Can a Texas county pay for an autopsy when its resident dies in another county?

Texas AG Opinion JC-0071: A County Cannot Contract Away Out-of-County Autopsy Costs

Plain-English summary

People who are fatally injured in one county sometimes die in a hospital in a neighboring county. That creates a practical billing problem: the county with the hospital ends up hosting deaths of out-of-county residents. The Houston County Attorney asked the Attorney General whether Houston County could sign an interlocal contract with a neighboring county under which the neighboring county would pay the autopsy expenses for its own residents who die in the Houston County hospital. The opinion said no.

The reason is how chapter 49 of the Code of Criminal Procedure assigns responsibility. A justice of the peace conducts an inquest into a suspicious or unexplained death that occurs in the justice's own county, to determine whether the death resulted from a crime, and may order an autopsy as part of that inquest. The county where the death occurred must pay a reasonable fee to the physician who performs the autopsy if one is assessed. A prior letter opinion had already established that a justice of the peace in one county cannot order an autopsy on a resident who dies in a different county, that such an order is void, and that the justice's county therefore may not pay for it. So a county's authority to order, and duty to pay for, an inquest autopsy turns entirely on where the death occurred.

The opinion then explained why an interlocal contract cannot move that obligation. Paying for a properly ordered autopsy is a "governmental function or service," because it serves the county's interest in detecting crime and protecting public welfare, so it is the kind of thing the Interlocal Cooperation Act generally covers. But the Act has a limit: it does not let a county perform (or pay another to perform) a function the county has no authority to perform on its own. The county where the death occurred cannot contract away its statutory duty to conduct and pay for the autopsy, and a county where the death did not occur has no authority to conduct or pay for the autopsy in the first place. Since neither county can do the task itself across the county line, neither can contract to do it. The opinion noted that more than one county may have venue to prosecute a cross-county homicide (the county where the injury occurred, where the death occurred, or where the body was found), but chapter 49 still ties the autopsy duty solely to the county where the death occurred and provides no alternative scheme for the other counties.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a county pay for an autopsy on its resident who died in another county?
According to this opinion, no. A county has no authority to order or pay for a chapter 49 inquest autopsy when the death occurred in another county, and it could not use an interlocal contract to take on that cost.

Which county pays for an inquest autopsy?
The county where the death occurred. Under article 49.10(g), the commissioners court of that county must pay a reasonable fee to the physician performing the autopsy if a fee is assessed. A county's responsibility to pay, and a justice of the peace's authority to order the autopsy, both hinge on where the death occurred.

Why couldn't an interlocal contract solve the problem?
Because the Interlocal Cooperation Act does not authorize a county to perform, or pay another county to perform, a function the county lacks authority to perform itself. The county where the death occurred cannot contract away its duty, and a county where the death did not occur has no authority over the autopsy, so neither can contract to do it.

What if more than one county wants to prosecute the death?
The opinion acknowledged that venue for a cross-county homicide can lie in the county where the injury occurred, where the death occurred, or where the body was found. But chapter 49 still assigns the autopsy duty only to the county where the death occurred and does not provide an alternative for other counties with venue.

Background and statutory framework

Chapter 49 of the Code of Criminal Procedure governs inquests. A justice of the peace must conduct an inquest into a suspicious or unexplained death that occurs in the justice's county to determine whether the death resulted from a criminal act or omission (article 49.01(2), .04(a)), and may obtain an autopsy as part of the inquest (article 49.01(1), .10(a), (c), (e)). The opinion cited Boehme v. Sovereign Camp Woodmen of the World (Texas Supreme Court) and Service Mutual Insurance Co. v. Banke (San Antonio Court of Civil Appeals) for the principle that an inquest's purpose is to detect crime. Article 49.10(g) requires the county to pay "a reasonable fee to a physician performing an autopsy on the order of a justice of the peace" if the physician assesses one.

The Interlocal Cooperation Act (Government Code chapter 791) lets a local government, including a county, contract with other local governments to perform a governmental function or service that each party may perform individually (sections 791.003(4), 791.011(c)(2)). "Governmental functions and services" include broad categories such as police protection and public health and welfare, and also any function in which the parties have a "mutual interest" (section 791.003(3)). The opinion concluded that paying for a properly ordered autopsy fits within that definition.

On venue, the opinion cited article 13.07, which makes venue for a cross-county homicide proper in the county where the injury was received, where the death occurred, or where the body was found, along with McCaine v. State (Texas Court of Criminal Appeals) and Washburn v. State (Houston Court of Appeals). For the limit on interlocal contracting, it relied on Letter Opinion LO-94-060 (a county may not conduct or pay for an autopsy when the death occurred in another county) and Attorney General Opinion JM-1197 (1990) (the Act does not authorize a county to perform a function for another county where the nonperforming county is not authorized to perform the task itself).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. arts. 49.01(1), (2), 49.04(a), 49.10(a), (c), (e), (g) (Vernon Supp. 1999)
• Tex. Code Crim. Proc. Ann. art. 13.07 (Vernon 1977)
• Tex. Gov't Code Ann. ch. 791; §§ 791.003(3), (4), 791.011(c)(2) (Vernon 1994 & Supp. 1999)

Cases:

• Boehme v. Sovereign Camp Woodmen of the World, 84 S.W. 422 (Tex. 1905)
• Service Mut. Ins. Co. v. Banke, 155 S.W.2d 668 (Tex. Civ. App.-San Antonio 1941, writ ref'd)
• McCaine v. State, 211 S.W.2d 190 (Tex. Crim. App. 1948)
• Washburn v. State, 692 S.W.2d 576 (Tex. App.-Houston [1st Dist.] 1985, no pet.)

Attorney General opinions referenced: LO-94-060; JM-1197 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0071
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0071.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

July 6, 1999

The Honorable Donna J. Gordon
Houston County Attorney
100 North 6th Street, Suite 105
Crockett, Texas 75835

Opinion No. JC-0071

Re: Whether a county may pay the autopsy expenses performed as part of an inquest into a death that occurs in a neighboring county (RQ-1155)

Dear Ms. Gordon:

A justice of the peace in one county cannot order an autopsy on a resident of that county who dies in another county. See Tex. Att'y Gen. LO-94-060, at 1. Furthermore, because an order to conduct an autopsy on a person who died in another county is void, the justice's county may not pay for the autopsy. See id. at 2. You ask whether your county, Houston County, may enter into an interlocal contract with a neighboring county under which the neighboring county pledges to pay expenses on residents of that county who die in the Houston County hospital. We conclude it may not.

We assume you ask about autopsies performed under chapter 49 of the Code of Criminal Procedure, which permits a justice of the peace to obtain an autopsy as part of an inquest. See TEX. CODE CRIM. PROC. ANN. arts. 49.01(1), .10(a), (c), (e) (Vernon Supp. 1999) (defining "autopsy" and authorizing justice of peace to order autopsy as part of inquest). A justice of the peace must conduct an inquest into a suspicious or unexplained death that occurs in the county served by the justice to determine whether the death resulted from a criminal act or omission. See id. arts. 49.01(2), .04(a) (defining "inquest" and requiring justice of peace to conduct inquest in certain circumstances); see also Boehme v. Sovereign Camp Woodmen of the World, 84 S.W. 422, 423 (Tex. 1905) (describing purpose of inquest as "merely to detect crime"); Service Mut. Ins. Co. v. Banke, 155 S.W.2d 668, 669 (Tex. Civ. App.-San Antonio 1941, writ ref'd) (stating that inquest's sole purpose is to detect crime). A county must pay "a reasonable fee to a physician performing an autopsy on the order of a justice of the peace" if the physician assesses one. TEX. CODE CRIM. PROC. ANN. art. 49.10(g) (Vernon Supp. 1999).

The Interlocal Cooperation Act (the "Act"), TEX. GOV'T CODE ANN. ch. 791 (Vernon 1994 & Supp. 1999), authorizes a local government, including a county, to contract with other local governments to perform a governmental function or service that each party may perform individually. See id. §§ 791.003(4), .011(c)(2) (Vernon 1994) (defining "local government" and listing permissible purposes for interlocal contract, respectively). Governmental functions comprise several broad categories of services such as police protection or public health and welfare, but also include any function in which the contracting parties have a "mutual interest." See id. § 791.003(3) (defining "governmental functions and services").

Paying for a properly ordered autopsy is a governmental function or service for the purposes of the Act. An autopsy ordered and performed under chapter 49 of the Code of Criminal Procedure necessarily implicates a county's interest in detecting criminal activity and protecting the public welfare. See TEX. CODE CRIM. PROC. ANN. arts. 49.01(2), .04(a) (Vernon Supp. 1999) (defining "inquest" and listing circumstances in which justice of peace must order inquest). As such, an autopsy generally falls within the types of governmental functions and services the Act contemplates.

We understand that the county where the fatal injury was inflicted, as well as the county where the victim died, may desire to prosecute the homicide. Venue in a criminal prosecution for homicide in which a person receives an injury in one county but dies in another as a result of the injury is proper in the county in which the injury was received, where the death occurred, or where the dead body was found. Id. art. 13.07 (Vernon 1977). Thus, it is possible that three counties properly may pursue such a cross-county homicide: (1) the county where the death-causing injury occurred; (2) the county where death from the injury actually occurred; or (3) the county where the dead body was found. McCaine v. State, 211 S.W.2d 190, 191 (Tex. Crim. App. 1948); accord Washburn v. State, 692 S.W.2d 576, 577 (Tex. App.-Houston [1st Dist.] 1985, no pet.).

Yet, only the county where the death occurred is authorized or required to pay the physician's fee for conducting the autopsy, if a fee is assessed. See TEX. CODE CRIM. PROC. ANN. art. 49.10(g) (Vernon Supp. 1999) ("commissioners court shall pay a reasonable fee"). Under chapter 49 of the Code of Criminal Procedure, a county's responsibility to pay for, and a justice's authority to order, an inquest and autopsy hinges upon the location where the death occurred. Chapter 49 does not provide an alternative scheme for a situation in which another county with venue desires to prosecute the apparent homicide.

Consequently, the county where the death occurred may not contract away its duty to conduct and pay for the autopsy. Conversely, a county has no authority to conduct or pay for an autopsy if the death occurred in another county. See Tex. Att'y Gen. LO-94-060, at 2. And because the Interlocal Cooperation Act does not authorize a county to perform a governmental function or service for another county where the nonperforming county is not authorized to perform the task itself, Tex. Att'y Gen. Op. No. JM-1197 (1990) at 8, neither county may contract to do that which it otherwise lacks authority to do.

SUMMARY

A county may not contract under the Interlocal Cooperation Act, TEX. GOV'T CODE ANN. ch. 791 (Vernon 1994 & Supp. 1999), to charge for autopsies performed under chapter 49 of the Code of Criminal Procedure on residents of neighboring counties who die in the former county's hospital. Nor may a county contract to conduct or pay for autopsies ordered under chapter 49 of the Code of Criminal Procedure for its own residents who die in a neighboring county hospital.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General