                                                                            B-707

             TEEAITORNEYGENERAL
                            sm-T~ak;As
                            AUSTIN. TEXAS


                                 August 25, 1947

Hon. Raymond F. Blount              Opinion No, ,V-358.
Secretary-Treasurer                  -
state Anatomical    Board           Re:   Whether Art. 4584, V.C.S.,
University    or Texas                    requiring   delivery    of dead
Medical Branch                            bodies to the Anatomical
Galveston,    Texas                       Board or the State of Texas
                                          is mandatory;    and, whether
                                          persons   embalming for the
                                          Anatomical   Board are ex-
                                          empt rrom the requirements
                                          of an embalmer's     lioense
                                          under the provisions       of
                                          Article   761, V.P,C.
Dear IIre Blount:

              Your letter    of July 26 asks our advice       on two
questions,     .the first   or which is:     Whether    the provis-
ions   of Article    4584,   Vernon!s  Civil  Statutes,    are man-
datory."       So far as pertinent    to your inquiry     and for
the proper analysis        of the question,   we.~quote from Arti-
cle 4584 as rollows:

               "All public       officers,       agents,    and ser-
      vants,      and all officers,          agents and servants
      cf any county,         city,     town, district         or other
      municipality,         and of any and every almshouse,
      prison,      morgue, hospital,           or any other pub-
      lic    institution,        having charge or control            of
      dead human bodies required                to be buried at
      public      expense are hereby re uired                after   not-
      ification       in writing       by sai-+%---'oard or its duly
      authorized       officers,       or persons       designated    by
      the authorities          of said board, then and there-
      after     to announce to said board,               its author-
      ized orricer        or agent, whenever such body or
      bodies      come into his or their possession,
      charge or control,            and shall without          Pee or
      reward greater         than the-e             of such l'ee as
      was paid in any county,              city,    town, or munici-
      pality     on the third day of April,                1907, for
      the burial       of pauper bodies,           deliver     such body
Hon. Raymond F’. Blonnt,      Page 2,     V-3.58.



      or bodies,  and permit the said board and its
      agents and the physicians     and surgeons,     rrom
      time to time designated     by them who may com-
      ply with the provisions     of this law, to take
      and remove all such bodies as are not desired
      for post mortem examination      by the medical
      stair  of public  hospitals   or institutions      ror
      the insane,   to be used within this State ror
      the advancement of medical      science.   e . .))
      (Xmphasis supplied    throughout    this opinion).

              Certain exceptions      are provided    for bodies hav-
ing claimants      and for those bodies with contagious         dis-
eases.     Further provisions      are made governing     the length
of time which shall       expire after     death and arter notice
to those notified       to take charge of the body, artsr which
the body becomes subject        to disposal     under the provisions
of this Article.       The Article     rurther   provides  that "do-
livery    shall be made as soon thereafter         to said Board,its
orricers, Or     agents,   as may be possibleoR

             The Board referred        to was created      by Art, 4583,
V. c. s.,    as  the  Anatomical      Board  of  the   State    of Texas.
It is made up of the Profesaor           of Anatomy and the Profrs-
sor of Surgery of each of the medical              schools    or colleges
incorporated     in the State of Texas, and of the ssvoral med-
ical   and dental    schools    and colleges     inqoqoratsd       in this
State.     Other  provisions      are  made  for  proper     sareguarda
in connection     with the handling        of dead bodies,       and for
the organization,       functions     and expenses     of the Anatomi-
cal Board0

             The statute    seems to be clear      in requiring     those
in charge or-dead bodies,        named within    the statutes,      to
deliver    them, under the circumstances        set out in the stat-
ute, to the Anatomical       Board or as directed      by it.     The
words vshallv    and 'required"      used in this Article      when con-
sidered    in connection    with the general     purposes    and subject
matter of the statute       bear out the position      that this stat-
ute is mandatory.        To construe   the statute    otherwise    would
leave the Anatomical       Board entirely    subject   to the pleas-
ure of those named in the statutes         and would offer      little
assurance    of a supply of subjects      upon which the medical
institutions    might facilitate      the instruction     there given.

          Your second question       asks whether those persons
embalming for the Anatomical       Board are exempt within  the
terms or Article   761,   Vernon's   Penal Code, from the rs-
qnirsment contained     in Art, 759 of Vernon's    Penal Code,
Hon. Raymond F. BLount , Page 3) V-358.



that “every     person engaged in or desiring    to engage in
the practice     of embalming in connection   with the care
and disposition      of dead bodies within this State shall
make a written      application  to the State Board of Embalm-
ing for a license”,        etc.

           Article   761 of   the   same Chapter,   providing   ex-
emptions , reads :

             “This chapter    does not apply to one
     simply engaged in the furnishing         of burial
     receptacles,     nor is it intended    to apply
     to or interfere      with the duties   of anv muni-
     cipal~,   county  or  State  officer  or  State in-
     stitution.”

            Article  4583 .creates   the Anatomical    Board as
an official   body and its members are, therefore,         State
officers.    Their duties and the activities        of those per-
forming neoessary    acts in carrying      out those duties    un-
der the direction    of the Anatomical      Board are clearly
not subject    to the embalmer’s   license    law.

            This opinion   is not to be understood    as Limit-
ing or restricting     the application   of Rules77    through
86 of Article    4477, Vernon’s    Civil Statutes,  regulating
the transportation     of dead bodies,



           The provisions     of Art. 4504 V.C.S.,   re-
     quiring   the delivery    of dead bodies   under the
     circumstances    therein   set out, to the Anato-
     mical Board of the State of Texas,       is manda-
     tory.

           Embalming of dead bodies  in the custody
      of the Anatomical  Board is not required  to be
      done by a Licensed  embalmer. Art. 761 V.P.C.

                                    Very truly   yours

APPROVED                      ATTOE?EY GENERALOF TEXAS

7         -
FITr- T ASSISTANT             By?dm&-
ATT0 RNEYGENERAL                     Ned McDaniel
                                        Assistant
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