some circumstances, arecord is sealed to make itconfidential. See TEX. FAM. CODE ANN.858.003 (Vernon Supp. 2002) (records ofjuvenile court proceedings). However, our review of article 49.15(d) shows that it uses the term “sealed envelope” for adifferent purpose and that it does not mean that the inquest summary report is confidential.

We first point out that the substance of article 49.15(d) has been part of Texas law for a considerable time. Its precursor dates from 1887, when itread as follows: [T]he justice before whom the

. . . [inquest] was held shall certify to the proceedings, and shall enclose in an envelope the testimony taken, the finding ofthejustice, the bail bonds if any, and all other papers connected with the inquest, and shall seal up such envelope and deliver it, properly indorsed, to the clerk ofthe district court

. . .who shall safely keep the same in his office subject to the order of the court.
See Act of Mar. 17, 1887,2Oth Leg., R.S., ch. 45, 8 1, 1887 Tex. Gen. Laws 31’32.
The purpose ofthe article 49.15(d) requirement that thejustice deliver the inquest summary report in asealed envelope becomes apparent when itis seen in its historical and statutory context. A primary reason for holding an inquest is to gather evidence about apossible crime. The justiceThe Honorable Charles D. Penick - Page 4 (JC-0542)

has aduty to “preserve alltangible evidence” accumulated in the course of an inquest “that tends to show the real cause of death or identify the person who caused the death” and to deposit this evidence with the appropriate law enforcement agency “to be stored in the agency’s property room for safekeeping” or “deliver the evidence to the district clerk for safekeeping subject to the order of the court.” TEX. CODECRIM. PROC.ANN.art. 49.17 (Vernon Supp. 2002). Section 49.15(d), like article 49.17, provides for the recordation, preservation and authenticity of evidence. The requirement that the justice certify the inquest summary report and deliver it in a sealed envelope helps ensure that acomplete and accurate record will reach the district clerk.
Similar statutes have been read as providing for the preservation and authenticity of court records. For example, article 17.30 ofthe Code ofCriminal Procedure requires the magistrate in an examining trial to “certify to all the proceedings had before him

. . .and transmit them, sealed up, to the court before which the defendant may be tried, writing his name across the seals of the envelope.” Id. art. 17.30 (Vernon 1977). The court inDuncan v.State wrote about the predecessor of article 17.30 that “[t]he purpose ofthis statute is that these records may be preserved for use by the grand jury and the prosecuting officers.” Duncan v.State, 279 SW. 457 (Tex. Crim. App. 1925) (considering effect ofmagistrate’s failure “to certify, seal, and deliver to the clerk ofthe court” the examining court proceedings asrequired by former Code ofCriminal Procedure article 347 (19 11)). See also Tex. Att’y Gen. Op. No. C-l 77 (1963) (district clerk must keep safely the proceedings received from magistrate who holds examining trials, but may not deny district attorney access to those records). The Supreme Court of Washington, addressing a statute that required depositions to be enclosed “in a sealed envelope” and delivered to the court, asked whether appellant’s failure to enclose adeposition in asealed envelope “was such afatal irregularity as to destroy its value as evidence.” Kirkpatrick v.Dep ‘tofLabor and Indus., 290 P.2d 979, 980 (Wash. 1955). “[I]n the absence of any evidence oftampering or alteration,” this mistake did not warrant suppression ofthe deposition. Id.; see also Travers v. Jennings, 17 S.E. 849, 850 (S.C. 1893) (notary shows that deposition sent to court in sealed envelope is his work by using sealing wax stamped with notarial seal, writing his name across envelope, orwriting name across the flap of envelope after sealing it). We conclude that section 49.15(d) requires the inquest summary report to be sealed in an envelope to protect the authenticity of the evidence, not to make it confidential.

We also consider whether article 49.15(a) of the Code of Criminal Procedure provides confidentiality for the inquest records held by the justice of the peace. This provision states that

“[a]11papers of the inquest record must

. . .be made available to the appropriate officials upon request.” See TEX. CODEGRIM.PROC.ANN.art. 49.15(a) (Vernon Supp. 2002). This language could suggest that the papers are available only to the appropriate officials and not to the general public. On the other hand, this provision could be intended to insure that the justice of the peace would provide “appropriate officials” access to the records without cutting off any rights ofpublic access provided by another statute, specifically section 27.004 of the Government Code. Cf: Tex. Att’y Gen. Op. No. C-l 77 (1963) (district clerk may not deny district attorney access to records of examining trials).The Honorable Charles D. Penick - Page 5 (JC-0542)

Legislative history supports the conclusion that section 49.15(a) does not make the inquest report confidential to everyone but “appropriate public officials.” The language regarding the availability of inquest papers to the appropriate officials was adopted in 1987, in a “systematic revision ofthe state’s inquest and autopsy procedures.” HOUSECRIM.JURISPRUDENCE COMM., BILL ANALYSIS,Tex. C.S.H.B. 1104,7Oth Leg., R.S. (1987). The committee’s substitute for House Bill 1104 was described as a “non-substantive clean-up bill.” HOUSERESEARCH ORGANIZATION,

BILL ANALYSIS,Tex. C.S.H.B. 1104,7Oth Leg., R.S. (1987). The bill made the duties ofthe justice ofthe peace clearer and gave that officer additional powers. See id. There was no indication in the bill analyses that the bill would affect public access to records of autopsies prepared for inquests.
Section 49.15(a) and (d) may be compared with section 49.18(b) of the Code of Criminal Procedure, which requires the investigation ofthe death ofaperson in the custody of apeace officer
or confined in ajail orprison. TEX. CODECRIM.PROC.ANN.549.18(b) (Vernon Supp. 2002). The director ofthe law enforcement agency to which the peace officer belongs orofthe facility inwhich the prisoner was confined must investigate the death and file awritten report ofthe cause of death with the attorney general. See id. “The attorney general shall make the report, with the exception of any portion of the report that the attorney general determines is privileged, available to any interested person.” Id. Section 49.18(b) explicitly provides that the attorney general may determine that portions of the report are privileged and withhold them from the public. See Tex. Att’y Gen. ORD-521 (1989) (Part I on reporting form devised by office of attorney general is open; Parts II through V are privileged). Section 49.15(a) and (d), in contrast to section 49.18(b), does not expressly make inquest records confidential.

We find no provision in chapter 49 of the Code of Criminal Procedure that authorizes the justice ofthe peace to withhold an autopsy report from public inspection, and we have not found any other statute that would except the autopsy report from inspection under Government Code section 27.004 when disclosure tothe public will hinder the investigation orprosecution ofaserious offense. We understand, however, that some public entities have foundjudicial relief incircumstances similar to those of the present case. See Tex. Att’y Gen. ORD-389 (1983) (report of police investigation, which included an autopsy report, was subject toprotective order). Accordingly, you might find the relief you seek by securing a court order requiring the autopsy report to be withheld from public inspection to prevent hindrance of the investigation and prosecution ofthe murder.The Honorable Charles D. Penick - Page 6 (JC-0542)

SUMMARY

An autopsy report prepared in connection with an inquest by
ajustice of the peace into a murder may be inspected by the public pursuant to section 27.004 of the Government Code. Chapter 49 of the Code of Criminal Procedure, which governs inquests, does not provide confidentiality for records of an inquest conducted by a justice of the peace, or for an autopsy report prepared as part of the inquest. We find no statute that would except such an autopsy report from public inspection under Government Code section 27.004. However, should the district attorney’s office or the police department wish to prohibit public disclosure ofan autopsy report to prevent hindrance of the investigation and prosecution of amurder, it might find relief by securing a court order requiring the autopsy report in thejustice’s custody to be withheld from public inspection.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General -General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee
Susan L. Garrison Assistant Attorney General, Opinion Committee