                                  August    8, 1975


The Honorable Hal Weathersby                          Opinion No.   H-   663
5323 Harry Hines Blvd.
Dallas, Texas  75235                                  Re: Authorization    of the Anatomical
                                                      Board of the State of Texas to license
                                                      facilities for the storage of human
                                                      bodies.

Dear Dr.   Weathersby:

         The Anatomical  Board of Texas has requested our opinion concerning
the Anatomical Gift Act, article 4590~2, .V. T-C. S. and article 4583,. V, T. C. $. ,
which creates the Anatomical    Board and defines its duties.  The Board has asked:

                   1)    Does the Anatomical  Board have regulatory
                         authority under the Texas Anatomical  Gift Act?

                   2)    Since the Anatomical    Gift Act lists donee in-
                         stitutions not listed in article 4583, are the
                         two in conflict or does the Anatomical    Board
                         retain the authority to regulate the distribution
                         and use of all human bodies for education and
                         research?

                   3)    Is the Anatomical Board authorized to license or
                         approve a bank or storage facility for operation
                         under the Anatomical  Gift Act?

                   4)    Is a duly incorporated    chiropractic  college located
                         in Texas entitled to receive human cadavers and be
                         represented  by membership      on the Anatomical   Board
                         under the provisions   of article 4583?

          The Anatomical   Board is created and its duties defined, by article 4583
et seq., V. T. C. S. Prior to the 1961 amendment of article 4584,V. T. C. S., there
was no connection between the Board and the Anatomical         Gift Act.  See Attorney
General Opinion WW-720     (1959).  In that opinion it was held that theBoard     could re-
ceive only those human bodies “required to be buried at public expense” and that the
Board could not be a donee under the Anatomical      Gift Act.    While article 4584 has
been amended so as to permit a person to designate a donee authorized by the Board
as the recipient of his body, the Anatomical    Gift Act contains no reference    to the




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The Honorable      Hal Weathersby     - Page 2     (H-663)



Anatomical   Board.

                      [A] n administrative   agency . . . -has
                      only such powers as are expressly
                      granted to it by statute together with
                      those necessarily    implied from the
                      authority conferred or duties imposed.
                      Stauffer v. City of San Antonio,   344 S.
                      W. Zd 158,160 (Tex. Sup. 1961).

State v. Cortez,   333 S. W. 2d 839 (Tex. Sup. 1960); Corzelius     v. Railroad
Commission,     182 S. W. 2d 412 (Tex. Civ. App -- Austin 19vilroad
Commission    v. Fort Worth & D. C. Ry. Co.,       161 S. W. 2d 560 (Tex. Civ. App. --
Austin 1942, writ ref’d. w. o. m. ). Since the Board is not given express regula-
tory authority in the Anatomical    Gift Act, and since this authority is not necessarily
implied from its authority and duties to distribute those bodies under its control
pursuant to article 4583 et seq.,    in our opinion the Board may not promulgate     re-
gulations under the Antomical    Gift Act.   V. T. C. S. art. 4590-2,.

           Article 4585 provides that the Anatomical    Board is to distribute those
bodies over which it has control pursuant to article 4584 to “schools,       colleges,
physicians,    and surgeons. ” Article 4585A authbriees’the    Board to deliver bodies
to the State Board of Embalming and to certified      schools of embalming.      Article
4584 provides that the bodies “be used within this state for the advancement         of
medical science. ” Those bodies under the Board’s        control pursuant to article 4584
are those requir,ed to be buried at public expense and those left by will or other
written instrument to a medical school,     dental school,   or a donee authorized by the
Board.     Where such a body is not left tc a specific donee, the Board may in its
discretion   designate a school,  college, physician,   surgeon,  the State Board of Em-
balming,    or a certified school of embalming to receive the body for the advancement
of medical science.

         Section    4 of the Anatomical    Gift Act provides:

                          The following persons may become donees of gifts
                      of bodies or parts thereof for the purposes         stated:
                         (1) any hospital,    surgeon,    or physician,   for medical or
                      dental education,    research,     advancement    of medical or
                      dental science,   therapy or transplantation;       or
                         (2) any accredited    medical or dental school,       college or
                      university for education,      research,    advancement     of medical
                      or dental science or therapy; or
                         (3) any bank or storage facility,       for medical or dental ed-
                      ucation,  research,    advancement      of medical or dental science,
                      therapy or transplantation;      or




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The Honorable       Hal Weathersby    - Page 3    (H-663)




                         (4) any individual specified   by a licensed physician
                      for therapy or transplantation    needed by him.

          Section    2(a) provides:

                       ‘Bank or storage facility’ means a facility licensed,
                     accredited  or approved under the laws of any state for
                     storage of human bodies or parts thereof.

          The Anatomical       Board is not designated as a permissible   donor under
the Anatomical      Gift Act.   The Board is neither expressly  authorized to license
storage facilities     nor are there standards provided for the licensing or operation
of such facilities.     There is no statutuory indication that the Anatomical    Board
was intended to license or supervise       storage facilities. In the absence of such
an indication the Board is not authorized to license storage facilities.

            We are aware of no other agency which is authorized to license storage
faeilities.    Certainly a certificate of incorporation  is insufficient to constitute
licensing or approval of such a facility,     for there would be no control over the
procedures     employed by such a facility and the manner in which human bodies
are utili.zed.

           Acc,ordingly,  it is our opinion that there is no procedure for the licensing,
accreditiag.    or approval of storage facilities  under article 4590-2,   V. T. C. S.
Hospitals,    surgeons,  physicians,   medical and dental schools,   colleges and uni-
versities,   and individuals specified by physicians    for therapy or transplantation    are
thus the only possible recipients     within the State under article 4590-2,    section 4.

          In our opinion, the Board has been given no authority over the gift bf
bodie,s and the recipient institutions under the Anatomical Gift Act. However,           the
bequest provision of article 4584 provides:

                          Any inhabitant of the State of Texas of legal age
                      and of sound mind may, by his will or by other written
                      instrument,   arrange for or prescribe   that his body
                      be used for the purpose of advancing medical     science
                      and that it be delivered to a medical school or dental
                      school, or other donee authorized by the Anatomical
                      Board.

In contrast,  section 3 of article 4590-Z provides that any individual who has testa-
mentary capacity “may give all or any part of his body” and enumerates        other per-
sons who may execute      the gift.   The manner of execution of gifts under article 4584
and article 4590-2,   section 5, are quite similar.     Thus, where a person gives his en-
tire body to a medical school,      dental school, or a college, physician, or surgeon
authorized by the Board to receive bodies under article 4584, the gift would come




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The Honorable    Hal Weathersby     -   Page 4      (H-663)




within the provisions     of either article 4584 or the Anatomical      Gift Act.    In our
opinion the Board may consider this class of gifts to be made under article 4584
and thus under its jurisdiction.      However,   the following classes     of gifts may be
made only under the Anatomical        Gift Act and are not within the Board’s juris-
diction:    1) A gift made by a person of only part of his body.        2) A gift made by a
person of all or part of another person’s      body under section 3(b) of the Anatomical
Gift Act.     3) A gift made to an “individual specified by a licensed physician for the-
rapy or transplantation      needed by him. ” Sec. 4(4).      4) A gift made to a hospital.
Sec. 4(l).     5) A gift made to a surgeon,   physician,    college or university not author-
ized by the Board to receive bodies under article 4584.           There is therefore no con-
flict between article 4584 and article 4590-2,      although the provisions       of the two
articles   do overlap.    While the Board has no statutory authority concerning these
classes    of gifts, we believe it may provide registration       procedures    and encourage
their use for all gifts of bodies and parts therof.      -See  article  4583.

             Your fourth question concerns chiropractic       colleges.    In our opinion,
a chiropractic   college is within the meaning of “college”       as contained in article
4584 and section 4(2) of the Anatomical       Gift Act.  Thus a chiropractic     college may
be delivered bodies from the Board, may be authorized by the Board to receive
bodies given under article 4584, and may be the recipient of a body pursuant to
a gift under the Anatomical      Gift Act.  In each instance,   the bodies must be used
for the advancement      of medical science.    However,   in our opinion a chiropractic
college is not a medical school or college as that term is used in article 4583 and
is therefore   not entitled to representation    on the Anatomical     Board.   Constitutional
Convention Advisory       No. 3( 1974).

                                   SUMMARY

                         The Anatomical    Board of Texas has no
                    regulatory authority   over gifts or the re-
                    cipients thereof pursuant to the Anatomical
                    Gift Act.  V. T. C. S. article 4590-Z.

                          There is no conflict between article 4584
                    and article 4590-2   although some provisions   of
                    the two articles  overlap.   Where a gift is author-
                    ized by both statutes the Board may consider it
                    to be under article 4584 and hence within its
                    jurisdiction.

                          There is no agency which is empowered to
                    license storage facilities   for human bodies un-
                    der article 4590-2,   V. T. C. S. A certificate of
                    incorporation  is insufficient to serve as such a
                    license.




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The Honorable    Hal Weathersby      - Page   5    (H-663)




                         A duly incorporated    chiropractic  college may
                      be the recipient of human bodies or parts thereof
                      under either article 4584 or article 4590-2,    but
                      is not entitled to representation   on the Anatomical
                      Board under article 4583.

                                                      Very truly yours,




                                                      Attorney   General   of Texas


APPROVED:




DAVID     lv& KENDALL,     Fir&   Assistant




Opinion   Committee


jad:




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