Can a Texas county judge hold a death inquest when the local justice of the peace isn't available?

Texas AG Opinion JC-0083: A County Judge May Not Conduct a Death Inquest

Plain-English summary

Red River County had only one justice of the peace. When that justice of the peace was unavailable to conduct an inquest into a death, the county judge had been notified and had been conducting the inquests himself. The Red River District and County Attorney asked the Attorney General whether the county judge was actually authorized to do that.

The opinion said no. Article 49.07(c) of the Code of Criminal Procedure tells the physician or peace officer who must report a death to notify "the nearest available justice of the peace, municipal court judge, county judge, or judge of the county court at law" when the precinct's own justice of the peace is unavailable. The opinion read that as a notification rule, not a grant of authority. Being on the list of officials who may be notified did not impliedly empower any of them to conduct the inquest. Public officers have only the powers expressly given to them or necessarily implied, and nothing in the inquest statutes gave that power to anyone but a justice of the peace.

The history of the statute reinforced the point. Before 1987, article 49.01 expressly let a county judge (and other listed officials) conduct an inquest when the local justice of the peace was unavailable. In 1987 the legislature deleted that language. When a legislature amends a statute by removing words, courts presume it meant to change the law. The opinion acknowledged that chapter 49 is "problematic" in places, with provisions that hint other officials might conduct inquests and a strong emphasis on starting the inquest immediately, but it concluded none of that overcame the plain language. The bottom line: when the justice of the peace is unavailable, the county judge must appoint a temporary justice of the peace under section 27.055(b) of the Government Code, who then conducts the inquest.

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

What is an inquest?
Under article 49.01(2), an inquest is an investigation into the cause and circumstances of a person's death, and a determination, with or without a formal court hearing, of whether the death was caused by an unlawful act or omission. In certain circumstances an inquest must be conducted into a death occurring in the county.

Why is the county judge notified at all if he can't conduct the inquest?
Article 49.07(c) is a reporting rule. It lets the person who must report a death satisfy the reporting requirement (and avoid the Class C misdemeanor for failing to report) by notifying an alternate official when the precinct justice of the peace is unavailable. The opinion held that notification authority is not the same as authority to conduct the inquest.

So what is the county judge supposed to do?
According to the opinion, a county judge (or justice of the peace) who receives the report may appoint a temporary justice of the peace under section 27.055(b) of the Government Code to conduct the inquest. A municipal court judge or county-court-at-law judge who receives the report may forward it to an official with appointment authority.

Why did the answer turn on a 1987 amendment?
Before 1987, article 49.01 expressly authorized a county judge and other officials to conduct an inquest when the local justice of the peace was unavailable. The legislature deleted that authorizing language in 1987. The opinion applied the rule that deleting statutory language is presumed to change the law, so the alternate officials no longer had power to conduct inquests.

Background and statutory framework

Chapter 49, subchapter A of the Code of Criminal Procedure sets out the duties justices of the peace perform during an inquest. Article 49.01(2) defines "inquest," and article 49.04(a) requires an inquest in certain deaths occurring in the county. Article 49.07(a), (b) requires the physician or person in possession of the body and a peace officer to immediately notify the justice of the peace serving the precinct where the body was found; article 49.07(c) directs notification of the nearest available justice of the peace, municipal court judge, county judge, or county-court-at-law judge if that justice of the peace is unavailable; and article 49.07(d) makes a knowing or intentional failure to notify a Class C misdemeanor.

The opinion reaffirmed Attorney General Letter Opinion LO-97-101, which had concluded that a municipal judge has no authority to conduct an inquest under article 49.07(c). Construing a clear and unambiguous statute to effect its plain meaning (Boykin v. State, a Texas Court of Criminal Appeals decision), the opinion found nothing in article 49.07 or elsewhere that authorizes any official but a justice of the peace to conduct the inquest, citing the principle that public officers possess only powers expressly conferred or necessarily implied (Opinion O-6640 (1945)). It then traced the 1987 amendment that deleted the former article 49.01 language authorizing alternate officials (Act of May 21, 1987, 70th Leg., R.S., ch. 529, § 1), invoking the canon that deleting statutory language is presumed to change the law and citing a line of Texas cases including Friedrich Air Conditioning & Refrigeration Co. v. Bexar Appraisal Dist., Buckner Glass & Mirror, Inc. v. T.A. Pritchard Co., American Sur. Co. v. Antell Co., and others, while noting the contrary example in Jones v. Fowler. The opinion candidly described tensions within chapter 49 (no instructions for the notified officials, the statute's emphasis on immediacy, and provisions like articles 49.09(a) and 49.15(a) that refer to inquests conducted by persons other than justices of the peace), but held none overcame the plain language. It concluded that the county judge must appoint a temporary justice of the peace under section 27.055(b) of the Government Code.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. ch. 49, subch. A; art. 49.01(2); art. 49.04(a); art. 49.07(a), (b), (c), (d); art. 49.09(a); art. 49.15(a) (Vernon Supp. 1999)
• Tex. Code Crim. Proc. Ann. art. 49.01 (Vernon 1979) (former version)
• Tex. Gov't Code Ann. § 27.055(b) (Vernon Supp. 1999)
• Act of May 21, 1987, 70th Leg., R.S., ch. 529, § 1, 1987 Tex. Gen. Laws 2138, 2144-45

Cases:

• Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)
• Friedrich Air Conditioning & Refrigeration Co. v. Bexar Appraisal Dist., 762 S.W.2d 763 (Tex. App.-San Antonio 1988, no writ)
• Buckner Glass & Mirror, Inc. v. T.A. Pritchard Co., 697 S.W.2d 712 (Tex. App.-Corpus Christi 1985, no writ)
• American Sur. Co. v. Antell Co., 36 S.W.2d 715 (Tex. 1931)
• Schorr v. Leissner, 659 S.W.2d 752 (Tex. App.-Corpus Christi 1983), writ ref'd n.r.e., 668 S.W.2d 686 (Tex. 1984)
• Travenol Lab., Inc. v. Bandy Lab., Inc., 608 S.W.2d 308 (Tex. Civ. App.-Waco 1980, writ ref'd n.r.e.)
• Johnson v. McDaniel, 461 S.W.2d 198 (Tex. Civ. App.-Eastland 1970, writ ref'd n.r.e.)
• Adams v. Bidu, 83 S.W.2d 420 (Tex. Civ. App.-Eastland), rev'd on other grounds, 84 S.W.2d 693 (Tex. 1935) (per curiam)
• Jones v. Fowler, 969 S.W.2d 429 (Tex. 1998) (per curiam)

Attorney General opinions referenced: LO-97-101; O-6640 (1945).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0083
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0083.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 20, 1999

The Honorable Jack Herrington
Red River District and County Attorney
P.O. Box 364
Clarksville, Texas 75426

Opinion No. JC-0083

Re: Whether a county judge may conduct an inquest when the appropriate justice of the peace is unavailable to do so (RQ-0010)

Dear Mr. Herrington:

Article 49.07(c) of the Code of Criminal Procedure directs a person who is required to notify the local justice of the peace of a death requiring an inquest to instead notify the county judge or another listed official when the appropriate justice of the peace is unavailable. You ask whether this provision impliedly authorizes the county judge to conduct the inquest. Consistently with our conclusion in Attorney General Letter Opinion No. 97-101, we conclude it does not. Accordingly, a county judge may not conduct an inquest.

Chapter 49, subchapter A of the Code of Criminal Procedure prescribes the "[d]uties performed by justices of the peace" during the course of an inquest. See TEX. CODE CRIM. PROC. ANN. ch. 49, subch. A (Vernon Supp. 1999). An "inquest" is "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." Id. art. 49.01(2). In certain circumstances, an inquest must be conducted into the death of a person who dies in the county. See id. art. 49.04(a). When a death requiring an inquest occurs, the physician or person who possesses the body and a peace officer who has been notified of the death "immediately" shall "notify the justice of the peace who serves the precinct in which the body was found." Id. art. 49.07(a), (b). If that justice of the peace is unavailable, the person in possession or the peace officer must "notify the nearest available justice of the peace, municipal court judge, county judge, or judge of the county court at law of the county in which the death occurred or in which the body was found." Id. art. 49.07(c). A person who is required to notify the proper official but who intentionally or knowingly fails to do so commits a Class C misdemeanor. Id. art. 49.07(d).

You indicate that Red River County has only one justice of the peace. See Letter from Honorable Jack Herrington, Red River District and County Attorney, to Attorney General's Office, Opinion Committee (Jan. 6, 1999) (on file with Opinion Committee). When the justice of the peace is unavailable to conduct an inquest, you continue, the county judge is notified and has been conducting inquests. See id. You ask whether the county judge is authorized to do so.

Under Attorney General Letter Opinion No. 97-101, the county judge is not authorized to conduct inquests. As that opinion concludes, a municipal judge has no authority to conduct an inquest under article 49.07(c). See Tex. Att'y Gen. LO-97-101, at 2. Thus, article 49.07(c) does not implicitly authorize an official to conduct the inquest simply because the official is one who may be notified when the appropriate justice of the peace is unavailable. Rather, article 49.07(c) allows a person who must report a death requiring an inquest under article 49.07(a), (b) to comply with the reporting requirement and thereby avoid criminal liability. See id.; see also TEX. CODE CRIM. PROC. ANN. art. 49.07(d) (Vernon Supp. 1999) (making knowing or intentional failure to notify Class C misdemeanor). Under article 49.07(c), a "county judge or justice of the peace who receives a report may then exercise his or her statutory authority to provide for a temporary justice of the peace to conduct the inquest, while a municipal court judge or judge of a county court of law may forward the report to an officer with such authority." Tex. Att'y Gen. LO-97-101, at 2.

The plain language of article 49.07(c) compels us to affirm the conclusion of Attorney General Letter Opinion No. 97-101. We must construe a clear and unambiguous statute to effectuate the statute's plain meaning. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). On its face, article 49.07(c) requires a physician or a peace officer to notify an official other than the justice of the peace serving the precinct in which the body is located when that justice is unavailable. Nothing in article 49.07 or in any other statute explicitly or implicitly authorizes any official but a justice of the peace to conduct the inquest. See Tex. Att'y Gen. Op. No. O-6640 (1945) at 2 (stating that public officers possess those powers expressly conferred upon them or necessarily implied therefrom).

Furthermore, prior to 1987, article 49.01 of the Code of Criminal Procedure explicitly permitted a county judge (and other listed officials) to conduct an inquest in the event the local justice of the peace was unavailable: "The inquests authorized and required by this Article shall be held by the justice of the peace of the precinct in which the death occurred, but in the event the justice of the peace of such precinct is unavailable, or shall fail or refuse to act, then such inquest shall be conducted by the nearest available justice of the peace, corporation court judge, county judge or judge of the county court at law of the county in which the death occurred." TEX. CODE CRIM. PROC. ANN. art. 49.01 (Vernon 1979) (emphasis added), amended by Act of May 21, 1987, 70th Leg., R.S., ch. 529, § 1, 1987 Tex. Gen. Laws 2138, 2144-45. In 1987 the legislature deleted the terminology authorizing an alternate official to conduct an inquest. See Act of May 21, 1987, 70th Leg., R.S., ch. 529, § 1, 1987 Tex. Gen. Laws 2138, 2144-45; see also HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1104, 70th Leg., R.S. (1987) (stating that 1987 bill proposes some substantive changes to inquest statutes). When the legislature amends a law by deleting language, a court will presume that the legislature intended to change the law. See Friedrich Air Conditioning & Refrigeration Co. v. Bexar Appraisal Dist., 762 S.W.2d 763, 767 (Tex. App.-San Antonio 1988, no writ) ("it is not logical to accept that the legislature omitted the 'rendered' language without recognizing that [it] had previously constituted an integral substantive component of the law"); Buckner Glass & Mirror, Inc. v. T.A. Pritchard Co., 697 S.W.2d 712, 714 (Tex. App.-Corpus Christi 1985, no writ) (effectuating legislature's deletion of words "should finally obtain judgment"); see also American Sur. Co. v. Antell Co., 36 S.W.2d 715, 719 (Tex. 1931) (stating that when legislature amends law, it is presumed that legislature intended to change law); Schorr v. Leissner, 659 S.W.2d 752, 754 (Tex. App.-Corpus Christi 1983), writ ref'd n.r.e., 668 S.W.2d 686 (Tex. 1984) (same); Travenol Lab., Inc. v. Bandy Lab., Inc., 608 S.W.2d 308, 314 (Tex. Civ. App.-Waco 1980, writ ref'd n.r.e.) (same); Johnson v. McDaniel, 461 S.W.2d 198, 201 (Tex. Civ. App.-Eastland 1970, writ ref'd n.r.e.) (same); Adams v. Bidu, 83 S.W.2d 420, 424 (Tex. Civ. App.-Eastland) (same), rev'd on other grounds, 84 S.W.2d 693 (Tex. 1935) (per curiam). But see Jones v. Fowler, 969 S.W.2d 429, 433 (Tex. 1998) (per curiam) (concluding that legislature did not intend substantive change when it deleted "immediately" from "immediately preceding" in child-custody statute). Thus, only a justice of the peace, including a temporary justice of the peace, may conduct an inquest.

Chapter 49, subchapter A of the Code of Criminal Procedure, of which article 49.07(c) is a part, is, however, problematic. First, while article 49.07(c) lists the officials that may be notified in the event the appropriate justice of the peace is unavailable, neither it nor any other provision instructs these officials how to proceed. As this office suggested in Attorney General Letter Opinion No. 97-101, only a county judge or a justice of the peace who receives a report of a death requiring an inquest may appoint a temporary justice of the peace to conduct the necessary inquest. Tex. Att'y Gen. LO-97-101, at 2. The other officials listed in article 49.07(c), municipal court judge and judge of the county court at law, only may notify a county judge or justice of the peace of the need to appoint a temporary justice. Second, the statute emphasizes the immediacy with which the inquest must be begun, perhaps to expedite moving of the body or to ensure the accuracy of chemical analyses of body fluids, see id. arts. 49.05(e), .10(i), (i), .11 (prohibiting moving body without justice's authorization and allowing for chemical analyses). See, e.g., id. arts. 49.07(a), (b), .18(a) (requiring notification immediately or as soon as practicable). Multiple telephone calls and the appointment of a temporary justice of the peace may hinder timely commencement of the inquest. Third, other provisions in chapter 49, subchapter A recognize that officials other than justices of the peace may conduct inquests. Article 49.09(a), for example, permits a justice of the peace to direct the disinterment of a body if "an authorized person has not conducted an inquest." Likewise, article 49.15(a) requires the making of an inquest record for each inquest conducted by a justice of the peace "or other person authorized under this subchapter to conduct an inquest." See also TEX. CODE CRIM. PROC. ANN. arts. 49.16, .22(a), .23(a), (c) (Vernon Supp. 1999). None of these reasons overcome the plain language of article 49.07(c).

Consequently, a county judge may not conduct inquests. Rather, when the appropriate justice of the peace is unavailable, the county judge must appoint a temporary justice of the peace in accordance with section 27.055(b) of the Government Code. See TEX. GOV'T CODE ANN. § 27.055(b) (Vernon Supp. 1999).

SUMMARY

A county judge may not conduct an inquest. Rather, as this office indicated in Attorney General Letter Opinion No. 97-101, when the appropriate justice of the peace is unavailable, the county judge must appoint a temporary justice of the peace to conduct the inquest.

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