Untitled Texas Attorney General Opinion ( 1972 )

March 13. 1972
Hon. James E. Peavy, M.D. Opinion NO. M-1094
Commissioner of Health
Texas State Department of Health Re: Whether the phrase "shall
Austin, Texas 78756 receive no remuneration
or compensation for blood
so donated", as used in
Article 44473, Vernon's
Civil Statutes, includes
non-monetary gratuities
extended by a blood bank
to a donor 18-21 years of
Dear Dr. Peavy: age.
Your recent request for an opinion concerning the above
referenced matter states, in part, as follows:
"As you know, this department is charged
with licensing hospitals under the 'Texas Hospital
Licensing Law' referred to in Article 44473 and
in such capacity respectfully requests your opinion
as to the following questions:
"1 . Does the language 'shall receive no
remuneration or compensation for blood so donated',
as contained in Article 44473, include non-mone-
tary gratuities extended by the blood bank to a
donor, such as blood replacement credits (a promise
to replace the blood donated by that donor when the
need arises) or other plans or programs which serve
to insure that the future blood needs of the donor
will be wholly or partially satisfied as a result
of his donation of blood?
"2 . Does the inclusion of the language 'shall
receive no remuneration or compensation for blood
so donated' as contained in Article 4447j prohibit
the providing of any gratuity extended by the blood
bank to the donor in anything other than money for
the donation of the blood?"
Article 44473, Vernon's Civil Statutes? reads as follows:
1
Acts 62nd Leg., R.S. 1971, H.B. 663, ch. 417, p. 1556.
-5336-
Dr. James E. Peavy, page 2 (M-1094)
"Any person 18 years or older has the
capacity to donate his blood to the American
Red Cross, a blood bank operating under the
supervision of a licensed physician or a hospital
licensed under the provisions of the Texas
Hospital Licensing Law provided, however, that
such donee between the age of 18 and 21 shall
receive no remuneration or compensation for
blood so donated." (Emphasis added.)
Your inquiry concerns only the underscored portion of this
Article.
Our answer to your first question is that any donee
named in this Article may contract with a donor between the ages
of 18 and 21 for blood replacement to the donor, or for other
plans or programs which serve to insure that the future blood
needs of the donor will be wholly or partially satisfied as a
result of his donation of blood.
We do not discern any intent by the Legislature to make
any impediment to any arrangements between a donor of blood
within this age bracket and any authorized donee concerning any
subsequent replacement of blood into the body of the donor or
for his own personal necessary medical usage.
In view of our answer to your first question we refrain
from answering your second question.
"Remuneration" has been defined as follows: "something
that remunerates: recompense, pay." Webster's Third New Inter-
national Dictionary (Rev.Ed. 1966) 1921. "Compensation" has been
defined thusly: "payment for value received or service rendered:
remuneration." Id. at 463. In accord, Black's Law Dictionary,
Fourth Ed., p. 354. This is the ordinary signification required
to be given to the words. Article 10, Vernon's Civil Statutes.
The word "gratuity" as used in your request would
seem antagonistic to the ordinary meaning of that word, if the
"gratuities" are to be considered an exchange for blood. A
"gratuity," by definition, is not "remuneration" or "compensa-
tion." A "gratuity" is "Something acquired without bargain or
inducement . . . Something given freely or without recompense;
a gift . . .II Black's Law Dictionary, Fourth Ed., p. 830. Let
us suppose that an eighteen year old donates a pint of blood
for the use and benefitof an ailing parent, and after the blood
is drawn, the hospital gives him a glass of orange juice and the
other parent, or an older sibling, treats him to a steak dinner.
-5337-
Dr. James E. Peavy, page ,3 ,(M-1094)
We cannot perceive any legislative intent to deny to this eighteen
year old either the orange juice or the steak. Nor do we see any
intent to deny to our eighteen year old his right to build up a
reserve of blood credit for his own use. This is analogous to
depositing his money in a bank. In either instance, he makes
his own available for his future use.
The obvious intent of the statute is to prevent young
people abusing their bodies by excessive sale of their blood.
The prohibition of sale is necessary because of lack of an ob-
jective means to determine the frequency and quantity of blood
drawings. Any means by which blood is sold or exchanged is pro-
hibited by the statute. Conversely, donation of blood, for what-
ever reason, is not prohibited by the statute. There is no pro-
hibition against gratuities unless a nominal gratuity is in
reality a subterfuge to effect a sale or exchange.
We do not consider credits in a blood bank either
compensation, remuneration, or gratuity. We consider them credits;
just as money deposited in a money bank, is a credit. A credit
does not constitute an exchange or sale. Each individual may
choose whether to donate or deposit for credit. In either event,
the choice of terminology does not create compensation, remunera-
tion, or gratuity.
The statute prohibits neither blood bank credits, nor
actual gratuities.
SUMMARY
Article 44473, Vernon's Civil Statutes, in
relation to donation of blood by those between the
ages of 18 and 21, prohibits neither blood bank credit
nor actual gratuities.
Jjfi$&
General of Texas
Prepared by Austin C. Bray, Jr. "
Assistant Attorney General
-5338-
Dr. James E. Peavy, page 4 (M-1094)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Mike Stork
Mel Corley
James Maxwell
Ben Harrison
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-5339-