Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 28,2005

The Honorable David K. Walker Opinion No. GA-03 89

Montgomery County Attorney

207 West Phillips Re: Whether section 693.002 of the Health and

Conroe, Texas 77301 Safety Code requires a justice of the peace to

allow an organ procurement organization to

remove organs of a deceased person before the

justice of the peace has determined whether an

autopsy should be performed (RQ-0365GA)

Dear Mr. Walker:

Section 693.002 of the Health and Safety Code addresses justices of the peace and other

officials’ authority over organ and tissue removal from a decedent who died under circumstances

requiring an inquest. See TEX.HEALTH& SAFETY CODE ANN. 9 693.002 (Vernon Supp. 2005). You

ask several questions relating to whether section 693.002 requires a justice of the peace to allow an

organ procurement organization to remove organs of a deceased person before the justice of the

peace has determined whether an autopsy should be performed.’

I. Backmound

Your questions assert that there may be a conflict between section 693.002 of the Health and

Safety Code and provisions in chapter 49 of the Code of Criminal Procedure regarding inquests and

autopsies and that if there is a conflict the latter must prevail. See Request Letter, supra note 1, at

6. Under chapter 49, the term “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.” TEX. CODE CRIM. PROC. ANN. art.

49.01(2) (Vernon Supp. 2005). An “autopsy” is “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(l).

‘See Letter from Honorable David K. Walker, County Attorney, Montgomery County, to Honorable Greg

Abbott, Attorney General of Texas (July 1, 2005) (on file with Opinion Committee, also nvaiZable at

http://www.oag.state.tx.us) [hereinafter Request Letter].

The Honorable David IS. Walker - Page 2 (GA-0389)

Subchapter A of chapter 49 of the Code of Criminal Procedure, which governs a death

occurring in a county that does not have a medical examiner’s office or that is not part of a medical

examiner’s district, see id. art. 49.02, applies in your county, see Request Letter, supra note 1, at 1.

Subchapter A requires a justice of the peace to perform an inquest when a person dies in the county

under the circumstances listed in article 49.04. See TEX. CODECRIM.PROC.ANN. art.49.04 (Vernon

Supp. 2005). A physician who has possession of the body of a person whose death requires an

inquest “shall immediately notify the justice of the peace who serves the precinct in which the body

. . . was found.” Id. art. 49.07(a); see also id. art. 49.04(b)-(c). If that justice of the peace is not

available, the physician must notify the nearest available justice of the peace in the county or, if no

justice of the peace is available, the county judge. See id. art. 49.07(c)(1)-(2). It is a class C

misdemeanor to intentionally or knowingly fail to give notice. See id. art. 49.07(d).

A justice of the peace “shall conduct an inquest immediately or as soon as practicable after

the justice receives notification of the death.” Id. art. 49.05(a). Article 49.10 addresses a justice of

the peace’s authority and duties with respect to autopsies and does not require a justice of the peace

to order an autopsy in every case in which an inquest is required. Section 49.10(a) generally

provides that “[a]t his discretion, a justice of the peace may obtain the opinion of a county health

officer or a physician concerning the necessity of obtaining an autopsy in order to determine or

confirm the nature and cause of a death.” Id. art. 49.1 O(a).2 Section 49.10(c) provides that “for each

body that is the subject of an inquest by a justice of the peace, the justice, in the justice’s discretion,

shall” either “direct a physician to perform an autopsy” or “certify that no autopsy is necessary.” Id.

art. 49.1 O(C).~ Article 49.10(e) requires a justice of the peace to order an autopsy in certain

circumstances:

(e) A justice of the peace shall order an autopsy performed on

a body if:

(1) the justice determines that an autopsy is necessary to

determine or confirm the nature and cause of death;

(2) the deceased was a child younger than six years of age

and the death is determined under Section 264.5 14, Family Code, to

be unexpected or the result of abuse or neglect; or

‘See also TEX. CODE GRIM. PROC. ANN. art. 49.10(b) (Vernon Supp. 2005) (“The commissioners court of the

county shall pay a reasonable fee for a consultation obtained by a justice of the peace under Subsection (a) of this

article.“).

3See also id. art. 49.1 O(d) (“A justice of the peace may not order a person to perform an autopsy on the body

of a deceased person whose death was caused by Asiatic cholera, bubonic plague, typhus fever, or smallpox. A justice

of the peace may not order a person to perform an autopsy on the body of a deceased person whose death was caused

by a communicable disease during a public health disaster.“).

The Honorable David K. Walker - Page 3 (GA-0389)

(3) directed to do so by the district attorney, criminal

district attorney, or, if there is no district or criminal district attorney,

the county attorney.

Id. art. 49.10(e).4 In addition, “[i]f a justice of the peace determinesthat a complete autopsy is

unnecessary to confirm or determine the cause of death, the justice may order a physician to take or

remove from a body” samples to determine the nature and cause of death. Id. art. 49.1 O(i).

Section 693.002 of the Health and Safety Code governs removal of organs and tissue from

a decedent who died in circumstances requiring an inquest. See TEX.HEALTH& SAFETYCODEANN.

9 693.002 (Vernon Supp. 2005). Section 693.002(a) generally provides that

[o]n a request from a qualified organ procurement organization, as

defined in Section 692.002, the medical examiner, justice of the

peace, county judge, or physician designated by the justice of the

peace or county judge may permit the removal of organs from a

decedent who died under circumstances requiring an inquest by the

medical examiner, justice of the peace, or county judge if consent is

obtained pursuant to Section 693.003.

Id. 0 693.002(a)( 1). Section 693.002(a)( 1) refers to “a qualified organ procurement organization”

as defined by section 692.002 of the Health and Safety Code, which is a provision of the Texas

Anatomical Gift Act, Health and Safety Code chapter 692,5 and section 693.002 uses that term

throughout section 693.002(a). See id. 4 693.002(a). We use the term “organ procurement

organization” or “organization.” Section 693.002(a)(2)-(6) provides procedures for the timely

removal of organs that also take into consideration any need for an autopsy. See id. 3 693.002(a)(2)-

(6).6 Section 693.002(b)-(c) addresses tissue removal and is not relevant to most of your questions,

which generally pertain to organ as opposed to tissue removal. See Request Letter, supra note 1, at

6; TEX. HEALTH& SAFETYCODE ANN. 0 693.002(b)-(c) (Vernon Supp. 2005).

You ask us to address circumstances involving an organ donor who died under circumstances

that require a justice of the peace to conduct an inquest under article 49.04. See Request Letter,

supra note 1, at 6; see also TEX. CODE CRIM. PROC.ANN. art. 49.04 (Vernon Supp. 2005). You ask

4See also id. art. 49. IO(f) (“A justice of the peace shall request a physician to perform the autopsy.“).

‘See TEX. HEALTH& SAFETYCODEANN. 8 692.002(9) (Vernon 2003) (“‘Qualified organ or tissue procurement

organization’ means an organization that procures and distributes organs or tissues for transplantation, research, or other

medical purposes and that: (A) is affiliated with a university or hospital or registered to operate as a nonprofit

organization in this state for the primary purpose of organ or tissue procurement; and (B) if the organization is an organ

procurement organization, is certified to act as an organ procurement organization by the appropriate federal agency.“).

%ection 693.002(a)(7) provides that at the request of the medical examiner, the justice of the peace, county

judge, or designated physician, “the health care professional removing organs from a decedent who died under

circumstances requiring an inquest shall file” with the requesting official “a report detailing the condition of the organs

removed and their relationship, if any, to the cause of death.” Id. 3 693.002(a)(7) (Vernon Supp. 2005).

The Honorable David K. Walker - Page 4 (GA-0389)

us to assume that before the justice of the peace determined whether an autopsy was necessary, an

organ procurement organization sought to remove the organs of the deceased with the family’s

consent. See Request Letter, supra note 1, at 6; see also TEX. HEALTH & SAFETY CODE ANN. $0

693.003-.004 (Vernon 2003) (governing consent for organ and tissue removal). The justice of the

peace refused to allow the organization to remove the organs until the justice of the peace made a

decision “regarding the potential loss of evidence”; further, the justice ofthe peace “refused to attend

organ removal surgery because a decision regarding loss of evidence had not been made at the time

the surgery was scheduled to occur.” Request Letter , supra note 1, at 6.7

You ask the following questions:

1. Does the Health and Safety Code require the justice of the peace

to allow an organ procurement organization to procure the organs of

the deceased before the need for an autopsy has been determined?

2. Can the procurement of the organs occur before the justice of the

peace has determined whether procurement of the organs will

interfere with the course of the investigation?

3. Can the organ procurement organization require the justice of the

peace to make a decision regarding the removal of the organs at a

time and place determined by the organization or is this a function of

the justice court and subject to the court’s schedule and/or rules?

4. Does Section 693.002(a)(6) allow payment by the organization of

costs incurred that are necessary to aid and assist the justice of the

peace in making a determination that the organs or tissue will or will

not interfere with the course of an investigation?

5. Can the justice of the peace deny the removal of the organs or

tissue upon the request of the district attorney?

Request Letter, supra note 1, at 6.

‘In a supplemental letter, you state that a particular organ procurement organization sought a court order to

require a justice of the peace to comply with section 693.002 of the Health and Safety Code. See Letter from Honorable

David K. Walker, County Attorney, Montgomery County, to Honorable Greg Abbott, Attorney General of Texas (Aug.

2, 2005) (on file with Opinion Committee). It is the policy of this office to refrain from issuing an attorney general

opinion on a question we know is the subject of pending litigation. See Tex. Att’y Gen. Op. Nos. MW-205 (1980) at

1, V-29 1 (1947) at 5-6; Tex. Att’y. Gen. LA- 142 (1977) at 1. However, we understand that the matter to which you refer

is no longer pending. See Brief from Rusty Hardin, Rusty Hardin & Assoc., to Honorable Greg Abbott, Attorney General

of Texas, at 2-3 (Sept. 9,2005) (on file with Opinion Committee). We answer your questions in general terms and not

with respect to any particular situation.

The Honorable David K. Walker - Page 5 (GA-0389)

II. Analysis

A. Health and Safety Code Section 693.002(a) and the Code of Criminal Procedure

Your primary questions relate to the timing of a procedure to remove organs from a

decedent and the justice of the peace’s determination regarding whether an autopsy is necessary and

whether organ removal would interfere with the investigation. See id. Before answering your

specific questions, we examine the general scheme established by section 693.002(a) of the Health and

Safety Code’ and its relationship to subchapter A of chapter 49 of the Code of Criminal Procedure.

‘Section 693.002(a) provides in pertinent part:

(a)(l) On a request from a qualified organ procurement organization, as

defmed in Section 692.002, the medical examiner, justice of the peace, county

judge, or physician designated by the justice of the peace or county judge may

permit the removal of organs from a decedent who died under circumstances

requiring an inquest by the medical examiner, justice of the peace, or county judge

if consent is obtained pursuant to Section 693.003.

(2) If no autopsy is required, the organs to be transplanted shall be released

in a timely manner to the qualified organ procurement organization, as defmed in

Section 692.002, for removal and transplantation.

(3) If an autopsy is required and the medical examiner, justice of the peace,

county judge, or designated physician determines that the removal ofthe organs will

not interfere with the subsequent course of an investigation or autopsy, the organs

shall be released in a timely manner for removal and transplantation. The autopsy

will be performed in a timely manner following the removal of the organs.

(4) If the medical examiner is considering withholding one or more organs

of a potential donor for any reason, the medical examiner shall be present during the

removal of the organs. In such case, the medical examiner may request a biopsy of

those organs or deny removal of the anatomical gift. If the medical examiner denies

removal of the anatomical gift, the medical examiner shall explain in writing the

reasons for the denial. The medical examiner shall provide the explanation to:

(A) the qualified organ procurement organization; and

(B) any person listed in Section 693.004 who consented to the removal.

(5) If the autopsy is not being performed by a medical examiner and one or

more organs may be withheld, the justice of the peace, county judge, or designated

physician shall be present during the removal of the organs and may request the

biopsy or deny removal of the anatomical gift. If removal of the anatomical gift is

denied, the justice of the peace, county judge, or physician shall provide the written

explanation required by Subdivisions (4)(A) and (B).

(continued...)

The Honorable David K. Walker - Page 6 (GA-0389)

Section 693.002(a) of the Health and Safety Code specifically addresses organ removal by

an organ procurement organization when an inquest is required. See TEX. HEALTH& SAFETYCODE

ANN. 5 693.002(a) (Vernon Supp. 2005). In construing section 693.002(a), we must give effect to

the legislature’s intent. See TEX. GOV’T CODEANN. $0 3 11.02 1, .023 (Vernon 2005); Albertson ‘,s,

Inc. v. Sinclair, 984 S.W.2d 958,960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d

436, 438 (Tex. 1997). To do so, we must construe it according to its plain language. See In re

Canales, 52 S.W.3d 698,702 (Tex. 2001); RepublicBankDallas, N.A. v. Interkal, Inc., 691 S.W.2d

605, 607-08 (Tex. 1985). We must also construe its provisions in context, considering the statute

as a whole. See TEX. GOV’T CODE ANN. 6 3 11 .O11(a) (Vernon 2005) (words and phrases to be read

in context); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (“[W]e must always

consider the statute as a whole rather than its isolated provisions. We should not give one provision

a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to

such a construction standing alone.“).

As a threshold matter, we note that section 693.002(a) applies to medical examiners and

justices of the peace, and also to county judges and designated physicians. See TEX. HEALTH &

SAFETY CODE ANN. 0 693.002(a) (Vernon Supp. 2005). This is because, under the Code of Criminal

Procedure, in a county without a medical examiner an inquest must be conducted by a justice of the

peace or, if a justice of the peace is not available, the county judge. See TEX. CODE Cm. PROC.

ANN. arts. 49.02,49.07(b)-(c)(l)-(2) (V emon Supp. 2005). A justice of the peace or county judge

may consult with a physician about whether an autopsy is necessary and must designate a physician

to perform an autopsy. See id. arts. 49,07(c)(2), 49.10(a), (c)(l), (f). Given that you ask about

inquests conducted by justices of the peace, we address section 693.002(a) primarily with respect

to duties of a justice of the peace. See Request Letter, supra note 1, at 6.

Section 693.002(a) does not contain any provision stating that the procedure to remove

organs may not take place until the justice of the peace has determined whether an autopsy is

necessary. See TEX. HEALTH & SAFETY CODE ANN. 0 693.002(a) (Vernon Supp. 2005). Rather,

section 693.002(a)( 1) establishes that, if the family consents, a justice of the peace or other official

may permit removal of organs from a person who died under circumstances requiring an inquest.

‘(-continued)

(6) If, in performing the duties required by this subsection, the medical

examiner or, in those cases in which an autopsy is not performed by a medical

examiner, the justice of the peace, county judge, or designated physician is required

to be present at the hospital to examine the decedent prior to removal of the organs

or during the procedure to remove the organs, the qualified organ procurement

organization shall on request reimburse the county or the entity designated by the

county for the actual costs incurred in performing such duties, not to exceed $1,000.

Such reimbursements shall be deposited in the general fund of the county. The

payment shall be applied to the additional costs incurred by the office of the

medical examiner, justice of the peace, or county judge in performing such duties,

including the cost of providing coverage beyond regular business hours. The

payment shall be used to facilitate the timely procurement of organs in a manner

consistent with the preservation of the organs for the purposes of transplantation.

TEX. HEALTH& SAFETYCODE ANN.§ 693,002(a)(1)-(6) (Vernon Supp. 2005).

The Honorable David K. Walker - Page 7 (GA-0389)

See id 6 693.002(a)(l). Although section 693.002(a)(l) states that a justice of the peace “may”

permit organ removal, see id. ; see also TEX. GOV’T CODE ANN. 5 3 11 .016( 1) (“‘May’ creates

discretionary authority or grants permission or a power.“), it is clear from section 693.002(a)(2)-(5)

that a justice of the peace does not have unfettered discretion over this matter, see TEX. GOV’T CODE

ANN. 0 3 11 .O16 (Vernon 2005) (“The following constructions apply unless the context in which the

word or phrase appears necessarily requires a different construction or unless a different construction

is expressly provided by statute[.]“). Section 693.002(a)(2) through (5) addresses the timing of the

release of organs vis a vis an autopsy. See TEX. HEALTH& SAFETYCODE ANN. 3 693.002(a)(2)-(5)

(Vernon Supp. 2005). These subsequent provisions do not permit a justice of the peace to delay an

organ removal procedure and in some circumstances will require a justice of the peace to attend an

organ removal procedure to determine whether to deny removal.

Specifically, section 693.002(a)(2) addresses situations in which no autopsy is required: “If

no autopsy is required, the organs to be transplanted shall be released in a timely manner to the

qualified organ procurement organization . . . for removal and transplantation.” Id 9 693.002(a)(2).

Because article 49.10(e)(l) requires a justice of the peace to order an autopsy if the justice of the

peace determines that an autopsy is necessary “to determine or confirm the nature and cause of

death,” TEX. CODE GRIM. PROC.ANN. art. 49.1 O(e)( 1) (Vernon Supp. 2005), section 693.002(a)(2)

applies when a justice of the peace has determined that an autopsy is not necessary.

Section 693.002(a)(3) addresses situations in which an autopsy is required but in which the

justice of the peace or other official has determined that removal of the organs will not interfere with

the investigation or autopsy:

If an autopsy is required and the medical examiner, justice of

the peace, county judge, or designated physician determines that the

removal of the organs will not interfere with the subsequent course

of an investigation or autopsy, the organs shall be released in a timely

manner for removal and transplantation.

TEX. HEALTH & SAFETY CODE ANN. $693.002(a)(3) (Vernon Supp. 2005) (emphasis added).

Section 693.002(a)(4)-(5) addresses situations in which an autopsy is required but in which

the relevant official has not yet determined whether removal of the organs will interfere with the

investigation or autopsy. Section 693.002(a)(4) addresses the duties of a medical examiner in these

circumstances:

(4) If the medical examiner is considering withholding one or

more organs of a potential donor for any reason, the medical

examiner shall be present during the removal of the organs. In such

case, the medical examiner may request a biopsy of those organs or

deny removal of the anatomical gift. If the medical examiner denies

removal of the anatomical gift, the medical examiner shall explain in

The Honorable David K. Walker - Page 8 (GA-0389)

writing the reasons for the denial. The medical examiner shall

provide the explanation to:

(A) the qualified organ procurement organization; and

(B) any person listed in Section 693.004 who consented to

the removal.

Id. 5 693,002(a)(4) (emphasis added). Section 693.002(a)(5) addresses the duties of a justice of the

peace, county judge, or designated physician:

(5) If the autopsy is not being performed by a medical

examiner and one or more organs may be withheld, the justice of the

peace, county judge, or designated physician shall be present during

the removal of the organs and may request the biopsy or deny

removal of the anatomical gift. If removal of the anatomical gift is

denied, the justice of the peace, county judge, or physician shall

provide the written explanation required by Subdivisions (4)(A) and

(W

Id. 5 693.002(a)(5).

Given your questions, we focus on section 693.002(a)(5) as it applies to an inquest conducted

by a justice of the peace. Because section 693.002(a)(2)-(3) addresses removal of organs after a

justice of the peace has determined that an autopsy is not necessary or that removal of organs will

not interfere with the investigation or autopsy, it is evident from the statutory context that section

693.002(a)(5) applies to a justice of the peace who has not yet made those determinations.

Significantly, section 693.002(a)(5)‘s plain language requires a justice of the peace who has not yet

made those determinations to attend a procedure to remove organs. See id. 0 693.002(a)(5) (“the

justice of the peace, county judge, or designated physician shall bepresent during the removal of the

organs “) (emphasis added); see also TEX. GOV’T CODE ANN. 6 3 11 .O16(2) (Vernon 2005) (“‘Shall’

imposes a duty.“).9 However, during the procedure, the justice of the peace is authorized to deny

organ removal. See TEX. HEALTH & SAFETY CODE ANN. 5 693.002(a)(5) (Vernon Supp. 2005) (the

91n your brief, you state that

[t]he clear language of Section 693.002(a)( 1) . . . says that the justice of the peace

“may permit the removal o[fj organs from a decedent” if the circumstances

described in subsections (a)(2)-(5) exist. If the justice of the peace has not yet

determined if an autopsy is necessary or that destruction of evidence may occur,

these subsections are not applicable.

Request Letter, supra note 1, at 7. However, the general authority that section 693.002(a)( 1) grants a justice ofthe peace

to permit organ removal in cases where an inquest is required does not mitigate the mandatory duty under section

693.002(a)(5) of a justice of the peace who has not yet permitted organ removal to attend the organ removal procedure.

See TEX. HEALTH & SAFETY CODE ANN. 5 693.002(a)(l), (5) (Vernon Supp. 2005).

The Honorable David K. Walker - Page 9 (GA-0389)

justice of the peace “may. . . deny removal of the anatomical gift”) (emphasis added); see also TEX.

GOV’T CODE ANN. $ 311.016(l) (V ernon 2005) (providing that generally “‘[mlay’ creates

discretionary authority or grants permission or a power”).

You suggest that to the extent section 693.002(a)(5) of the Health and Safety Code and Code

of Criminal Procedure provisions regarding autopsies conflict, the latter must prevail. See Request

Letter, supra note 1, at 7-8. But subchapter A of chapter 49 of the Code of Criminal Procedure,

which governs a justice of the peace’s duties with respect to inquests and autopsies, does not

specifically address autopsies and organ removal by an organ procurement organization. See TEX.

CODE CRIM. PROC. ANN. arts. 49.01-.24 (Vernon Supp. 2005). You have not identified any

particular Code of Criminal Procedure provision that conflicts with section 693.002(a)(5) nor have

we located any.

Moreover, the two statutory schemes work in harmony. For example, article 49.10 requires

a justice of the peace to order an autopsy in certain circumstances, including when the justice

determines that an autopsy is necessary to determine or confirm the nature and cause of death. See

id. art. 49.10(e)(l). It does not require a complete examination of the body in every autopsy,

however. A justice of the peace who “determines that a complete autopsy is unnecessary to confirm

or determine the cause of death” may order a physician to take samples of body fluids, tissues, or

organs. Id. art. 49.1 O(i). Thus subchapter A, which defines the term “autopsy” broadly,” does not

mandate that an autopsy always include an examination of organs. Section 693.002(a)(5) of the

Health and Safety Code is consistent with these duties and powers: If the justice of the peace has

not yet determined whether an autopsy is necessary or whether removal of the organs will interfere

with the investigation or autopsy before a scheduled organ removal procedure, the statute requires

the justice of the peace (or designated physician) to attend the organ removal procedure but permits

the justice of the peace (or designated physician) to obtain organ biopsies during the procedure or

to deny organ removal altogether.” Section 693.002(a)(5) does not impede a justice of the peace’s

authority to order an autopsy.

With respect to scheduling the time for organ removal procedures, you specifically assert that

a justice of the peace’s decision about whether an autopsy is necessary is governed by the Code of

Criminal Procedure and that under the Code of Criminal Procedure a justice of the peace is not

required to make this decision “in any manner or at any particular time.” Request Letter, supra note

1, at 7. As a result, an organ procurement organization “cannot dictate or require a justice of the

peace to act at a time and place determined by the organization.” Id. However, subchapter A of

“See TEX. CODE GRIM. PROC. ANN. art. 49.01( 1) (Vernon Supp. 2005) (“Autopsy” means “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.“).

“You cite section 692.0 15 of the Health and Safety Code for the proposition that section 693.002 must yield

to conflicting Code of Criminal Procedure provisions. See TEX. HEALTH& SAFETYCODE ANN. 5 692.0 15(a) (Vernon

2003) (“This chapter is subject to the laws of this state prescribing the powers and duties relating to autopsies.“)

(emphasis added). By its plain terms, however, section 692.015 establishes a rule of construction only for Health and

Safety Code chapter 692, the Texas Anatomical Gift Act. See id.

The Honorable David K. Walker - Page 10 (GA-0389)

chapter 49 of the Code of Criminal Procedure does not address when organs may be removed by an

organ procurement organization. See TEX. CODE GRIM. PROC. ANN. arts. 49.01-.24 (Vernon Supp.

2005). Section 693.002(a) of the Health and Safety Code governs this issue and it is clearly intended

to facilitate timely organ removal for transplantation. See TEX. HEALTH& SAFETY CODE ANN. 5

693.002(a)(2) (Vernon Supp. 2005) (“the organs to be transplanted shall be released in a timely

manner”), (3) (“the organs shall be released in a timely manner for removal and transplantation”).

It is plain from section 693.002(a) as a whole that the legislature intended to require justices of the

peace and other officials to perform their duties relating to autopsies according to a timetable that

permits donated organs to be transplanted. See id.; see also id. 3 693.002(a)(6) (providing that a

payment by an organ procurement organization for an official’s costs “shall be used to facilitate the

timely procurement of organs in a manner consistent with the preservation of the organs for the

purposes of transplantation”).‘2

B. Specific Questions

Your first question is whether the Health and Safety Code requires a justice of the

peace “to allow an organ procurement organization to procure the organs of the deceased before the

need for an autopsy has been determined.” Request Letter, supra note 1, at 6. Your second question

is very similar: “Can the procurement of the organs occur before the justice of the peace has

determined whether procurement of the organs will interfere with the course of the investigation?”

Id. Section 693.002(a) does not require a justice of the peace to permit an organ procurement

organization to remove organs before the justice of the peace has determined whether an autopsy is

necessary or whether organ procurement will interfere with the course of the investigation.

However, section 693.002(a)(5) requires a justice of the peace who has not yet determined whether

an autopsy is necessary or whether organ removal will interfere with the investigation or the autopsy

to attend the procedure to remove organs or to send a designated physician. At the procedure, the

justice of the peace or designated physician may deny organ removal. See TEX. HEALTH& SAFETY

CODE ANN. 5 693.002(a)(5) (Vernon Supp. 2005).

Your third question is whether an organ procurement organization may require a justice of

the peace “to make a decision regarding the removal of the organs at a time and place determined

by the organization or is this a function of the justice court and subject to the court’s schedule and/or

rules.” Request Letter, supra note 1, at 6. Section 693.002(a)(5) by its express terms requires a

justice of the peace or designated physician to attend the organ removal procedure and permits a

justice of the peace or designated physician who does so to deny organ removal. See TEX. HEALTH

& SAFETYCODE ANN. 3 693.002(a)(5) (Vernon Supp. 2005). Section 693.002(a) does not give a

“This purpose is also clear from the legislative history. The legislature amended Health and Safety Code

section 693.002 in 1995 to authorize medical examiners to permit organ removal and to require them to attend organ

removal procedures, establishing a legislative framework governing organ removal vis ?Ivis medical examiner inquests

and autopsies. See Act ofMay 24, 1995,74th Leg., R.S., ch. 523, 0 1, 1995 Tex. Gen. Laws 3279. The 1995 legislative

history indicates that the purpose of the bill was to “facilitate the timely removal and transplantation of organs and tissue

from decedents.” HOUSERESEARCHORG., BILL ANALYSIS, Tex. S.B. 35 1,74th Leg., R.S. (1995); see also TEX. GOV’T

CODE ANN. $3 11.023(l) (Vernon 2005) (in construing a statute a court may consider the object to be attained). The

legislature amended the statute to apply to justices of the peace in 2003. See Act of May 28,2003,7Sth Leg., R.S., ch.

1220, $ 1,2003 Tex. Gen. Laws 3464.

The Honorable David K. Walker - Page 11 (GA-0389)

justice of the peace any authority over the procedure’s timing or authorize a justice of the peace to

deny organ removal under any other circumstances. See id 5 693.002(a). Thus, by requiring a

justice of the peace or designated physician to attend an organ removal procedure, section

693.002(a)(5) in effect authorizes an organ procurement organization that schedules a procedure to

require a justice of the peace who has not yet made the decision regarding organ removal to do so

at a time and place determined by the organization.

Your fourth question is whether section 693,002(a)(6) allows “payment by the organization

of costs incurred that are necessary to aid and assist the justice of the peace in making a

determination that the organs or tissue will or will not interfere with the course of an investigation.”

Request Letter, supra note 1, at 6.

Section 693.002(a)(6) provides that

[i]f, in performing the duties required by this subsection, . . . the

justice of the peace, county judge, or designated physician is required

to bepresent at the hospital to examine the decedent prior to removal

of the organs or during the procedure to remove the organs, the

qualified organ procurement organization shall on request reimburse

the county or the entity designated by the county for the actual costs

incurred in performing such duties, not to exceed $1,000.

TEX. HEALTH & SAFETY ANN. 0 693.002(a)(5) (V ernon Supp. 2005) (emphasis added).

CODE

Determining whether organ removal will interfere with the course of an investigation is a duty

required by section 693.002(a). See id. 0 693.002(a)(3)-(5). If in order to perform that duty a justice

of the peace or designated physician is required to be present at the hospital to examine the body

either before or during the organ removal procedure, section 693.002(a)(6) provides for the organ

procurement organization to reimburse the county for actual costs, not to exceed $1000. See id. 8

693.002(a)(6).

Your fourth question asks about costs associated with the removal of tissue as well as organs.

See Request Letter, supra note 1, at 6. Section 693.002(a)(6) addresses costs only for duties required

by section 693.002(a), which pertains to organ removal. Section 693.002(b)-(c) governs tissue

removal. l3 By its plain terms, section 693.002(a)(6) does not provide for costs to be paid by a tissue

13Section 693.002(b)-(c) provides as follows:

(b) On a request from a qualified tissue procurement organization, as defined

in Section 692.002, the medical examiner may permit the removal oftissue believed

to be clinically usable for transplants or other therapy or treatment from a decedent

who died under circumstances requiring an inquest if consent is obtained pursuant

to Section 693.003 or, if consent is not required by that section, no objection by a

person listed in Section 693.004 is known by the medical examiner. If the medical

examiner denies removal ofthe tissue, the medical examiner shall explain in writing

the reasons for the denial. The medical examiner shall provide the explanation to:

(continued...)

The Honorable David K. Walker - Page 12 (GA-0389)

procurement organization for duties required by section 693.002(c). See TEX. HEALTH & SAFETY

CODE ANN. 0 693.002(a)(6) (V et-non Supp. 2005) (“[IIf, in performing the duties required by this

subsection, . . . the justice of the peace . . . is required to be present at the hospital to examine the

decedent prior to removal of the organs or during the procedure to remove the organs, the qualified

organ procurement organization shall on request reimburse the county . . . .“) (emphasis added).

Finally, you ask whether a “justice of the peace [may] deny the removal of the organs or

tissue upon the request of the district attorney.” Request Letter, supra note 1, at 6. Article

49.1 O(e)(3) of the Code of Criminal Procedure provides that “[a] justice of the peace shall order an

autopsy . . . if directed to do so by the district attorney.” TEX. CODE CFUM. PROC. ANN. art.

49.10(e)(3) (Vernon Supp. 2005). However, neither article 49.10(e)(3) nor section 693.002 of the

Health and Safety Code gives a district attorney authority over the removal of organs or tissue.

Rather, section 693.002(a) gives the authority to release or withhold organs to the justice of the

peace. Specifically, section 693.002(a)(3) expressly requires the release of organs if the “justice of

the peace . . . determines that the release of organs will not interfere with the subsequent course of

an investigation or autopsy.” TEX. HEALTH& SAFETYCODEANN. 0 693.002(a)(3) (Vernon Supp.

2005). In that case, the autopsy will be performed after organ removal. See id. Section

693.002(a)(5) 1 a so vests discretion in the justice of the peace over whether organs may be removed.

See id. $ 693.002(a)(5) (“the justice of the peace . . . shall be present during the removal of the

organs and may request the biopsy or deny removal of the anatomical gift”) (emphasis added); see

also TEX. GOV’T CODE ANN. 0 3 11.016(l) (Vernon 2005) (“‘May’ creates discretionary authority

or grants permission or a power.“). Similarly, section 693.002(c) vests a justice of the peace with

the discretion to permit or deny the removal of tissue. See TEX. HEALTH& SAFETY CODE ANN. $

693.002(c) (V emon Supp. 2005).

Thus, in answer to your question, even if a district attorney has directed the justice of the

peace to order an autopsy under article 49.1 O(e)(3), section 693.002 authorizes a justice of the peace

to make an independent determination regarding whether organs or tissue may be removed. A

district attorney may not require a justice of the peace to deny organ or tissue removal.

(1) the qualified tissue procurement organization; and

(2) the person listed in Section 693.004 who consented to the removal.

(c) If the autopsy is not being performed by a medical examiner, the justice

of the peace, county judge, or designated physician may permit the removal of

tissue in the same manner as a medical examiner under Subsection (b). If removal

of the anatomical gift is denied, the justice of the peace, county judge, or physician

shall provide the written explanation required by Subsections (b)( 1) and (2).

TEX. HEALTH& SAFETYCODE ANN. 9 693.002(b)-(c) (Vernon Supp. 2005).

The Honorable David K. Walker - Page 13 (GA-0389)

SUMMARY

In a case in which a decedent has died under circumstances

requiring an inquest and the family consents to organ removal, section

693,002(a)(5) of the Health and Safety Code requires a justice of the

peace who has not yet determined whether an autopsy is necessary or

whether organ removal will interfere with the investigation or the

autopsy to attend the procedure to remove organs or to send a

designated physician. During the procedure the justice of the peace

or designated physician may deny organ removal. By

requiring a justice of the peace or designated physician to attend an

organ removal procedure, section 693.002(a)(5) in effect authorizes

an organ procurement organization that schedules a procedure to

require a justice of the peace who has not yet made the decision

regarding organ removal to do so at a time and place determined by

the organization.

If a justice of the peace or designated physician is required to

be present at the hospital to examine the body either before or during

the organ removal procedure in order to perform a duty relating

to organ removal under section 693.002(a), section 693.002(a)(6)

provides for the organ procurement organization to reimburse the

county for actual costs, not to exceed $1000. Section 693.002(a)(6)

does not provide for costs to be paid by a tissue procurement

organization for duties required by section 693.002(c), which relates

to tissue removal.

Section 693.002 authorizes a justice of the peace to make an

independent determination regarding whether organs or tissue may be

removed. A district attorney may not require a justice of the peace to

deny organ or tissue removal.

BARRY R. MCBEE

First Assistant Attorney General

NANCY S. FULLER

Chair, Opinion Committee

Mary R. Crouter

Assistant Attorney General, Opinion Committee