                       The Attorney                General of Texas
                                              August        5,     1980

MARK WHITE
Attorney General



                   Glenn V. Russell, PhD                                  Opinion No. NW-219
                   Executive Secretary of the Board
                   Anatomical  Board of the State of Texas                Re:    Whether publicly supported
                   University of Texas Medical Branch                     medical and dental schools are
                   Galveston, Texas   77550                               required to post a bond in order
                                                                          to receive    cadavers   from the
                                                                          State Anatomical   Board

                   Dear Dr. Russell:

                         You have requested    our opinion regarding the applicability                 of article
                   4588, V.T.C.S., to state and federal medical schools. That statute                 provides:

                                    No school, college, physician, or surgeon shall be
                               allowed   or permitted    to receive   any such [dead
                               human]    body or bodies    until bond shall have been
                               given to the State by such physician or surgeon, or by
                               or in behalf of such school or college, to be approved
                               by the clerk of the county court in and for the county
                               in which such physician or surgeon may reside, or in
                               which such school or college may be situated, and to
                               be filed in the office of said clerk; which bond shall
                               be in the penal sum of one thousand         dollars, con-
                               ditioned that all such bodies which the said physician
                               or surgeon, or said college, shall receive thereafter
                               shall be used, and that all experiments     on the lower
                               animals shall be conducted only for the promotion of
                               medical science.

                   You first ask whether      a state-supported             medical   school   must     post   the
                   requisite bond in order to receive cadavers.

                           It is generally acknowledged    that, in the absence of a constitutional
                   provision to the contrary, a state may impose a licensing requirement          upon a
                   political subdivision or agency of the state.      53 C.J.S., Licenses S6, at 472.
                   Article 4588 &es not by its terms except state-supported          institutions   from
                   its coverage.     In Attorney General Opinion H-464 (19741, this office held that
                   the University     of Texas could properly hold a mixed beverage permit issued
                   by the Texas Alcoholic Beverage Commission.         The opinion stated that:




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Glenn V. Russell   - Page Two          (MW-219)




                It is not uncommon for a state agency or its employees to be
            required to be licensed by another agency. For example, drivers
            of state vehicles are not exempt from the requirements         of
            obtaining    a driver’s license...  State owned nursing homes are
            specifically   required to be licensed.

       In our opinion, the bond requirement       of article 4588 is similar to the licensing
provisions   discussed in Attorney    General Opinion H-464. Just as the possession of a
mixed beverage permit, with its attendant       cost, serves to bring the University of Texas
within the regulatory      ambit of the Alcoholic           Beverage    Commission    for limited
purposes, so the pceting of the bond specified           in the statute    assists the regulatory
agency, the Anatomical       Board, in determining         that cadavers    received   by a state
medical school will be used “only for the promotion of medical science.”             We conclude,
therefore,  that article 4588 is fully applicable    to state-supported     medical schools.

       With regard to a federally-operated  facility, however, the result is different.   In
Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956), the Supreme Court, in holding that a
state may not subject a federal contractor        to state licensing requirements,   quoted
from its earlier opinion in Johnson v. Maryland, 254 U.S. 51, 57 (1920):

                 . . . [Tl he immunity of the instruments  of the United States
            . . . in the performance     of their duties extends to a require-
            ment that they desist from performance         until they satisfy a
            state officer . . . that they are competent    for a necessary part
            of them and pay a fee for permission to go on.

352 U.S. at 190.

        In Commonwealth     of Kentucky Ex Rel. Hancock v. Ruckelshaus,           497 F. 2d 1172
(6th Cir., 19741, aff’d, 426 U.S. 167 (1976), the court held that a federal agency located
in Kentucky was not required to obtain a permit from the state before operating an
installation  which generated     air contaminants.    In the absence of a clear Congressional
intent to stiject    federal agencies to state regulation,       the court said, the Supremacy
Clause forbids application      of the permit requirement.         Since article 4588, V.T.C.S.,
may not constitutionally    Abeapplied to a federally-operated       medical school we conclude
that it is not applicable    to such facilities.    Accordingly,   article 4588, V.T.C.S., is not
applicable to any federally-operated       medical school.

                                        SUMMARY

                Article 4588, V.T.C.S., which requires every school, college,
            physician or surgeon to post a bond before receiving cadavers
            from the Anatomical      Board, is applicable to state-supported
            medical schools but not to federally-operated  medical schools.




                                                  MARK        WHITE
                                                  Attorney   General of Texas




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Glenn V. Russell   - Page Three    (MW-219)




JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared    by Rick Gilpin
Assistant   Attorney General

APPROVED:
OPINION COMMlTTEE

C. Robert Heath,    Chairman
Susan Garrison
Rick Gilpin
Ann Kraatz




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