Untitled Texas Attorney General Opinion ( 1945 )

-. ..
Honorable Raymond F. Blount, Secretary
Anatomical Board of the State of Texas
University of Texas
Galveston, Texas
Dear Sir: Opinion No. O-6455
Re: Disposition of bodies of deceased
persons-"bona fide frlend"-trans-
portation of such bodies.
In your letter of recent date you ask our opinion on
several distinct questions affecting dead human bodies, which
we restate as follows:
(1) Under the language of Article 4584, Revised
Civil Statutes of Texas, which contains the statutory
regulations relating to the delivery of bodies to the
Anatomical Board, It is provided that human bodies re-
quired to be burled at public expense may be turned
over. to the Board under certain circumstances, after
notice to "kindred or relatives of such deceased."
It Is further provided that "if any person claiming
to be and satisfying the authorities in charge of such
body that he or she is of a kindred or is related by
marriage to the deceased, or is a bona fide friend or
reoresentatlve of an organization of which the deceased
was a member, shall claim the said body for burial, it
shall be surrendered without cost to such claimant for
interment, or shall upon such claimant's request, be
interred In the manner provided for the interment of
bodies not coming within the operation of the law."
Under this law, can the Anatomical Board require the
signature of bona fide friends and representatives of
organizations or other proof In substantiation of their
position as such "bona fide friends" or "representatives
of organizations?"
(2) Under the above cited statutes and those pro-
viding for burial at public expense, would a county or
city be authorized or permitted to require persons clalm-
ing bodies for burial at public expense to be either kindred
or related by marriage, before releasing such bodies for
such burial?
Honorable Raymone F. Bount - page 2 o-6455
(3) Article 4586 provides that the board may
employ public carriers for the conveyance of said
bodies.
(a) Are we correct in Interpreting
the law to mean that the Anatomical Board
may make use of public carrier, such as a
trucking company, and that the shipment
need not be done through an undertaker?
(b) When a.body is shipped from one
city to another by ordinary methods the Ex-
press Company charges the undertaker twice
first class raIlway fare for the distance
shipped, rather than the ordinary express
rates by weight. Does the law require that
we pay this or may we ask that we be charged
by weight?
(c) This problem also arises with the
exchange of anatomical specimens (parts of
bodies between Institutions. Can we legally
have this material properly boxed and shipped
by truck?
It is the function of the Anatomical~Board of the
State of Texas to receive dead human bodies required to be buried
at public expense and to distribute such bodies to certain in-
stitutions for use in the advancement and promotion of learning
in the medical sciences. The powers and duties of the Board are
provided by Chapter 13, Title 71, Revised Civil Statutes of Texas,
Articles 4583 to 4599.
Article 4583 specifies those to hold membership on
said Board. In the language of the statute:
'I*l * The board shall have Dower to establish
rules and regulations for Its government, and to ap-
point and remove proper officers of such board and
shall keep full and complete minutes of its trans-
actions. Records sufficient for identification shall
also be kept, under its direction, of all bodies re-
ceived and distributed by said board and of persons
to whom the same may be distributed,,which minutes
and records shall be open at all times to the inspec-
tion of each member of said board and of a'lfy
district
attorney or county attorney of this State.
(Emphasis ours) .~
Article 4584 reads as follows:
. -
Honorable Raymond F. Blount - page 3
"All public officers, agents, and servants
and all officers, agents and servants of any county,
city, town, district or other municipality, and of
any and every almshouse, prison, morgue, hospital,
or any other public Institution, having charge or
control of dead human bodies required to be buried
at public expense are hereby required, after noti-
fication in writing by said board or Its duly author-
ized officers, or persons designated by the author-
ities of said board, then and thereafter to announce
to said board, its authorized officer or agent, when-
ever such body or bodies come into his or their posses-
sion, charge or control, and shall without fee or re-
ward.greater than the value of such fee as was paid
in any county, city, town, or municipality on the
third day of April 1907, for the burial of pauper
bodies, deliver such body or bodies, and permit the
said 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, but no notice need be given, nor any such
body be delivered, if any person claiming to be -and
satisfying the authorities in charge of such body
that he or she is of kindred or is related by marriage
to the deceased, or is a bona fide friend or repre-
sentative of an organization of which the deceased
was a member, shall claim the said body for burial,
but it shall be surrendered without cost to such
claimant for interment, or shall upon such claimant's
request, be interred in the manner provided for the
interment of bodies not coming within the operatlon
of this law. No notice shall be given for the body
to be delivered, if the deceased died of contagious
disease, save tuberculosis, or syphilis, nor shall
notice be given If such deceased person were a
traveler who died suddenly, in which cases the body
shall be burled. It Is further required that due
effort be made by those in charge of such almshouse,
prison, morgue, hospital, or other public institution
having charge or control of such dead human bodies,
to find kindred or relatives of such deceased and
notify him or her of the death; and failure to claim
such body by kindred or relation within twenty-four
hours after receipt of such notification shall be
recognized as bringing such body under the provisions
of this law, and delivery shall be made as soon there-
Honorable Raymond F. Blount - page 4 o-6455
after to said board, its officers, or agents as may
be possible. Such person in charge of such public
Fnstltution shall file with the county judge an
affidavit that he has made diligent inquiry to find
the kindred or relatives of the deceased stating
such inquiry as he has made. In case a body is
claimed by relatives within ten days after It has
been delivered to an institution or persons en-
titled to them for burial and without costs.((
From a careful reading of the above statute, it is
our opinion that the holder of such a body as Is contemplated
(one required to be burled at public expense, save and except
that of a person who died of contagious disease, save tubercu-
lOSiS, or syphilis, or a traveler who died suddenly), is legally
bound to notify or "announce to" the board Immediately upon
acquiring the body, that fact. This, of course, is only appli-
cable to those who have been notified in writing by the board
OP its officers or persons designated by the authorities of the
board. Upon such notice or announcement, the board assumes
potential jurisdiction of the body. It is further the duty of
the person or persons having possession of the body to make
diligent effort to locate "kindred or relatives" (relatives by
marriage) of the deceased and to make known the death. After
such actual notice, such kindred or relation has twenty-four
hours within which to claim the body, before the board may assume
possession and manual control of it, If no such claim be made
within such time (twenty-four hours after notice to such kindred
or relation), the board by complying with the statute (paying
the holder of the body such reward orfee as was paid for the
burial of pauper bodies In the county, city, town, or municipal-
ity concerned on April 3, 1907), may assume actual physlcal pos-
session of~~thebody and distribute it as provided by Article
4585. Relatives may still claim and receive the body wlthin
ten days after delivery to any institution or person by the
board.
However, the above statute provides, 'no notice need
be given" (to kindred or relatives of such deceased) 'nor an
such body be delivered" (to the board or its representativesT
"if any person claiming to be and satisfying the authorities
in charge of such body that he OP she is of a kindred or Is re-
lated by marriage to the deceased, or is a bona fide friend or
representative of an organization of which the deceased was a
member, shall claim the said body for burial, but It shall be
surrendered without cost to such claimant for interment, or shall
upon such claimant's request, be Interred in the manner provided
for the interment of bodies not coming within the operation of
this law."
. .
Honorable Raymond F. Blount - page 5 o-6455
We are of the opinion that the above language simply
means that if kindred or relatives by marriage to the deceased,
or a "bona fide friend", or representative of any organization
of which deceased was a member, claims the body, it shall be
surrendered without cost to the claimant for burial, or interred
at public cost.
What is a "bona fide friend" of the deceased? There
appears to be no hidden meaning or mystery in the phrase.
Webster defines "friend" as "one who entertains for another such
sentiments of esteem, respect, and.affection that he seeks his
society and welfare; a well-wisher: an intimate associate.'! By
"bona fide" is meant "in or with good faith; without fraud or
deceit; genuine." So a "bona fide friend" as used in this
statute clearly implies one genuinely Interested in the welfare
of the deceased.
As Article 4583, supra, defining the scope of the
duties of the board specifically provides that "the board shall
have power to establish rules and regulations for its govern-
ment" and as the board has potential jurisdiction of the body
at once ('wheneversuch body or bodies come into his or their
possession" (of the hospital or other enumerated institution
named in Article 4584, supra), it is our opinion that your board
has the authority to promulgate a rule and thereby to set up
reasonable standards by which to require proof or substantiation
of the claimed status of "bona fide friend" or "representative
of an organization of which the deceased was a member." We deem
it appropriate that actual notice of such requirement be given
the institutions called upon in the "notification in writing by
said board!'contemplated and required by the first sentence of
said article 4584, supra. This answers your first questi.on.
In considering your second question, we find the pro-
visions of Article 2351, Revised Civil Statutes, to specify as
one of the duties of commlssloners' courts, that such courts
shall "provide for the burial of paupers." It has been held
that a county is not liable for burial expenses of a pauper
without proper authority being obtained through notice to the
county judge or commissioners, and their approval thereof, prior
to burial. P&Norton v. Val Verde County (Tex. Civ. App.) 25 S.W.
The statutes do not specify what requirements shall be
tz&sed by the county . Other than the cited article and article
4584, supra, we find no legislation on the subject. It is our
opinion, however, that the commissioners' court would not be
justlfled ltiignoring the language of Article 4584 which says
the body "shall upon such claimant's request (kindred relative
by marriage, bona fide friend or representative, etc.3, be in-
terred in the manner provided", etc.
. ,
Honorable Raymond F. Blount - page 6 O-6455
Article 1015, Revised Civil Statutes, sub-division 13
provides that the governing body $f a city shall have power to
'regulate the burial of the dead. It is assumed that city
ordinances properly enacted, would control; and such ordinances
would prescribe the regulations on the sub'ect. It would seem
to be incompatible~with the language quote2 In the next preceding
paragraph, however, for the city to Impose the condition you
mention, and require kindred or relatives by marriage to be
the ones making the request for burial, in view of the statute
also including "bona fide friends or representatives of an
organization" as coming within the category of those entitled
to make such request. Ordinances of cities must conform to
state laws; certainly must not conflict with their provisions.
You are accordingly advised, in anbwer to your second
question, that in our opinion neither counties nor cities mav
require persons claiming bodies for burial at public expense-to
be either kindred or related by marriage to the deceased pauper
or indigent dead.
We next consider your questions with relation to the
transportation of said bodies.
Article 4586, Revised Civil Statutes, reads as fol-
lows :
"The board may employ public carriers for the
conveyance of,said bodies, which shall be carefully
deposited, with the least possible public display.
The sender shall keep on permanent file a description
by name, color, sex, age, place and cause of death
of each body transmitted by him. Or where the body
shall be one of a person unknown, the color, age,
sex, place and supposed cause of death; and any other
data available for identification, such as scars, de-
formities, etc., shall be put on record. A duplicate
of this description shall be mailed, OP otherwise safe-
ly conveyed, to the person or Institution to whom the
body Is being sent; and the person or instltutlon re-
ceiving such body shall, without delay, safely trans-
mit to the sender a receipt for the same in the full
terms of the description furnished by the sender. All
these records shall be filed in a manner to be determined
by the board so that they may be at any time available
for inspection by the b:ard, or any district or county
attorney of this State.
The term "public carrier" as used In the above statute,
or otherwise, does not appear to have been judicially defined
by our Texas courts. In other jurisdictions there have been such
.
. . .
Honorable Raymond F. Blount - page 7 0 -6455
definitions. In the case of Ace-High Dresses v. J.C.'Trucking
Company; 191 A. 536, 538, 122 Corm. 578, 112 A.L.R. 86, It is
held that one who undertakes as a business, for hire or reward,
to carry from one place to another goods of all persons who may
apply for such carriage , provided goods be of the kind which he
professes to carry, and person so applying will agree to have
them carried on lawful terms prescribed by carrier, Is a "public
carrier." In State ex rel. Anderson v. Wltthous, 102 S.W. (26)
99, 102, 340 MO. 1004, the test of a "public carrier' is said
to be whether the operator invites~trade of the public. See 35
Words and Phrases, Perm. Ed., 55, 56 for other examples. For
the purposes of this opinion, we adopt the above definitions.
The statutory provisions of our Code with relation to
the transportation of dead bodies generally are contained In
Rules 77-86 of the Sanitary Code, same being a part of Aritcle
4477, Revised Civil Statutes. It is our opinion that Article
4586 must be Interpreted In connection with said Rules. For an
example, Rule 77 states that bodies dead of certain specified
pestilential diseases may not be transported except in a hearse
or undertaker's wagon unless the boay shall have been cremated.
We do not think Article 4586 would authorize transportation of
such corpses by public carrier. Other regulations are set forth
dealing with methods of preparing for shipment of contagious
disease cases, etc., which we do not believe it necessary to
detail here.
Article 4586 was originally enacted In 1907; Article
4477 in 1911, amended by addition of some matter in 1917. Ar-
ticle 4586 must be read and construed in connection with the
requirements of Rules 77 to 86 of Article 4477.
Unless coming within some prohibition of Rule3 77 to
86 of Article 4477, it is our opinion that the proper answer
to question 3(a), supra, Is that the Anatomical Board may make
use of a public carrier, such as a trucking company, and that
the shipment need not be done through an undertaker.
You state that you have been shipping some bodies by
express and that the Express Company charges the undertaker twice
first class railway fare; you wish to know whether the law requires
that you pay such rates, or whether you may pay the Express Com-
pany by weight only.
Item 18, page 45, Official Express Classification No.
33 (July 1, 1943, as amended July 10, 1943)) and approved by the
Railroad Commission of Texas by schedule order No. 128, as to
express companies provides:
"When weight does not exceed 500 poUnds, 'corpses
. . .
Honorable Raymond F. Blount - page 8 0 -6455
must be charged double the one-way adult passenger
fare based on ticket good for transportation In parlor
or standard sleeping cars as named in the tariff or
tariffs of the ratlroad over whose lines the corpse
is transported &s lawfully on file with the Interstate
Cotmnerce~commission,the * * * Railroad Commission
with which this classification is filed, minimum
charge $6.75.”
The Railroad Commission has made no exception appli-
cable to your board, according to the Rate Dlvlsion of such
Commlsslon. That body is vested by law with the rate making
power, and your organization is bound thereby.
You are therefore advised that 3(b), supra, is answered
that when shipping bodies by express, you xmst pay twice first-
class railway fare for the distance shipped, minimum $6.75, until
and unless the rates are revised or the law is changed.
The Rate Division of the Railroad Commission advlses
that there is no special tariff affecting the anatomical speci-
mens of which you inquire In question 3(c). AccordIngto their
information such specimens would come under unspecified shipments
and would take first-class express charges by weight.
If properly boxed, we are not apprised of any law which
would preclude your shipping such specimens by truck.
Trusting that the above will adequately answer your
questions, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Benjamin Woodall
Benjamyn Woodall
Assistant
BW:sd:wc
APPROVED MAR 31, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/‘BWBChairman