THE ATTORXEP GENERAL 

OF TEXAS 

Honorable Charles W. Chapman 

Criminal District Attorney 

Opinion No. JR-1202 

Hays County Courthouse, Suite 208 Re: Inquest procedures 

San Marcos, Texas 78666 under chapter 49 of the 

Texas Code of Criminal 

Procedure (RQ-2051) 

Dear Mr. Chapman: 

You ask a number of questions relative to inquest 

procedures under subchapter A of chapter 49 of the Code of 

Criminal Procedure. Subchapter A is applicable to deaths in 

a county that does not have a medical examiner. YOU advise 

that your questions are prompted by the decision of a 

justice of the peace to hold an "inquest hearing" following 

- an earlier determination at an lVinguest*' as to the causes of 

death. You ask: 

(1) In the event the Justice of the 

Peace has conducted the inquest and made a 

determination, is that determination final 

with regard to Articles 49.04 and 49.05? 

Can, in other words, there be a hearing after 

an inquest has been conducted? 

(2) If the Justice of the Peace has 

made a determination under Article 49.05 and 

a subsequent inquest hearing is held under 

Article 49.14, and a jury's determination is 

different than that of the Justice of the 

Peace, which is the prevailing determination? 

Does the hearing 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 

has made the initial determination be called 

as a witness in the subsequent jury hearing 

to testify as to her knowledge of the death 

scene and the death scene investigation? 

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Honorable Charles~ W. Chapman - Page 2 (JM-1202) 

(4) If so, may the Justice of the 

Peace then recuse herself from presiding to 

be a witness in the 'matter and request 

another available justice of the peace (in 

the same county) to preside over the hearing? 

(5) Since the Justice of the Peace, 

under Article 49.05(3), can conduct 

inquest 'at any other place determined to i: 

reasonable by the justice,' may the place be 

located in an adjacent county? What, if any, 

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 or private. 

If it is private, may the Justice of the 

Peace make it 'selectively private:' that is, 

permitting the family of the deceased to 

observe the hearing, for example, but no one 

else other than the jurors, herself, and the 

state#s attorney? 

You have provided us with the background information 

that prompted your questions. A father, mother, and two 

children, a boy and a girl, died in their home during the 

early morning hours of March 4, 1990, in Euda, 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, to perform autopsies on the four deceased persons. 

See Code Crim. Proc. art. 49.10. Following the autopsies, 

Dr. Bayardo made findings that the mother and two children 

came to their deaths as the result of gunshot wounds and 

that the father's death was the result of a gunshot wound, 

self-inflicted. You have furnished us with the autopsy 

reports that reflect in detail 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. On March 23, 1990, the justice of the 

peace filed death certificates reflecting that the mother 

and two children died of gunshot wounds. On March 29, 1990, 

the justice filed a death certificate for the father that 

-. 

P. 6362 
Honorable Charles W. Chapman - Page 3 (JM-1202) 

found the cause of death to be. gunshot wounds, 

self-inflicted.1 

You relate that on April 15, 1990, the remains of the 

father and son were removed from the cemetery at the request 

of the next of kin of the father. See Health 8 Safety Code 

5 711.004. Autopsies were performed on their remains by the 

Bexar County Medical Examiner, Dr. Vincent J. M. Dimaio. 

You have been advised that Dr. Dimaio concluded that it 

would be necessary for him to have the benefit of further 

evidence before he could reach a decision. You state that 

about June 15, 1990, you were advised by the justice of the 

peace that conducted the **inquest* that she had set an 

"inquest hearing" for June 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 is held, you are going to ask for a jury. 

You ask whether the justice of the peace may hold an 

l@inguest hearing" after findings have been made as the 

result of the ~~inguest.~~ 

Article 49.01 of the Code of Criminal 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 to whether 

the death was caused by an unlawful act or 

omission. 

(3) 'Inquest Hearing' means. a formal 

court hearing held to determine whether the 

death of a person was caused by an unlawful 

act or omission and, if the death was caused 

by an unlawful act or omission, to obtain 

evidence to form the basis of a criminal 

prosecution. 

1. Attorney General Opinion H-1064 (1977) concluded 

that where it is determined that an erroneous cause of death 

is shown in a death certificate, the error may be corrected 

in accordance with rule 51a of article 4477, V.T.C.S., (now 

see Health & Safety Code 5 191.028) by the attachment of an 

amending certificate. 

p. 6363 
Honorable Charles W. Chapman - Page 4 ~(JM-1202) 

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 is notified 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 a death. 

Under article 49.14 of the Code of Criminal 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 the hearing. The justice shall hold 

an inquest hearing if requested to do so by a 

district attorney or a criminal district 

attorney who serves the county in which the 

body was found. 

Subsection (b) allows an "inquest hearing" to be held with 

or without a jury unless the district attorney requests that 

the hearing be held with a jury. 

We do not construe article 49.14 to provide for a 

hearing to review an earlier determination as to the cause 

of death made at the inquest. We believe the provisions of 

article 49.14 are to be utilized when the justice of the 

peace or the district attorney feel that there is 

insufficient evidence available to make a determination as 

to the cause of death. Evidently, the justice of the peace 

felt that an article 49.14 hearing was unnecessary at the 

time she made her findings. The conclusions as to cause of 

death in the four death certificates is certified 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 a hearing. 

The Supreme Court of Texas in Boehme 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 is any method 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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Honorable Charles W. Chapman - Page 5 (JM-1202) 

inquest proceeding does not have to be public. The hearing 

at common law was public. In refusing to admit the results 

of an 'inquest finding of suicide in a suit against an 

insurance company, the Boehme court noted the pit-falls 

attendant to allowing the admission of the results of an 

inquest. We believe the observations of the court in Boehme 

may be relevant to the issue of whether to allow a justice 

of the peace to hold a second hearing proceeding after 

having made a decision as to the cause of death. In Boehme, 

the court stated: 

The purpose of such inquest under our law 

is merely to detect 

preliminary steps to 

supposed offender. 

. . . . 

crime, and to take the 

secure a trial of the 

Especially do we think that it was not a 

purpose of our lawmakers to make the inquest 

a means of perpetuating testimony to be used 

in a civil suit, or by the finding of the 

justice to manufacture evidence for a use in 

a case 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 in a 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 a result of negligence 

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 to be used in a 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 of uncertainty into the 

practice, which we think would be contrary to 

public policy and pernicious in the extreme. 

p. 6365 
Honorable Charles W. Chapman - Page 6 (JM-1202) 

Germania. win, 24 Colo. ,..:,' 

43, 51 Pac. 488, 65 Am. St. Rep. 215. 

Smith, Coooeration Between Law and Science & 

Scientific Proof, 20 Tex. 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, and his short term of office does 

not permit him to accumulate experience in 

his very occasional duties as coroner. His 

jurisdiction is ended if he believes the case 

to be suicide. Inquest seems hardly 

available in behalf of an accused who would 

bolster his protested innocence by scientific 

confirmation. The proceeding is given the 

form of a judicial inquiry while having few 

of its incidents. It does not permit of 

traverse or appeal, and the verdict reached 

is not res adiudicata. Indeed, by the better 

view, it ' inadmissible 

subsequent hiiicide trial and 

both on the 

civil _. :~ - 

. 

in any 

litigation based on the death. The inquest 

is but a preliminary device to gather 

evidence in connection 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 of a scientific inquiry in 

which time is of the essence, and oft times 

the evidence is evanescent. 

2. Article 49.25 of the Code of Criminal Procedure 

requires counties having a population of 500,000 or more 

(and not having a reputable medical school) to provide a 

medical examiner to conduct inquests rather than justices of 

the peace. 

p. 6366 
. 

Honorable Charles W. Chapman - Page 7 (JM-1202) 

The Court of Criminal Appeals in Fishbeck v. State, 225 

S.W.2d 854 (1948) stated that under articles 969 (now 

article 49.09) and 927 (now article 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 of holding 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 for the 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) If a 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 in order to conduct an 

inquest. (Emphasis added.) 

Article 49.08 (formerly article 927) of the Code of 

Criminal Procedure states: 

_~ A justice of the peace conducting an 

inquest may act on information the justice 

receives from any credible person or on 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 inquest were admissible in 

a murder trial. Courts, other than in m, appear to 

have consistently followed Boehme in holding that findings 

at an inquest are not admissible. See. e.a., Armstrona v. 

-Casualtv C OS, 357 S.W.2d 168 (Tex. Civ. App. - 

Waco 1962, no writ): Comb'ned ) Ame 0. v. McCall, 497 

3. Article 969 lacks the clarity of article 49.09. 

Article 969 provided: 

Section 1.' When a body upon which an inquest ought to 

have been held has been interred, the Justice may 

cause it to be disinterred for the purpose of holding 

such inquest. 

p. 6361 
Honorable Charles W. Chapman - Page 8 (JM-1202) 

S.W.Zd 350 (Tex. Civ. App. - Amarillo 1973, writ:bref?d 

n.r.e.). .-:: 5 ..~" ": 

The court in Fishbeck relied solely on articles:-;<969 

(now article 49.09) and 927 (now article 49.08) in reaching 

its conclusion 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 to perform autopsies on the bodies of the deceased 

persons. To follow Fishbeck would be contrary to-: the 

express provisions of article 49.09 and place no limit-asto 

time or the number of inquests that might be held so lbnb‘as 

the justice of the peace had information from a-person'::.the 

justice deemed credible or "facts within his own knowledge." 

We believe that it was incumbent on the justice of the 

peace at the inquest to make a determination as to whether 

it was necessary to hold a formal hearing in order 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, this would result in pressure being applied to 

a justice of the peace to hold 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 is made, there is no means for 

traversing the finding, would be the conclusion of a.'~;IT&ritt 

confronted with the scenario you have related. .~ . ,_.., '..i i 

It must be recognized that an inquest finding i$;';notto 

be equated with a final judgment rendered by a court."'! ".The 

inquest hearing is held for the sole purpose of detecting 

crime. 44 Tex. Jur. 3d Inouestg § 8 (1985).. The .-&&eity 

granted a justice of the peace in holding an inquest ri's 

independent of the powers and duties of law enforcement 

authorities in investigating a death. Code Grim. pe&-?, &&. 

49.03. Clearly, an inquest verdict does )y-& Iprec3&~ .,, .'ia 

grand jury investigation into violations 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 has been 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 a copy of the inquest summa* report 

p. 6368 
Honorable Charles W. Chapman - Page 9 ,(JM-l202) 

to therdistrict clerk who is to 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" is necessary in making a determination as 

tocause of death before a finding is made following the 

Winguest.80 

AS you advise, the remainder of your 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 of whether an inquest 

hearing is to be held must be made at the 

inquest. Subsequent to findings being 

rendered as to cause of death at an inquest, 

a, justice of the peace may not order an 

i.nguest hearing. 

J I, M MATTOX 

Attorney General of Texas 

MARY&lX.LER 

First Assistant Attorney General 

Lou MC-Y 

Executive-Assistant Attorney General 

JUDG~:~~IE:STEAKLEY 

Special &asi,stant Attorney General 

RENEA lmxs 

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

RICK GIL@IN 

Chairmqq,, ,Gpinion Committee 

Prepared;by Tom G. Davis 

Assistant Attorney General 

p. 6369