Nuther challenge to Harris Co. ME: Called administrative and judicial officers by county at different times

A second attorney has filed claims that Harris County medical examiner reports are invalid based on researcher and occasional Grits commenter David Fisher's findings that most of them had not signed constitutionally required oaths of office or bribery statements which are seemingly required for them to perform their duties. Michael Reed at Houston Community Newspapers proivides a good overview of the issues at stake based on recent court filings ("Legal standing of Harris County medical examiner at issue," Jan. 13):

In a Sept. 15, 2011 opinion, ... Glen Van Slyke, assistant county attorney, wrote that the medical examiner is not an appointed public “officer,” but rather an “administrative employee” of the Commissioners Court. As such, holding the position does not require taking an oath of office or providing any written statements.

Oddly, in 2009, Harris County went before the 1st Court of Appeals to argue that Sanchez was a judicial officer and as such could not be barred from performing an autopsy opposed by the deceased’s family for religious reasons.

Harris County was joined in its position by Tarrant, Dallas, Bexar, El Paso and other medical examiner counties. When challenged later, each of these, unlike Harris County, executed the oath and statement as required by the state Constitutional.

Sanchez, through a spokesman, declined to comment Friday.

In the 2009 case, Harris County vs. Afsaneh Saghian, the court ruled “the Medical Examiner of Harris County is a judicial officer and that it is manifestly improper for a district court to enjoin him from performing duties which he deems — in a valid exercise of his discretion — to be necessary and required of him by statute.”

That may be for the best from the county’s vantage point. If the medical examiner is not a judicial officer, according to the defense attorneys, an even bigger problem arises — one that could result in criminal charges, rather than constitutional violations.

Unlike in many other states, physicians in Texas are prohibited by state law from taking part in “corporate practice of medicine.” In other words, doctors cannot practice medicine that is “any way controlled or directed” by a non-physician. This, according to Bollinger, includes partnerships and employee relationships.

“A non-physician cannot hire a physician to be a physician except in very limited exceptions,” Bollinger’s motion said. “None of those circumstances or exceptions apply to the claimed relationship between the Commissioner's Court and the Harris County Medical Examiner.”

Possible penalties for practicing corporate medicine include $1,000 fine for each violation with each day a separate infraction, and the possibility of third-degree felony changes for each violation against the doctor in question.

“Each of these penalties could be applied to both Sanchez and the employer, who the county attorney claims is the Harris County Commissioner's Court,” the motion said.

That would entail roughly 1,750 civil violations and criminal offenses on the part of the both parties since Sanchez took office, January 2003.

The underlying issues may seem like bureaucratic trivialities, but at the same time, the county clearly is in a bind, having argued to an appellate court in 2009 that the ME is a judicial officer (when they wanted to maximize the office's authority to override family religious prerogatives), but now contradicting themselves to say the ME is an administrative employee in order to wiggle out of the Catch-22 they're caught in.

Other counties faced the same dilemma and most went ahead and had their ME file the relevant oath and bribery statement, but it's an open question what the implications would be if a court found MEs work in past cases was invalid, and it's not just Fisher and a few defense attorneys who suspect that may be the case. As Grits noted last year when this came up, "The Webb County Attorney had declared that 'Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void.' Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they 'void' as well?"

I can't speak to which legal position is correct, but even if Fisher and Co. are right, it would take great courage for a judge to side with them, raising questions about dozens if not hundreds of inquests in murder and manslaughter cases performed while documentation was inadequate, not just in Harris County but potentially in many jurisdictions, if a single judge cracks the door open. Scott Durfee at the DA's office told Reed that they're paying little attention to the issue at the moment (perhaps distracted by proceedings at the grand jury), but "that would change, if an adverse ruling were reached." Indeed, if that happens, a lot of things could change. For want of a nail, the shoe was lost ...