Whenever a person dies in Texas without having been attended by a physician, state law requires an inquest, or an investigation into the cause of the person’s death. In the wake of Justice Antonin Scalia’s death in Presidio County, reporting by some news outlets has exhibited a misunderstanding of the inquest process. In this post, I’ll explain the basics of Texas inquests. (NB: I provided education on this subject to justices of the peace for five years as an instructor for the Texas Justice Court Training Center, and I’m the author of TJCTC’s DWI Magistration & Inquest Field Guide.)
When is an inquest required by law?
As stated above, Texas law requires an appropriate judge (or, in populous counties, a medical examiner) to perform an inquest whenever person dies without having been attended by a physician. Therefore, Justice Scalia’s death required an inquest. (Other deaths also require inquests. For example, prisoner deaths which occur in county jails must be investigated. A full list of the types of deaths requiring an inquest may be found here.)
What’s the difference between an inquest and “declaring someone dead?”
The former is an established legal process, and the latter is a journalistic fiction. Several news outlets have reported that the Presidio County Judge Cinderela Guevara “declared Scalia dead.” That phrase sounds great when incorporated into a headline or a news article’s lead paragraph, but it describes an event which never occurred. Judges aren’t called to perform an inquest unless a person has discovered a body that is clearly dead and reported that discovery. The judge does not show up to the scene, point at the body, and say, “Yep, he’s dead.” Texas law requires judges to investigate the cause of death, not to determine whether or not a person is deceased. Such inquires could take weeks or months. Accordingly, if you read through Chapter 49 of the Code of Criminal Procedure (titled “Inquests Upon Dead Bodies”), you won’t find the phrase “declaration of death.”
Is it legal to perform an inquest over the telephone?
Texas law states that “a [judge] may conduct an inquest: (1) at the place where the death occurred; (2) where the body was found; or (3) at any other place determined to be reasonable by the justice.” This passage does not explicitly permit inquest-by-telephone, but judges in rural counties with limited budgets frequently conduct inquests based on information received telephonically. In my experience, many judges dislike this practice but find themselves constrained by tight-fisted county commissioners who may refuse to reimburse the judge for the cost of traveling to the location of the dead body. Many counties also set an annual “inquest budget” and commissioners in such counties have been known to punish judges who exceed the annual inquest budget by cutting funding for those judges’ courts.
What’s strange to me about Judge Guevara conducting the inquest over the telephone is that the county judge may only perform an inquest if “no justice of the peace serving the county in which the body or body part was found is available to conduct an inquest.” According to NPR, the two Presidio County justices of the peace declined to perform the inquest because they were out of the county. (Precinct 1 Justice of the Peace David Beebe confirmed this on Twitter.) This indicates to me that the justices of the peace may have expected that an inquest would be performed in person, as they could have performed a telephone inquest from Alpine or Fort Stockton. I can’t say why Judge Guevara decided to carry out her duties over the phone, but I can tell you that I generally discouraged this practice as an instructor for the Texas Justice Court Training Center.
When does a judge who performs an inquest have to order an autopsy?
As you’ve probably heard, Judge Guevara did not order an autopsy as part of the inquest into Justice Scalia’s death. The Code of Criminal Procedure states that “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.” Whenever the word “may” is used in a Texas statute, it “creates discretionary authority or grants permission or a power.” Therefore, judges who conduct inquests generally don’t have to request that an autopsy be peformed.
Importantly, Article 49.10 of the Code of Criminal Procedure also states that “the commissioners court of the county shall pay a reasonable fee for a consultation obtained by a justice of the peace.” These statutes give Presidio County judges who perform inquests the following choices: 1) make a cost-free decision about the cause of death; or 2) pay the El Paso County Medical Examiner’s office a sizable fee to perform an autopsy. Again, keeping in mind that rural counties have limited budgets and that county commissioners may wish to use those limited budgets for road-building or improved county health services, many judges decline to order an autopsy when the defendant is elderly and the causes of death seem fairly obvious and non-malevolent.
What happens now? Is the inquest into Justice Scalia’s death over?
Judge Guevara must transfer “all information obtained” as part of the inquest to Precinct 2 Justice of the Peace Juanita Bishop by Thursday, February 18 so that Judge Bishop may finally dispose of the matter. If Judge Bishop determines that additional information is needed to complete the death certificate required by state law, she may take additional steps such as ordering an autopsy or holding a formal inquest hearing. This could be good news (or bad news, depending on how you view it) for conspiracy theorists peddling absurd stories.