Untitled Texas Attorney General Opinion ( 1959 )

THEAITORNEY GENERAL
OFTEXAS
October 28, lg.59
m. RaymonaF. m0w.
Secretary4haarer
Anatomical Boara of the State of Texas
University of Texas Medical Branch
Galveston, Texas
opinion NO. ww-720
Re: Whether the Anatomical Board
may be the donee of an entire
body of an individual by his
last will or other instrument,
pursuant to the provisions of
House Bill264, Acts 56th
Legislature, Regular Sesaion,
Dear Mr. Blount: 1959, Chapter 63, page 116.
You have requested our opinion with regard to the effect of the pro-
visions of House Bill 264, Acta 56th Legislature, Regular Session, 1959,
Chapter 63, page 116, on the Anatomical Board.
The questions you present are as follows:
1. "Can this law be interpreted to include the
Anatomical Board 88 a donee under the will of an indi-
vidual?
2. "Can it be specified that the donee for an
entire body must be the Anatomical Board?'
House Bill 264 provides in part ae follows:
“Section 1. Any inhabitant of this State of legal age
and of sound mind may by his will or by other written in-
strument arrange fdr or prescribe for the disposition to be
made, after death, of his body, or any organ, member, or part
thereof, provided the came is for the purpose of advancing
medical science or for the replacement or rehabilitation of
dieeased or worn-out organs, members, or parts of the bodies
of living humane.
Mr. Raymond.F. Blount, page 2 (WW-720)
"Sec. 2. Any such bequest, donation, authorization
or consent made ptisuant to Section 1 of this Act shall
be by written instrument signed by the person making or
giving the same and shall be witnessed by two (2) persons
of legal age. Each'instrument may designate the donee,
but such designatidn shall not be necessary to its validity.
A donee may be an individual, hospital, institution, or a
bank maintained for the storage, preservation, and use of
human bodies or the organs, members, or parts thereof.
If no specific donee is named in such instrument, then
the hospital in which the donor dies shall be considered
to be the donee, and if such donor does not die in a
hospital, then the attending physician shall be considered
to be the donee; and such hospital or physician shall have
full authority to take and remove said body or the organs,
members, or parts thereof which such donor has designated
and to make the sauieavailable to any person or institution
in need ,thereof. Where a donee is named in such instnunent,
any ady licensed physician acquiring possession or custody
of the body shall have the authority to remove from the
body the organs, members, or parts thereof which the donor
has designated and to deliver the same, or where so aesig-
nated, the entire body, to the named donee. The hospital
or physician shall not be liable civilly or criminally
for removing said organs or any part thereof from the body,
providing the donor has, prior to death, executed a valid
written agreement as provided herein. No appointment of
administrator, executor, or court order shall be necessary
before the removal of said organs."
At common law there is no right of property in the dead body of a
hunan being. The courts do recognize and protect the right to preserve
the remains and bury the corpse but in the absence of a statute this is the
only right ace may have in a dead body. Love v. AEtna Casualty & Surety Co.,
gg s.W.2d 646 (Tex.Civ.App. x936), affirmed 132 Tex. 280, 1.21S.W.2d
986 (1938); Burnett v.Sur@, 67 S.W.2d 1041 (Tex.Civ.App. 1934, error
refused); Curlln v. Curlin, 228 S.W. 602 (Tex.Civ.App. 1921, no writ history);
Foster v. Foster, 220 S.W. 215 (Tex.Civ.App. 1920, no writ history); Wren v.
Texas & Pacific R. Co., 144 S.W. 682 (Tex.Civ.App. 1912, no writ history).
The purpose of House Bill 264 was -to change the common law by creat-
ing a property right in the entire body or part thereof which can be trans-
ferred at the death of the donor by will or other instrlnnent. However, the
transfer must be in the manner an& for the purposes prescribed in this statute.
Mr. Raymond F. Blount, page 3 (WW-720)
Prior to the passage of House Bill 264 the only statutes pertaining
to property rights in dead bodies were Articles 3583 through 3590 of Vernon's
Annotated Texas Civil Statutes. These Articles relate to the functiona,
powers and duties of the Anatomical Board.
Article 4583 of Vernon's Annotated Texas Civil Statutes reads in
part a8 follows:
"The professor of anatomy and the professor of
surgery of each of 'themedical schools or colleges now
incorporated, and of the severalmedicaland dental
schools and colleges which may hereafter be incorporated
in this State are constituted a board, to be known as the
Anatomical Board of the State of Texas, for the distribution
and delivery of dead human bodies, hereinafter described, to
and among such institutions as, under the provisions of this
law, are entitled thereto. . . .r (Emphasis ours)
It will be noted from the above quoted language that the purpose of
the Anatomical Board is to distribute and deliver dead human bodies, but
only those “dead human bodies hereinafter described." This language has
reference to Article 4584 of Vernon's Annotated Texas Civil Statutes which
we quote in part:
*All public officers, agents, and servants, and all
officers, agents and servants of any county, city, town,
dietrict or other municipality, and of any and every almshouse,
prison, morgue, hospital, or any other public institution,
having charge or control of dead humen bodies required to be
buried at uublic expense are hereby required . . . to announce
to said board . . . whenever such body or bodies come into his
or their possession, charge or control, and shall . . . deliver
such body or bodies, and permit the B&d board and its agents
and the physicians and surgeons, from time to time designated
by them who may comply with the provisions of this law, to
take and remove all such bodies as are not desired for post
mortem examination by the medical staff of public hospitals
or institutions for the insane, to be used within this State
for the advancement of medical science; . . .* (Emphasis ours)
It is a well'established general rule that administrative boards
or agencies created by statute derive their powers and authority from
legislative enactment and have only such powers as are expressly granted
by statute. Volume 1, Texas Jurisprudence Supplement, page 97, Administrative
LOW and Procedure, Section 8.
Mr. Raymond F. Blount, page 4 (WW-720)
The only bodies that the statutes authorize the Anatomical Board
to receive and distribute are those dead human bodies required to be buried
at public expense.
Therefore, in answer to your first question, it is our opinion
that the Anatomical Board dannot be a donee under a will or other instrument
pursuant to the provisions of Rouse Bill 264, Acts 56th Legislature, Regular
Session, 1959, Chapter 63, 'page 1.16.
Consequently your second question must necessarily be answered in
the negative; since the Anatomical Board cannot be a donee under this law,
it certainly cannot be said that the donee for an entire body must be the
Anatomical Bo82-a.
SUMMAKK
The purpose of House Bill 264, Acts 56th
Legislature, Regular Session, 1959,
Chapter 63, page 116 was to create a
property right in dead hwnan bodies that
can be transferred at the death of the
donor by will or other instrument; the
Anatomical Board is authorized to receive
and distribute only those dead human bodies
required to be buried at public expense;
therefore, the Anatomical Board cannot be a
donee under this law, nor can it be specified
that the Board must be the donee of an entire
body under House Bill 264.
Yours very truly,
WLlL WILSON
Attorney General of Texas
WOS :me
Mr. Raymond F. Blount, page 5 (Ww-720)
APPROVED
OPIIiIOIi
COMMITTEE
Gee. P. Blackburn, Chairman
B. H. Timins, Jr.
I#.P. Lollar
Ralph Rash
J. Arthur Sandlin
REiVIEwEDFOR THE A'ITORXEX-L
BY: W. V. Geppert