Can the public see a provisional autopsy report held by a Texas justice of the peace?

Plain-English summary

A county attorney asked whether a "provisional autopsy report" held by a justice of the peace had to be released. The report concerned a deceased inmate at a Texas Department of Criminal Justice facility, and at the time of the request there was no final autopsy report yet, only the provisional one. The Open Records Division had told the county attorney that the Public Information Act does not apply to records maintained by the judiciary, so the justice need not release the report under that Act. The Attorney General agreed on that point but concluded the public could still inspect the report under a different statute.

A justice of the peace is part of the judiciary, so chapter 552 of the Government Code (the Public Information Act) does not govern access to records the justice maintains. But that did not end the inquiry. The opinion walked through how the inquest system works: when an inmate dies in prison, the justice of the peace must conduct an inquest unless narrow exceptions apply, and may order an autopsy. The autopsy report becomes part of the inquest record, which must be kept in the justice's office and made available to appropriate officials. A "provisional autopsy report" is not a defined statutory term; in practice it captures early findings issued before tests like tissue cultures and toxicology are complete, while the final report adds the rest.

The opinion then turned to section 27.004 of the Government Code, which requires each justice of the peace to keep the dockets, books, and papers filed in justice court "subject to the inspection of any interested party at reasonable times." Earlier rulings construed that statute to let the public inspect autopsy reports a justice of the peace maintains, and the statute gives no basis for treating a provisional report differently from a final one. The opinion noted that Rule 12 of the Rules of Judicial Administration, which governs access to some court records, did not apply because access to these autopsy records is controlled by statute. So both provisional and final autopsy reports kept by the justice of the peace are subject to public inspection under section 27.004, and the justice must make the provisional report available.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Justices of the peace and county attorneys (what the opinion held): The opinion concluded that although the Public Information Act does not reach a justice of the peace's records, section 27.004 of the Government Code requires the justice to make both provisional and final autopsy reports available to an interested party for inspection.

Members of the public and the press (what the opinion held for them): The opinion treated autopsy reports in a justice of the peace's inquest file as inspectable by an interested party under section 27.004, with no special rule withholding a provisional report pending the final one.

Common questions

Does the Texas Public Information Act cover a justice of the peace's records?
No. The opinion explained that the Act does not apply to records maintained by the judiciary, which includes a justice of the peace.

So is a provisional autopsy report still public?
The opinion concluded yes, under section 27.004 of the Government Code, which makes the papers a justice of the peace keeps subject to inspection by an interested party at reasonable times.

Can a justice withhold the provisional report until the final one is ready?
The opinion found no basis in section 27.004 to distinguish a provisional report from a final one, so the provisional report must be made available.

What is a "provisional autopsy report"?
The opinion explained the term is not statutorily defined but is used in practice for early findings issued before tests such as tissue cultures and toxicology are complete; the final report adds those results.

Are autopsy reports from a county medical examiner treated the same way?
The opinion noted in a footnote that, unlike one maintained by a justice of the peace, an autopsy report by a county medical examiner is subject to chapter 552 of the Government Code.

Background and statutory framework

The Public Information Act does not apply to the judiciary; access to information maintained by the judiciary is controlled by other laws and rules. Tex. Gov't Code Ann. § 552.003(1)(B), § 552.0035 (Vernon 1994 & Supp. 2001); see id. § 552.022(a)(1) (Vernon Supp. 2001). A county attorney may request an opinion from the Attorney General. Id. § 402.043. When an inmate dies in prison, the justice of the peace must conduct an inquest unless narrow exceptions apply, and may order an autopsy, which becomes part of the inquest record kept in the justice's office. Tex. Code Crim. Proc. Ann. ch. 49 (Vernon 1979 & Supp. 2001); id. art. 49.15(a). An "autopsy report" is defined to include the postmortem examination report and toxicology and related reports. Tex. Health & Safety Code Ann. § 671.011(a) (Vernon Supp. 2001). The term "provisional autopsy report" is not defined in chapter 49 or chapter 671; courts and practice use "preliminary" or "provisional" reports for early findings. Pachecano v. State, 881 S.W.2d 537, 542 (Tex. App.-Fort Worth 1994, no writ); Hayden v. Ins. Co. of N. Am., 490 P.2d 454, 457 (Wash. Ct. App. 1971). Rule 12 of the Rules of Judicial Administration governs access to some court records but does not apply where access is controlled by statute. Tex. R. Jud. Admin. 12.2(d), 12.3(a)(4). Section 27.004(a) requires a justice of the peace to keep the papers filed in justice court subject to inspection by any interested party at reasonable times, which has been construed to allow public inspection of autopsy reports the justice maintains. Tex. Gov't Code Ann. § 27.004(a) (Vernon 1988).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 552.003(1)(B) (Vernon 1994 & Supp. 2001)
• Tex. Gov't Code Ann. § 552.0035 (Vernon 1994 & Supp. 2001)
• Tex. Gov't Code Ann. § 552.022(a)(1) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. § 402.043
• Tex. Gov't Code Ann. § 27.004(a) (Vernon 1988)
• Tex. Code Crim. Proc. Ann. ch. 49 (Vernon 1979 & Supp. 2001)
• Tex. Code Crim. Proc. Ann. art. 49.15(a) (Vernon Supp. 2001)
• Tex. Health & Safety Code Ann. § 671.011(a) (Vernon Supp. 2001)
• Tex. R. Jud. Admin. 12.2(d)
• Tex. R. Jud. Admin. 12.3(a)(4)

Cases:

• Pachecano v. State, 881 S.W.2d 537 (Tex. App.-Fort Worth 1994, no writ)
• Hayden v. Ins. Co. of N. Am., 490 P.2d 454 (Wash. Ct. App. 1971)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0422
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0422.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

October 15, 2001

The Honorable Edwin E. Powell, Jr.
Coryell County Attorney
P.O. Box 796
Gatesville, Texas 76528

Opinion No. JC-0422

Re: Release of "provisional autopsy report" maintained by a justice of the peace (RQ-0380-JC)

Dear Mr. Powell:

The Justice of the Peace of Coryell County has received a request under the Texas Public Information Act, chapter 552 of the Texas Government Code, for a "provisional autopsy report" about a deceased inmate at a local facility of the Texas Department of Criminal Justice. At the time of the request, there was no final autopsy report, and only the provisional autopsy report was available.[1] You requested a ruling on this matter from the Open Records Division of this office. That division informed you that the Public Information Act does not apply to records maintained by the judiciary and that the justice of the peace need not release the provisional autopsy report under that Act.[2] See TEX. GOV'T CODE ANN. §§ 552.003(1)(B), .0035 (Vernon 1994 & Supp. 2001) (judiciary not subject to Act; access to information maintained by judiciary controlled by other laws and rules).[3] However, because section 402.043 of the Government Code authorizes a county attorney to request legal opinions from this office, we can answer your question in an Attorney General Opinion. A justice of the peace is not subject to the Public Information Act, therefore, the provisions of that act cited in your brief do not apply to a provisional autopsy report. See TEX. GOV'T CODE ANN. §§ 552.022(a)(1) (Vernon Supp. 2001) (availability of a completed report); 552.108 (exception for certain law enforcement and prosecutorial information). This does not end our inquiry as to whether the provisional autopsy report is subject to public inspection. We conclude that a member of the public may inspect the provisional autopsy report pursuant to section 27.004 of the Government Code. See id. § 27.004(a) (Vernon 1988) (records subject to inspection by interested party at reasonable times).

[1] Letter from Honorable Edwin E. Powell, Jr., Coryell County Attorney, to Open Records Division, Office of the Attorney General (Feb. 21, 2001) (on file with Opinion Committee).

[2] Letter from Stephan P. Agan, Assistant Attorney General, Open Records Division, Office of the Attorney General, to Honorable Edwin E. Powell, Jr., Coryell County Attorney (Apr. 27, 2001) (on file with Opinion Committee) [designated as OR2001-1734].

[3] Unlike an autopsy report maintained by a justice of the peace, the report of an autopsy conducted by a county medical examiner is subject to chapter 552 of the Government Code. See TEX. CODE CRIM. PROC. ANN. art. 49.25, § 11 (Vernon Supp. 2001).

The justice of the peace conducted an inquest into the death of an inmate in a Department of Criminal Justice facility located in Coryell County, and an autopsy was performed in connection with that proceeding. See generally TEX. CODE CRIM. PROC. ANN. ch. 49 (Vernon 1979 & Supp. 2001) (inquests upon dead bodies), id. art. 49.10(e) (Vernon Supp. 2001) (justice of the peace shall order an autopsy if necessary to determine or confirm cause of death, if prosecutor directs justice to do so, or under certain circumstances where deceased is younger than six years of age). 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 counties that do not have a medical examiner's office, a justice of the peace conducts inquests pursuant to chapter 49, subchapter A of the Code of Criminal Procedure.[4]

When an inmate dies in prison, the justice of the peace in the county must conduct an inquest into that death, unless the inmate died of natural causes while attended by a physician or a registered nurse or was executed. See id. art. 49.04(a)(1); see also TEX. GOV'T CODE ANN. § 501.055(b) (Vernon 1998). If an autopsy is necessary, the justice orders a physician to perform it. See TEX. CODE CRIM. PROC. ANN. art. 49.10(f) (Vernon Supp. 2001). The provisional autopsy report you have sent shows that the autopsy was performed at the University of Texas Medical Branch in Galveston. The Texas Department of Criminal Justice has submitted a brief accompanied by samples of provisional and final autopsy reports concerning two deceased inmates from its facilities, and these autopsies were also performed at the University of Texas Medical Branch in Galveston.[5]

The inquest record prepared by the justice must include the autopsy report, if an autopsy was performed. Id. art. 49.15(a), (b)(8). "All papers of the inquest record must . . . be maintained in the office of the justice of the peace and be made available to the appropriate officials upon request." Id. art. 49.15(a). The justice of the peace certifies a copy of the inquest summary report and delivers it in a sealed envelope to the clerk of the district court. Id. art. 49.15(d). You wish to know whether a "provisional" autopsy report should be made available to the public, or whether it should be withheld pending receipt of the final autopsy report.

[4] Any county may appoint a medical examiner, whose qualifications, duties, and records are governed by subchapter B, Code of Criminal Procedure.

[5] Brief from Leonard W. Peck, Jr., Assistant General Counsel, Texas Department of Criminal Justice, to Honorable John Cornyn, Texas Attorney General (June 4, 2001) (on file with Opinion Committee) [hereinafter Peck Brief].

Chapter 49 of the Code of Criminal Procedure defines "autopsy" as "a post mortem examination of the body of a person, including X-rays and an examination of the internal organs and structures after dissection, to determine the cause of death or the nature of any pathological changes that may have contributed to the death." Id. art. 49.01(1) (Vernon Supp. 2001). Chapter 671 of the Health and Safety Code, subchapter B, which states procedures for filing and disclosure of autopsy reports, defines an "autopsy report" to include:

            (1) the report of the postmortem examination of the body of a person, including x-rays and photographs taken during the actual postmortem examination; and

            (2) the toxicology report, if any, and other reports that involve an examination of the internal organs and structures of the body after dissection.

TEX. HEALTH & SAFETY CODE ANN. § 671.011(a) (Vernon Supp. 2001); see also id. § 671.011(b) (autopsy report does not include investigative reports and other documents that physician performing the autopsy reviews in connection with determining cause of death).

The term "provisional autopsy report" is not defined or used in chapter 49 of the Code of Criminal Procedure or in chapter 671 of the Health and Safety Code, nor do we find this term elsewhere in the Texas statutes. But see Pachecano v. State, 881 S.W.2d 537, 542 (Tex. App.-Fort Worth 1994, no writ) (referring to "preliminary autopsy report" and "autopsy report"); 25 TEX. ADMIN. CODE § 405.271(c)(7) (2001) (death/discharge summary of person served by Texas Mental Health & Mental Retardation Facility shall include "preliminary autopsy findings," if available). The brief from the Department of Criminal Justice explains that provisional autopsy reports "are issued when some information about a cause of death is known, but important information is not yet available." Peck Brief, supra note 5, at 2. For example, tissue cultures and chemical scans may not have been completed in time for the provisional autopsy report. Id.; see also Hayden v. Ins. Co. of N. Am., 490 P.2d 454, 457 (Wash. Ct. App. 1971) (provisional autopsy report is routinely made on the basis of initial studies, while complete report consists of initial findings as well as any other studies that may help establish cause of death). Death certificates, which must be filed no later than 10 days after the date of the death, see TEX. HEALTH & SAFETY CODE ANN. § 193.003(a) (Vernon 2001), sometimes show the cause of death stated in the provisional autopsy report. Peck Brief, supra note 5, at 3. If the final autopsy report shows a different cause of death, the death certificate may be amended. See TEX. HEALTH & SAFETY CODE ANN. § 191.028 (Vernon 2001). Thus, the term "provisional autopsy report" is used in the practice of postmortem exams to describe the early findings before the complete findings are available.

Rule 12 of the Texas Rules of Judicial Administration provides for public access to records maintained by a court in its regular course of business that do not pertain to its adjudicative function. See TEX. R. JUD. ADMIN. 12.2(d), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. F app. (Vernon Supp. 2001). However, this rule does not apply to records to which access is controlled by a statute or provision of law. See id. 12.3(a)(4). This is the case with autopsy records held by the justice court. Thus, we need not determine whether a preliminary autopsy report is a record maintained by the justice court "in its regular course of business . . . not pertaining to its adjudicative function." See id. 12.2(d).

Section 27.004 of the Government Code provides that each justice of the peace shall "safely keep all dockets, books, and papers transmitted to the justice by the justice's predecessors in office, and all papers filed in a case in justice court, subject to the inspection of any interested party at reasonable times." TEX. GOV'T CODE ANN. § 27.004(a) (Vernon 1988). This provision has been construed to allow members of the public to inspect autopsy reports maintained by the justice of the peace. See Tex. Att'y Gen. ORD-25 (1974) (construing prior codification of section 27.004 of Government Code); see also Tex. Att'y Gen. ORD-521 (1989) at 3 (meaning of "interested person" in statute on access to public record). Section 27.004 of the Government Code provides no basis for distinguishing between a provisional and a final autopsy report or for withholding a provisional autopsy report. Both reports are records maintained by the justice of the peace subject to public inspection pursuant to section 27.004 of the Government Code. Accordingly, the justice of the peace must make the provisional autopsy report available for inspection.

                                     SUMMARY

           Although the Public Information Act, Texas Government Code chapter 552, does not apply to records of the judiciary, such records may be available to the public under other laws. A "provisional autopsy report" prepared in connection with an inquest by a justice of the peace is not available under the Public Information Act, but members of the public may inspect it pursuant to section 27.004 of the Government Code.

                                         JOHN CORNYN
                                         Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee