                         The Attorney              General of Texas
                                              May 23,     1980
MARK WHITE
Attorney General


                   Robert Bernstein, M.D.                     Opinion No. MW-182
                   Commissioner of Health
                   Texas Department of Health                 Re: Health    Department       Rules
                   llO0 West 49th Street                      Requiring Embalming
                   Austin, Texas 78756

                   Dear Dr. Bernstein:

                          You ask if Acts 1979, 66th Legislature, chapter 592, section 10 at 1249
                   (codified as footnote to V.T.C.S., article 4582b) makes the rules of the Texas
                   Department of Health on embalming ineffective.          The rules in question
                   require that a human body must be embalmed in certain circumstances.

                         Section 10 of Acts 1979,66th Legislature,   chapter 592 provides:

                                  Sec. 10. [The State Board of Morticians1 shall
                              promulgate   no rule or regulation requiring em-
                              balmhg.    No other state sgency shall promulgate or
                              enforce a rule or regulation requiring embalming
                              without a findi% that such rule or regulation is
                              necessary to protect the public health.

                   Section   10 specifically provides that the portions of the Board’s rules
                   requiring embalming cannot be enforced unless and until the State Board of
                   Health makes a finding that the rule is necessary to protect the public
                   health.   We note that this conclusion is consistent with the specific intent
                   expressed In the Senate debate on the bill on May 24, 1979. (Transcript of
                   portions of Senate &bate, May 24, 1979. Certified copy on file in office of
                   the Secretary of the Senate).

                          A brief stimitted  to this office hes suggested, however, that the
                   caption of the statute was not sufficient to encompass the prohibition on the
                   enforcement of the State Board of Health’s rules. It was vigorously urged
                   that the caption would put a reader on notice that the rul~making authority
                   of the State Board of Morticians would be covered by the bill but that it
                   would not provide notice that the rulemaking power of any other agency
                   would be affected. We bsve extensively reviewed this contention.

                          Within a few years after the passage of our current constitution, the
                   Supreme Court adopted a rule for deeid& whether a statute violates the
                   article III, section 35 requirement of the Texas Constitution that a bill




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Robert Bernstein, M.D. - Page Two           (~~-182)




contain only cne subject which must be expressed in its caption.       The court stated and
has consistently followed the conclusion that the constitution:

                . . .require[sl only the general or ultimate object to be
           stated in the title, and not the details by which the object is to
           be attained.        Any provision calculated to carry the declared
           object into effect is unobjectionable,       although not specially
           indicated in the title.

Johnson v. Martin, 12 S.W. 321, 324 (Tex. 1889); See also King v. Carlton Ind. School
%.,   295 S.W. 2d 408,411 (Tex. 1956) and cases cited therein.

     The caption of this bill provides in part:

               An Act relating     to regulation      of funeral directors,
           embalmers,   and funeral homes and apprentices         in funeral
           directirg  and embalming; defining offenses and providing
           penalties; amend& Chapter 251, Acts of the 53rd Legislature,
           Regular Session, 1953, as amended (Article 45824 Vernon’s
           Texas Civil Statutes), as follows:    [list of sections amended
           omitted].

Acts 1979, 66th Leg., ch. 592, at 1233. We believe the reference to the regulation of
embalmers and apprentices in embalming is sufficient to encompass the prohibition on
rules requiring embalming      where m public health necessity      has been found.
Accordingly, the legislation does not suffer from a caption defect.

                                     SUMMARY

               The rules of the State Board of Health requiring embalming
           in certain circumstances may mt be enforced unless and mtil
           there is a finding of public health necessity.



                                            &hj    Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General




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    Robert Bernstein, M.D. - Page Three        (NW-182)
.



    Prepared by C. Robert Heath
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    C. Robert Heath, Chairman
    Jon Bible
    Carla Cox
    Rick Gilpin
    Bruce Youngblood




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