THE ATTORXEP GENERAL OF TEXAS

Honorable Charles W. Chapman Criminal District Attorney Opinion No. JR-1202
Hays County Courthouse, Suite 208 Re: Inquest procedures SanMarcos, Texas 78666 under chapter 49of the Texas Code of Criminal Procedure (RQ-2051)

Dear Mr. Chapman:

You ask a number ofquestions relative to inquest procedures under subchapter A of chapter 49of the Code of Criminal Procedure. Subchapter A isapplicable to deaths in
acounty that does nothave amedical examiner. YOU advise that your questions are prompted by the decision of a justice of the peace tohold an "inquest hearing" following

- an earlier determination atan lVinguest*' as to the causes of death. You ask:



### (1) Inthe event the Justice of the Peace has conducted the inquest andmade a determination, is that determination final with regard to Articles 49.04 and 49.05? Can, inotherwords, there be ahearing after
an inquest has been conducted?

(2) IftheJustice of the Peace has made adetermination under Article 49.05 and
a subsequent inquest hearing isheld under Article 49.14, and a jury's determination is different than that of the Justice of the Peace, which isthe prevailing determination? Does thehearing jury or another Justice of the Peace have the right to amend the finding of the original Justice of the Peace?
(3) May the Justice of the Peace who hasmade the initial determination be called as awitness in the subsequent jury hearing to testify as to her knowledge of the death scene and the death scene investigation?

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(4) If so, may the Justice of the Peace then recuse herself frompresiding to be a witness in the 'matter and request another available justice of the peace (in the same county) topreside over the hearing?

(5) Since theJustice of the Peace, under Article 49.05(3), can conduct inquest 'atany other place determined to i: reasonable by the justice,' may the place be located inan adjacent county? What, ifany, are the geographical limitations on the place for the inquest or inquest hearing?

(6) Article 49.14(d) provides that the inquest hearing may be public orprivate. If it isprivate, may the Justice of the Peacemake it 'selectively private:' that is, permitting the family of the deceased to observe thehearing, forexample, but no one else other than the jurors, herself, and the state#s attorney?

Youhave provided uswith thebackground information that prompted your questions. A father, mother, and two children, aboy and agirl, died in their home during the early morning hours ofMarch 4, 1990, inEuda, Hays County. Under the circumstances you have related, an lqinguestl'was required under article 49.04 of the Code of Criminal Procedure. The justice of the peace in the precinct conducted an ~~inguest**that resulted in the justice requesting Dr. Robert Bayardo, Medical Examiner of Travis County, toperform autopsies on the fourdeceased persons. See Code Crim. Proc. art. 49.10. Following the autopsies, Dr. Bayardo made findings that themother and two children
came to their deaths as the result of gunshot wounds and that the father's death was the result ofagunshot wound, self-inflicted. You have furnished us with the autopsy reports that reflect indetail the procedures employed in the examination and the conclusions reached by the medical examiner. YOU advise that the justice of the peace's inquest findings correspond with the conclusions reached in the autopsy reports. OnMarch 23, 1990, the justice of the peace filed death certificates reflecting that the mother and two children died ofgunshot wounds. OnMarch 29, 1990, the justice filed adeath certificate for the father that -.

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found the cause of death to be. gunshot wounds, self-inflicted.1

You relate that onApril 15, 1990, the remains of the father and sonwere removed fromthe cemetery at the request of the next ofkin of the father. See Health 8Safety Code 5 711.004. Autopsies were performed on their remains by the Bexar County Medical Examiner, Dr.Vincent J.M. Dimaio. Youhave been advised that Dr. Dimaio concluded that it would be necessary for him tohave the benefit of further evidence before he could reach adecision. You state that about June 15, 1990,youwere advised by the justice of the peace that conducted the **inquest* that shehad set an "inquest hearing" forJune 27, 1990. This hearing has been continued to an indefinite date. You state that you did not request the "inquest hearing," and in the event such a hearing isheld, you are going to ask fora jury.

You askwhether the justice of the peace may hold an l@inguesthearing" after findings have been made as the result of the ~~inguest.~~
Article 49.01 of the Code ofCriminal Procedure defines P "inquest@*and "inquest hearing," as follows:

(2) 'Inquest'means an investigation into the cause and circumstances of the death of a person, and a determination, made with or without a formal court hearing, as towhether the death was caused by an unlawful act or omission.

(3) 'Inquest Hearing' means. a formal court hearing held todetermine whether the death of aperson was caused by an unlawful act oromission and, ifthe death was caused by an unlawful act oromission, to obtain evidence to form thebasis of a criminal prosecution.

1. Attorney General Opinion H-1064 (1977) concluded thatwhere it isdetermined that an erroneous cause ofdeath is shown inadeath certificate, the error may be corrected inaccordance with rule 51a ofarticle 4477, V.T.C.S., (now
see Health &Safety Code 5 191.028) by the attachment of an amending certificate.

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Article 49.05 requires that the justice of the peace shall conduct an inquest immediately or as soon as practicable after the justice of the peace isnotified of the death. Article 49.03 of the Code of Criminal Procedure states that the powers granted and duties imposed on the justice of the peace are independent of the powers and duties of a law enforcement agency investigating adeath.

Under article 49.14 of the Code ofCriminal Procedure
an "inquest hearing" may be held under the following circumstances:

(a) A justice of the peace conducting an inquest may hold an inquest hearing if the justice determines that the circumstances warrant thehearing. The justice shall hold
an inquest hearing ifrequested to do soby a district attorney or a criminal district attorney who serves the county inwhich the body was found.
Subsection (b)allows an "inquest hearing" tobe held with
orwithout a jury unless the district attorney requests that thehearing beheld with a jury.

We do not construe article 49.14 toprovide for a hearing to review an earlier determination as to the cause ofdeath made at the inquest. We believe the provisions of article 49.14 are tobe utilized when the justice of the peace or the district attorney feel that there is insufficient evidence available to make adetermination as to the cause ofdeath. Evidently, the justice of the peace felt that an article 49.14 hearing was unnecessary at the time shemade her findings. The conclusions as to cause of death in the four death certificates iscertified to be "on the basis of examination and/or investigation, in my opinion, death occurred at the time, date, and place due to the cause(s) and manner as stated." Apparently, you were satisfied as to completeness of the investigation since YOU state that you did not request ahearing.

The Supreme Court of Texas inBoehme v. Sovereian Camv Woodmen of the World 84 S.W. 422 (1905) contrasted an inquest conducted und& our statutes with an inquest at common law. The court stated that, unlike a common law coroner's inquest, our statutes provide no means for traversing the finding, "nor isanymethod whatever secured for the correction of an erroneous finding." See 78 A.L.R.Zd 1219 Coroner's ,Inouest. Under our statutes an

-,

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inquest proceeding does nothave tobe public. The hearing at common lawwas public. In refusing to admit the results of an 'inquest finding of suicide ina suit against an insurance company, the Boehme court noted the pit-falls attendant to allowing the admission of the results of an inquest. Webelieve the observations of the court inBoehme may be relevant to the issue ofwhether to allow a justice of the peace tohold a second hearing proceeding after having made adecision as to the cause ofdeath. In Boehme, the court stated:

The purpose of such inquest under our law ismerely to detect preliminary steps to supposed offender.

. . . . crime, and to take the secure a trial of the

Especially do we think that itwas not a purpose ofour lawmakers tomake the inquest
ameans ofperpetuating testimony tobe used inacivil suit, or by the finding of the justice tomanufacture evidence forause in
acase between other parties. Commenting upon the impolicy of such a rule, Chief Justice Hayt, of the Supreme Court of Colorado, says: 'In case of death under suspicious circumstances, or resulting from accident, the rule permitting inquisitions to be used in evidence would result ina race and scramble to secure a favorable coroner's verdict, that would influence, and perhaps control, in case suit should be instituted against life insurance companies upon policies of insurance, and in cases of accidents occurring as aresult ofnegligence
on the part of corporations operating railways, street car lines,mining for coal
or the precious metals, et cetera. Law writers, of late, have frequently animadverted upon the carelessness with which such inquests are frequently conducted, and to allow inquisitions tobe used ina suit between private parties upon a cause of action growing out of the death of the deceased, as in this case, would be to introduce an element ofuncertainty into the practice, which we think would be contrary to public policy andpernicious inthe extreme.

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Germania. win, 24 Colo. ,..:,' 43, 51 Pac. 488, 65Am. St.Rep. 215.
Smith, Coooeration Between Law and Science & Scientific Proof, 20Tex. L.Rev. 433 (1941)reviews shortcominas of our svstem of allowina iusticer of the peace to perform the fun&ion of the coroner-at common law.2-

The justice, being an elected officer, is not free from the possibility of political pressure, andhis short term of office does not permit him to accumulate experience in his very occasional duties as coroner. His jurisdiction isended ifhebelieves the case to be suicide. Inquest seems hardly available inbehalf of an accused who would bolster his protested innocence by scientific confirmation. The proceeding is given the formof a judicial inquirywhile having few of its incidents. Itdoes not permit of traverse or appeal, and theverdict reached isnot res adiudicata. Indeed, by the better view, it ' inadmissible subsequent hiiicide trial andboth on the civil _.

:~ -

. inany litigation based on the death. The inquest is but a preliminary device to gather evidence inconnection with possible criminal proceedings, being auxiliary to and in aid of both the examining trial and subsequent grand jury deliberations.

. . . . The Texas system of investigating sudden .,-, death interposes a lay judgment between .. ,.~ consecutive steps ofa scientific inquiry in which time isof the essence, and oft times the evidence isevanescent.

2. Article 49.25 of the Code of Criminal Procedure requires counties having a population of 500,000 or more (andnot having a reputable medical school) toprovide a medical examiner to conduct inquests rather than justices of the peace.

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The Court of Criminal Appeals inFishbeck v. State, 225 S.W.2d 854 (1948) stated that under articles 969 (now article 49.09) and 927 (nowarticle 49.08) of the Code of Criminal Procedure, a justice of the peace was authorized to order the disinterment of the deceased's body on February 12, 1947, for the purpose ofholding an inquest despite the fact that an inquest had been held on June 9, 1945, following the death of the deceased. The reason given by the justice of the peace forthe subsequent proceedings was that the first inquest "was incomplete and inconclusive."

Article 49.09 (formerly article 969)3 of the Code of Criminal Procedure provides:

(a) Ifa body subject to investigation under Article 49.04 of this code is interred and an authorized oerson has not conducted an inouest required under this subchapter, a justice of the peace may direct the disinterment of the body inorder to conduct an inquest. (Emphasis added.)
Article 49.08 (formerlyarticle 927) of the Code of Criminal Procedure states:

_~A justice of the peace conducting an inquest may act on information the justice receives fromany credible person oron facts within his knowledge.

The court concluded that the portion of the justice of the peace's order directing a second inquest and opinion testimony given at the subsequent inquestwere admissible in
amurder trial. Courts, other than inm, appear to have consistently followed Boehme inholding that findings at an inquest are not admissible. See. e.a., Armstrona v. -Casualtv COS, 357 S.W.2d 168 (Tex. Civ. App. - Waco 1962, nowrit): Comb'ned Ame ) 0.v. McCall, 497

3. Article 969 lacks the clarity of article 49.09. Article 969 provided:
Section 1.'When abody uponwhich an inquest ought to have been held has been interred, the Justice may cause ittobe disinterred forthe purpose of holding such inquest.

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S.W.Zd 350 (Tex. Civ. App. - Amarillo 1973, writ:bref?d n.r.e.). .-:: 5 ": ..~"

The court inFishbeck relied solely on articles:-;<969 (nowarticle 49.09) and 927 (nowarticle 49.08) in reaching itsconclusion despite the fact that article 969, as .-does article 49.09, conditions the disinterment and inquest:,,on there not having been an inquest previously held ,by,.' a qualified person. Under the circumstances you have related
a proper authority held an inquest and ordered a medical examiner toperform autopsies on thebodies of the deceased persons. To follow Fishbeck would be contrary to-:the express provisions of article 49.09 andplace no limit-asto time or the number of inquests thatmight be held so lbnb‘as the justice of the peace had information from a-person'::.the justice deemed credible or "factswithin his own knowledge."

Webelieve that itwas incumbent on the justice of the peace at the inquest to make adetermination as to whether itwas necessary tohold a formal hearing inorder to,make a determination as to cause of death. As pointed out in Boehme, death resulting from suspicious circumstances provides a setting for a race and scramble to secure a favorable verdict. It is logical to assume that any decision reached following an inquest will be unsatisfactory to some of the interested parties under such circumstances. Undoubtedly, thiswould result inpressure being applied to a justice of thepeace tohold a further proceeding in hope that a result favorable to the persons urging such hearing may be reached. We believe the statement by the court in Boehme that once a finding ismade, there isnomeans for traversing the finding, would be the conclusion of a.'~;IT&ritt confronted with the scenario you have related. .~ . ,_.., '..ii

Itmust be recognized that an inquest finding i$;';notto be equated with a final judgment rendered by a court."'! ".The inquest hearing is held forthe solepurpose of detecting crime. 44Tex. Jur. 3d Inouestg §8 (1985).. The .-&&eity granted a justice of the peace inholding an inquest ri's independent of the powers and duties of law enforcement authorities in investigating adeath. Code Grim. pe&-?,&&. 49.03. Clearly, an inquest verdict does )y-&Iprec3&~ .,, .'ia grand jury investigation intoviolations of the law.. See Code Crim. Proc. art. 20.01. Nor does it precltie ',a district judge from conducting a court of in#i~ljy .1%~ xhe judge believes an offense hasbeen committed against the laws of this state. Id. art. 52.01. Article.49;!I'5 fd): :of the Code of Criminal Procedure provides that the-:jiistficei of the peace shall deliver acopy 

### ofthe inquest summa* report

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to therdistrict clerk who isto retain the report to an'order of the district court.** "subject

~.~We,?believe

that it is incumbent upon a justice of the peace.or the district attorney to determine whether an "inquest hearing" isnecessary inmaking adetermination as tocause of death before a finding is made following the Winguest.80

AS you advise, the remainder ofyour questions are contingent on our concluding that an inquest hearing may be ordered after a finding has been rendered at an inquest. We conclude that no such inquest hearing may be ordered under the circumstances, and therefore we do not address your remaining~questions. SUMMARY

The determination ofwhether an inquest hearing isto beheld must be made at the inquest. Subsequent to findings being rendered as to cause ofdeath at an inquest, a,justice of the peace may not order an i.nguesthearing.

J I,M MATTOX Attorney General ofTexas

MARY&lX.LER FirstAssistant Attorney General

LouMC-Y Executive-Assistant Attorney General

JUDG~:~~IE:STEAKLEY Special &asi,stantAttorney General

RENEA lmxs Speci:sl-&s~si.stent Attorney General

RICK GIL@IN Chairmqq,,,GpinionCommittee
Prepared;by TomG. Davis Assistant Attorney General

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