                                         GREG       A B B O T T




                                               May 3,2007


The Honorable Mike Stafford                       Opinion No. GA-0544
Harris County Attorney
1019 Congress, 15th Floor                         Re: Whether a county medical examiner is authorized
Houston, Texas 77002                              to recoup costs incurred when the medical examiner
                                                  permits a tissue procurement organization to remove
                                                  tissue using the medical examiner's facility and
                                                  resources under section 693.002(b), Health and Safety
                                                  Code (RQ-0545-GA)

Dear Mr. Stafford:

         Section 693.002(b) of the Health and Safety Code authorizes a county medical examiner to
permit a qualified tissue procurement organization to remove tissue from a decedent in certain
circumstances. See TEX.HEALTH& SAFETYCODEANN.§ 693.002(b) (Vernon Supp. 2006). You
ask whether a county medical examiner is authorized to recoup costs incurred when the medical
examiner permits a tissue procurement organization to remove tissue using the medical examiner's
facility and resources under section 693.002(b).'

       Section 693.002 pertains to the removal of organs and tissue from decedents who died under
circumstances requiring an inquest. See TEX.HEALTH& SAFETYCODEANN.8 693.002 (Vernon
Supp. 2006); see also TEX.CODECRIM.PROC.ANN.art. 49.25, tj 6(a) (Vernon 2006) (setting out
circumstances in which an inquest is required). Section 693.002 provides:

                       (a)(l) On a request from a qualified organ procurement
                organization, . . . the medical examiner . . . may permit the removal
                of organs from a decedent who died under circumstances requiring an
                inquest . . . if consent is obtained pursuant to Section 693.003.



                         (6) If, in performing the duties required by this subsection,
                the medical examiner . . . is required to be present at the hospital to


         'See Letter and Memorandum Brief from Marva Gay, Assistant Harris County Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Oct. 20, 2006) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter and Memorandum Brief respectively].
The Honorable Mike Stafford - Page 2          (GA-0544)



               examine the decedent prior to removal of the organs or during the
               procedure to remove the organs, the qualified organ procurement
               organization shall on request reimburse the county or the entity
               designated by the county for the actual costs incurred in performing
               such duties, not to exceed $1,000. . . .



                       (b) On a request from a qualified tissue procurement
               organization, as defined in Section 692.002, the medical examiner
               may permit the removal of tissue believed to be clinically usable for
               transplants or other therapy or treatment from a decedent who died
               under circumstances requiring an inquest if consent is obtained
               pursuant to Section 693.003 or, if consent is not required by that
               section, no objection by a person listed in Section 693.004 is known
               by the medical examiner. If the medical examiner denies removal of
               the tissue, the medical examiner shall explain in writing the reasons
               for the denial. . . . to:

                              (1) the qualified tissue procurement organization; and

                              (2) the person . . . who consented to the removal.

TEX. HEALTH& SAFETYCODE ANN. 5 693.002(a)-(b) (Vernon Supp. 2006); see also id.
$5 693.003-.004 (Vernon 2003) (setting out circumstances in which consent is required and listing
the persons who may consent or object to organ or tissue removal). A qualified organ procurement
or tissue procurement organization is an organization that

               procures and distributes organs or tissues for transplantation,
               research, or other medical purposes and that:

                      (A) is affiliated with a university or hospital or registered to
               operate as a nonprofit organization in this state for the primary
               purpose of organ or tissue procurement; and

                       (B) ifthe organization is an organ procurement organization,
               is certified to act as an organ procurement organization by the
               appropriate federal agency.

Id. 5 692.002(9).

         You distinguish between organ procurement, which is governed by section 693.002(a), and
tissue procurement, which is governed by section 693.002(b). See Memorandum Brief, supra note
1, at 1. You equate the term "organ" with the phrase "visceral organ," which section 693.OO 1 defines
The Honorable Mike Stafford - Page 3                       (GA-0544)



to mean "the heart, kidney, liver, or other organ or tissue that requires a patient-support system to
maintain the viability of the organ or tissue." TEX. HEALTH& SAFETYCODEANN. 5 693.001
(Vernon 2003); see Memorandum Brief, supra note 1, at 1. You inform us that "[olrgans are
typically removed at a hospital in a sterile environment while the patient is connected to a life
support system, not at" the medical examiner's facility. Memorandum Brief, supra note 1, at 1. By
contrast, you state, "the tissue that is recovered from decedents is usually skin, bone, dura mater,2
heart valves, veins and corneas,'' none of which requires a patient-support system to remain viable.
Id. (footnote added). You further state that tissue can be removed at the medical examiner's facility
"in an aseptic recovery field." Id.

        Your question pertains solely to the removal of tissue under section 693.002(b). See Request
Letter, supra note 1, at 1. You suggest that the presence of qualified tissue procurement
organizations in the medical examiner's facility creates difficulty for the medical examiner:

                           [Tissue procurement organizations], including some located
                   outside Harris County, increasingly vie with each other to recover
                   tissue from decedents at the [medical examiner's] facility. The
                   [medical examiner's] staff is challenged to referee disputes over
                   which competing [tissue procurement organizations] may use the
                   [medical examiner's] facility and staff, when, and how. The [medical
                   examiner's] staff must monitor and control the [tissue procurement
                   organizations'] use of resources including medical records,
                   equipment, and decedent blood samples. The [medical examiner's]
                   pathologists spend additional time on many donor cases as they work
                   around the remnants of recovery surgery during the postmortem
                   examination and as they communicate with the [tissue procurement
                   organizations] regarding preliminary cause of death information. The
                   presence of [tissue procurement organizations] in the [medical
                   examiner's] facility places a burden on the ability of the [medical
                   examiner's] office to perform duties mandated by law.3

Memorandum Brief, supra note 1, at 1 (footnote added). You inquire about a medical examiner's
authority to obtain reimbursement from a tissue procurement organization. See Request Letter,
supra note 1, at 1.


      2Dura muter is "the tough outermost membrane enveloping the brain and spinal cord." THENEWOXFORD
AMERICANDICTIONARY   530 (200 1).

          3A brief submitted to this office suggests that, contrary to the Memorandum Briefs assertions, the medical
examiner in your county does not provide tissue procurement organizations with "facilities or use of medical personnel."
Letter from Rusty Hardin, Rusty Hardin & Assocs., to Honorable Greg Abbott, Attorney General of Texas, at 21 (Dec.
2 1,2006) (on file with the Opinion Committee). "Rather," the brief continues, "all the [medical examiner] may be asked
to do is to expedite its statutory duties to perform an inquest so that it can release . . . tissue while [it is] still viable for
donation." Id. Resolving fact issues is beyond the purview of the opinion process. See Tex. Att'y Gen. Op. No. GA-
0446 (2006) at 9, 18. We must assume for the purposes of this opinion, therefore, that the requesting governmental body
has set forth a correct and complete version of the facts. See Tex. Att'y Gen. Op. No. GA-0249 (2004) at 2.
The Honorable Mike Stafford - Page 4           (GA-0544)



         A court strictly construes a statute imposing a fee-that is, a charge to cover costs and not
to raise revenue-and will not imply authority to impose a fee. See Moore v. Sheppard, 192 S.W.2d
559, 561 (Tex. 1946); McCalla v. City ofRockdale, 246 S.W. 654,655 (Tex. 1922); see also Tex.
Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,461 (Tex. 1997) (distinguishing
between license fees, which primarily serve to cover the costs of regulation, from taxes, which serve
to increase the general revenues). As the Texas Supreme Court has stated, "[nlo officer is permitted
to collect fees or commissions unless the same are provided for and the amount thereof declared by
law." McCalla, 246 S.W. at 655.

        Section 693.002(a)(6) authorizes a county to collect reimbursement, "not to exceed $1,000,"
from an organ procurement organization to be deposited in the county's general fund and applied
to "the additional costs incurred by the office of the medical examiner . . . in performing" duties
associated with attending an organ removal at a hospital. TEX.HEALTH& SAFETYCODEANN.
fj693.002(a)(6) (Vernon Supp. 2006). By contrast, section 693.002(b) does not authorize collecting
reimbursement from a tissue procurement organization, establish a maximum reimbursement, or
limit the uses to which reimbursement fees may be put. See id. § 693.002(b). Section 693.002 thus
does not authorize a medical examiner to recoup costs from a tissue procurement organization. CJ:
Tex. Att'y Gen. Op. No. GA-0389 (2005) at 11-12 (stating that section 693.002(a)(6) "[bly its plain
terms . . . does not provide for costs to be paid by a tissue procurement organization").

       Additionally, a medical examiner has no independent statutory authority to collect
reimbursement from a tissue procurement organization. Article 49.25 of the Code of Criminal
Procedure authorizes certain counties to establish a medical examiner's office and provides medical
examiners with certain duties and authority. See TEX.CODECRIM.PROC.ANN.art. 49.25 (Vernon
2006). Nothing in article 49.25 authorizes a medical examiner to set or collect fees for duties
associated with tissue procurement. See id.

        Nor may the county commissioners court require reimbursement on behalf of the medical
examiner. A county may not charge a fee unless specifically authorized to do so. See Nueces County
v. Currington, 162 S.W.2d 687,688 (Tex. 1942); McCalla, 246 S.W. at 655. No statute authorizes
a county to set a fee to be collected from a tissue procurement organization for the use of the medical
examiner's resources. See TEX.HEALTH        & SAFETY    CODEANN.$693.002 (Vernon Supp. 2006); cf
Tex. Att'y Gen. LO-94-066, at 2 (determining that a county commissioners court may not charge
funeral homes for transporting bodies to the county morgue); Tex. Att'y Gen. LO-92-020, at 2
(concluding that a county commissioners court has no authority to charge funeral homes a daily fee
for storing bodies at the medical examiner's office).

        You suggest, however, that statutory authority for the medical examiner's collection of a fee
is not necessary because a medical examiner's power to permit a tissue procurement organization
to remove tissue is discretionary, not mandatory. See Memorandum Brief, supra note 1, at 1-3. As
you point out, section 693.002(b) states that amedical examiner "may permit the removal of tissue."
TEX.HEALTH& SAFETYCODEANN. 5 693.002(b) (Vernon Supp. 2006) (emphasis added); see
Memorandum Brief, supra note 1, at 2. In general, the term "may" denotes "discretionary authority."
TEX.GOV'TCODEANN.3 3 11.016(1) (Vernon 2005). Thus, as you assert, a medical examiner "is
The Honorable Mike Stafford - Page 5                    (GA-0544)



under no obligation under the law to permit a [tissue procurement organization] to remove tissue."
Memorandum Brief, supra note 1, at 2. You cite Moore v. Sheppard, a 1946 Texas Supreme Court
case, and Attorney General Opinion GA-0364, issued in 2005, for the proposition that an officer may
collect a fee for performing duties the officer is not required by law to perform. See Memorandum
Brief, supra note 1, at 3; see also Moore, 192 S.W.2d at 560; Tex. Att'y Gen. Op. No. GA-0364
(2005) at 5-6.

         But the principle articulated in Moore and Opinion GA-0364, allowing officers to charge fees
for performing unofficial activities, does not apply here. The court in Moore determined that
providing unofficial copies of court opinions is not among a clerk's official activities, and Opinion
GA-0364 concludes that delivering eviction notices is not an official activity of a constable. See
Moore, 192 S.W.2d at 560-61; Tex. Att'y Gen. Op. No. GA-0364 (2005) at 6. By contrast,
facilitating tissue removal is an official activity of a medical examiner. See TEX.HEALTH       & SAFETY
CODEANN.6 693.002(b) (Vernon Supp. 2006). We know of no authority or policy supporting your
assertion that the word "may" in a statute, by itself, removes the activity that is subject to that statute
from the realm of official activities. Moreover, despite the use of the word "may" in section
693.002(b), the medical examiner is obligated by statute to determine whether to allow tissue
removal when requested to do so by a tissue procurement organization and to either allow the
removal or provide a notice of denial. See id. We therefore conclude that the medical examiner's
duties under section 693.002(b) are official activities for which any fee charged requires statutory
auth~rity.~

         You also suggest that section 693.002(b), to the extent it requires a county "to provide a free
facility and services to a private corporation," i.e., a tissue procurement organization, contravenes
article 111, section 52(a) of the Texas Constitution. See Memorandum Brief, supra note 1, at 3-4;
see also TEX.CONST.art. 111, § 52(a) (prohibiting the grant of public funds to private entities).
Article 111, section 52(a) prohibits the Legislature from authorizing a county "to lend its credit or to
grant public money or thing of value in aid of, or to any individual, association or corporation
whatsoever." TEX.CONST.art. 111,s 52(a). The Texas Supreme Court has set forth a three-part test
to determine whether a statute's grant of public resources violates article 111, section 52(a):

                  Specifically, the Legislature must: (1) ensure that the statute's
                  predominant purpose is to accomplish a public purpose, not to benefit
                  private parties; (2) retain public control over the funds to ensure that
                  the public purpose is accomplished and to protect the public's
                  investment; and (3) ensure that the political subdivision receives a
                  return benefit.

Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377,
384 (Tex. 2002).


         4Wenote that we are not here faced with facilities or resources offered to a tissue procurement organization that
may supplement, but are not necessary to, the tissue procurement procedure. See generally Memorandum Brief, supra
note 1 (articulating the issue).
The Honorable Mike Stafford - Page 6             (GA-0544)



        In analyzing your claim that section 693.002(b) is unconstitutional to the extent a medical
examiner must provide free access to tissue procurement organizations, a court would begin by
presuming the statute's constitutionality. See Walker v. Gutierrez, 111 S.W.3d 56'66 (Tex. 2003).
If possible, a court would interpret the statute "in a manner to avoid constitutional infirmities." Gen.
Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); see also Sullivan v.
Andrews County, 5 17 S.W.2d 41 0,413 (Tex. Civ. App.-El Paso 1974, writ ref d n.r.e.) (stating that
a court will "always lean in favor of the validity of a legislative act," and if there is reasonable doubt
about a statute's constitutionality, "the court will solve the doubt in favor of the statute" (quoting
Vincent v. State, 235 S.W. 1084, 1088 (Tex. Comm'n. App. 1921, judgm't adopted))). We
consequently begin by presuming that section 693.002(b) does not authorize a grant of public
resources in violation of article 111, section 52(a) of the Texas Constitution. Indeed, nothing in
section 693.002(b) expressly requires that county resources be used in the tissue removal procedure.

        In our opinion, providing free access to tissue procurement organizations, even if a grant of
public resources occurs, does not violate article 111, section 52(a). We consider that providing tissue
that would otherwise not be freely available to tissue procurement organizations serves a
predominantly public purpose and provides the county a return benefit. See Hearings on Tex. S.B.
35 1 Before the Senate Comm. on Health & Human Servs., 74th Leg., R.S. (Mar. 1,1995) (testimony
of Senator Moncrief) (tape available from the Texas State Library and Archives Comrn'n) (noting
that eight percent of potential organ donors in Texas fall within medical examiners' jurisdiction,
who, between 1990 and 1993, denied the release of organs from 48 potential donors, thereby
affecting at least 168 Texans who died because they did not receive a timely transplant); House
Research Org., Bill Analysis, Tex. S.B. 351'74th Leg., R.S. (1995) at 3 (noting that the bill would
"facilitate the timely removal and transplantation of organs and tissue from decedents subject to a
medical examiner inquest"). Further, both the requirement that a tissue procurement organization
be "qualified" and the medical examiner's discretion to determine whether to permit or deny a
request by a tissue procurement organization to remove tissue in a particular circumstance provide
the requisite control ensuring that any use of public resources accomplishes a public purpose. See
TEX.HEALTH& SAFETYCODEANN. $6 692.002(9) (Vernon 2003), 693.002(b) (Vernon Supp.
2006).

        For all of these reasons, we conclude that section 693.002(b) does not permit a county
medical examiner to recoup from a tissue procurement organization costs incurred when the medical
examiner permits the organization to use the medical examiner's facility and resources to remove
tissue.
The Honorable Mike Stafford - Page 7        (GA-0544)



                                     S U M M A R Y

                      A county medical examiner is not authorized to obtain
              reimbursement from a tissue procurement organization for costs
              incurred when the medical examiner permits the organization to use
              the medical examiner's facility and resources to remove tissue under
              section 693.002(b), Health and Safety Code.

                                            Very truly yours,



                                       Ah-  GREG              BBOTT
                                            ~ t t o r n e w e n e r aof
                                                                     l Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
