                                The Attorney                 General of Texas
                                                        :jeptember     25,   1985
JIM MATT’OX
Attorney General



Supreme Cowl Building
                               Honorable     Ray Far&bee                              @dIdOn     No.   JM-356
P. 0. BOX 12549                Chairman
Austin. TX. 79711. 2549        State Affairs  Committee                              Re:    Whether Senate Bill   No. 32,
51214752501                    Texas State Senate                                    Acts 1985. 69th Legislature,       re-
Telex 910/974-1397
                               P. 0. Box 12068, Capitol            Station           pealed   article  4590-4.  V.T.C.S..
Telecopier  512#75.0255
                               Austin,  Texas   78711                                which relates    to the removal of
                                                                                     cornea1 tissue    from a decedent
714 Ja~kscm. Suite 700
Dallas, TX. 75202-4506
                               Dear   Senator    Farabee:
214l742-9944

                                     You ask whether Senate    Bill    No. 32, Acts 1985, 69th Leg.,         ch. 789
4924 Alberta Ave.. SUite 150   at 5699, which is to be codified          as article    4590-6,     V.T.C.S..   would
El Paso. TX. 799052793         lmplledly   repeal  article   4590-4,    V.T.C.S.     Senate   Bill    No. 32 deals
9151533-3484                   with   removal  of hvitmanorgans     and tissue.     Article    4590-4 deals     with
                               removal of cornea1 tissue.
1001 Texas. Suite 700
 ‘wston. TX. 77002.3111                Generally.     human organs and tissue          may be removed for research            or
  3i2235BB9                    transplant       only with     the consent of the decedent's           family    or the prior
                               consent      of   the   ilrcedent.      See V.T.C.S.       art.    4590-4.       In   1977 the
                               legislature       enacl,e:d a statutehat          allows     justices     of the peace and
505 Broadway, Suite 312
                               medical      examlnerrl    to permit     the removal       of a dead person's           cornea1
Lubbock. TX. 79401.3479
9061747~5235
                               tissue      without     c13nsent under      the     following      conditions:         (1)   the
                               decedent      died ur&r       circumstances   requiring       an Inquest      by the justice
                               of the peace or the medical             examiner;     (2) the justice        of the peace or
4309 N. Tenth, Suite B
                               medical      examiner    knows of no objection           by specified       family    members;
McAllsn. TX. 79501.1685
                               and     (3)   the    remyJa1 will      not  interfere       with    the   Investigation        or
5121992.4547
                               autopsy     nor alter       the post-mortem      facial     appearance.        V.T.C.S.     art.
                               4590-4.
200 Main Plaza, Suite 4W
San Antonio,   TX. 792052797
                                      Senate     Bill    No. 32 allows        a medical       examiner     to authorize         the
512l225dlQl
                               removal      of    various      human organs,         including       eyes,      under      similar
                               circumstances.          Uthough      article     4590-4     and Senate       Bill    No. 32 are
An Equal OpportUqitYl          similar     in structure        and content,       the    procedures     set out in Senate
Affirmative Action Employer    Bill    No.    32 are more restrictive              than those       in article        4590-4      in
                               several     ways.      Sl!nate Bill    No. 32 allows         only medical       examiners,       not
                               justices      of   the Peace.       to permit       removal      of organs.         Also,     under
                               Senate Bill      No. 32, the medical          examiner must obtain          consent to r-e
                               non-visceral       organs,    including      eyes, within      the first     four hours after
                               death and after          that he may remove          organs    without     consent     only upon
                               "determining        that     no   reasonable       likelihood       exists       that     [certain
                               specified      family     members]    can be identified          and contacted."           Article
Honorable    Ray Farabee      -   Paglr 2    (~~-356)




4590-4      has   no   compar     le    requirement.       Article      4590-4    is    more
restrictive      than   Senat r ‘: Bill    No.   32 in    that     Senate   Bill    No.   32
contains     no requirement      that removal      of tissue    not alter     post-mortem
facial    appearance.     Thus; article        4590-4.  unlike      Senate Bill    No. 32.
does not permit removal of ,the entire             eye from the socket.

       Statutes     may be repeallrd     expressly     or by implication.       Repeals   by
implication       are   not fsvo.:ed     and two statutes           on the   same subject
should both be given ef$ec:t. if possible.                  Gordon v. Lake,     356 S.W.2d
138, 139 (Tex.        1962).   @IO,     a general     law does not ordinarily        repeal
a specific      law by impl&cal::lon.       Rather,      the special    law Is construed
as an exception          to tb     general     law.       See Flowers     v.  Pecos    River
Railroad     Co.,     156 S.W&d     :!60. 263-64       (TX      1941).    These   rules    of
construction       support   the’ conclusion       that a statute      governing    removal
of   cornea1     tissue    and a :Later statute            governing   removal    of human
tissue   and organs      generally    should both be given effect.

      Another     well     establit,hed      rule  of construction,        however,      is that
an enactment       intended         to embrace all      the law on a certain             subject
repeals   all   former lawsion          Ithat subject.     McInnis    v. State,      603 S.W.2d
179 (Tex.     1980).        It hs      been suggested       that  this    rule    supports    the
conclusion     that Senate,$i!.l.         No. 32 impliedly       repealed      article     4590-4
because    Senate     Bill     No. :I;! was intended         to embrace all         law on the
subject    of removal        of humzrr: tissue     and organs     without      the consent     of
the decedent      or his       falpily.      The legislative      history     of Senate Bill
No.   32 shows,      however,,s th,%t the premise             of that      argument     --   that
Senate Bill     No. 32 was,.nt,ended            to embrace all     the law on the subject
-- is incorrect.                 :i
                                :,S
        The bill    analysis     to Senate Bill    No. 32 pointed        to the success     of
article     4590-4 in meetipg        the demand for cornea1         tissue     in Texas and
stated     that    Senate    Bil4   NC’. 32 would     “expand”     current     statutes    and
allow     “removal     of    other    organs    and tissues      under     well-controlled
circumstances.”          We tl#nl:      the   comments in      the    bill    analysis     are
evidence      that    the    leg&sl%ture     intended    Senate     Bill    No.    32 to be
cumulative      of article      4590-4.

       Even more convinc@g         is that a bill       was introduced       in the same
legislative     session   in yhilh    Senate Bill    No. 32 was enacted that would
have    amended article      +$9(1-,4 to change       the procedure       for    obtaining
consent to remove cornea1         tissue.     S.B. No. 1219, Acts 1985, 69th Leg.
That bill     was passed    % t’1e Senate on April           18.    Senate Bill     No. 32
was passed in the Senatp 0:~ the same day.              Transcript,     Senate Session,
April     18, 1985.     Seoaqg Ml1        No. 1219 was referred         to in a Senate
discussion     of Senate B,ul      No. 32 on that day.           Thus, we think it is
clear    that the Senate yes wuare of the existence              of each bill      when it
passed     the other    and tkat it intended        the subject      matter    of article
4590-4 to be contained$n         ,% statute    separate    from Senate Bill       No. 32.




                                       p.   1630
Honorable   Ray Farabee     -   Page    3     (JM-356)




        Although     Senate Bill   No. 1219 was never considered        by the entire
Rouse,     at least     the members of the committee on Public          Health,     which
considered       it,    were  awa'ce of   the   existence     of  both    bills.       The
legislature       did    not intend   for  Senate    Bill  No. 32 to embrace           the
entire     subject    of removal of human organs       and tissue   without      consent.
Thus, even under McInnis,          Senate Bill   No. 32 did not impliedly          repeal
article     4590-4.

                                        SUMMARY

                Senate Bill    ho. 32, Acts           1985, 69th Leg.,:which
             is to be codified    as article           4590-6. V.T.C.Sd,    did
             not impliedly   ropeal  article           4590-4, V.T.C.S:




                                                    4
                                                         Ve




                                                         JIM      MATTDX
                                                         Attorney  General.   of   Texas

TOM GREEN
First Assistant     Attorney       Gt!neral

DAVID R. RICHARDS
Executive Assistant       Attorney      General

ROBERT GRAY
Special Assistant      Attorne:r     General

RICK GILPIN
Chairman,  Opinion     Cormnittec!

Prepared    by Sarah Woelk
Assistant    Attorney Genera:1

APPROVED:
OPINION COMMITTEE

Rick Gilpin,     Chairman
Colin   Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer    Riggs
Nancy Sutton
Sarah Woelk




                                               p.   1631
