            THEAITORNEY                     GENERAL
                           OFTEXAS




                               October 28, lg.59


m. RaymonaF. m0w.
Secretary4haarer
Anatomical Boara of the State of Texas
University of Texas Medical Branch
Galveston, Texas
                                         opinion     NO. ww-720

                                         Re:       Whether the Anatomical Board
                                                   may be the donee of an entire
                                                   body of an individual by his
                                                   last will or other instrument,
                                                   pursuant to the provisions of
                                                   House Bill264, Acts 56th
                                                   Legislature, Regular Sesaion,
Dear Mr. Blount:                                   1959, Chapter 63, page 116.

        You have requested our opinion with regard to the effect of the pro-
visions of House Bill 264, Acta 56th Legislature, Regular Session, 1959,
Chapter 63, page 116, on the Anatomical Board.

        The questions you present are as follows:

             1. "Can this law be interpreted to include the
        Anatomical Board 88 a donee under the will of an indi-
        vidual?

             2.  "Can it be specified that the donee for an
        entire body must be the Anatomical Board?'

       House Bill 264 provides in part ae follows:

              “Section 1. Any inhabitant of this State of legal age
        and of sound mind may by his will or by other written in-
        strument arrange fdr or prescribe for the disposition to be
        made, after death, of his body, or any organ, member, or part
        thereof, provided the came is for the purpose of advancing
        medical  science or for the replacement or rehabilitation of
        dieeased or worn-out organs, members, or parts of the bodies
        of living humane.
Mr. Raymond.F. Blount, page 2 (WW-720)



            "Sec. 2. Any such bequest, donation, authorization
       or consent made ptisuant to Section 1 of this Act shall
       be by written instrument signed by the person making or
       giving the same and shall be witnessed by two (2) persons
       of legal age. Each'instrument may designate the donee,
       but such designatidn shall not be necessary to its validity.
       A donee may be an individual, hospital, institution, or a
       bank maintained for the storage, preservation, and use of
       human bodies or the organs, members, or parts thereof.
       If no specific donee is named in such instrument, then
       the hospital in which the donor dies shall be considered
       to be the donee, and if such donor does not die in a
       hospital, then the attending physician shall be considered
       to be the donee; and such hospital or physician shall have
       full authority to take and remove said body or the organs,
       members, or parts thereof which such donor has designated
       and to make the sauieavailable to any person or institution
       in need ,thereof. Where a donee is named in such instnunent,
       any ady licensed physician acquiring possession or custody
       of the body shall have the authority to remove from the
       body the organs, members, or parts thereof which the donor
       has designated and to deliver the same, or where so aesig-
       nated, the entire body, to the named donee. The hospital
       or physician shall not be liable civilly or criminally
       for removing said organs or any part thereof from the body,
       providing the donor has, prior to death, executed a valid
       written agreement as provided herein. No appointment of
       administrator, executor, or court order shall be necessary
       before the removal of said organs."

        At common law there is no right of property in the dead body of a
hunan being. The courts do recognize and protect the right to preserve
the remains and bury the corpse but in the absence of a statute this is the
only right ace may have in a dead body. Love v. AEtna Casualty & Surety Co.,
gg s.W.2d 646 (Tex.Civ.App. x936), affirmed 132 Tex. 280, 1.21S.W.2d
986 (1938); Burnett v.Sur@,    67 S.W.2d 1041 (Tex.Civ.App. 1934, error
refused); Curlln v. Curlin, 228 S.W. 602 (Tex.Civ.App. 1921, no writ history);
Foster v. Foster, 220 S.W. 215 (Tex.Civ.App. 1920, no writ history); Wren v.
Texas & Pacific R. Co., 144 S.W. 682 (Tex.Civ.App. 1912, no writ history).

        The purpose of House Bill 264 was -to change the common law by creat-
ing a property right in the entire body or part thereof which can be trans-
ferred at the death of the donor by will or other instrlnnent. However, the
transfer must be in the manner an& for the purposes prescribed in this statute.
Mr.    Raymond F. Blount, page 3 (WW-720)



        Prior to the passage of House Bill 264 the only statutes pertaining
to property rights in dead bodies were Articles 3583 through 3590 of Vernon's
Annotated Texas Civil Statutes. These Articles relate to the functiona,
powers and duties of the Anatomical Board.

             Article 4583 of Vernon's Annotated Texas Civil Statutes reads in
part    a8   follows:

                  "The professor of anatomy and the professor of
             surgery of each of 'themedical schools or colleges now
             incorporated, and of the severalmedicaland dental
             schools and colleges which may hereafter be incorporated
             in this State are constituted a board, to be known as the
             Anatomical Board of the State of Texas, for the distribution
             and delivery of dead human bodies, hereinafter described, to
             and among such institutions as, under the provisions of this
             law, are entitled thereto. . . .r (Emphasis ours)

          It will be noted from the above quoted language that the purpose of
the Anatomical Board is to distribute and deliver dead human bodies, but
only those “dead human bodies hereinafter described." This language has
reference   to Article 4584 of Vernon's Annotated Texas Civil Statutes which
we quote in part:

                   *All public officers, agents, and servants, and all
             officers, agents and servants of any county, city, town,
             dietrict or other municipality, and of any and every almshouse,
             prison, morgue, hospital, or any other public institution,
             having charge or control of dead humen bodies required to be
             buried at uublic expense are hereby required . . . to announce
             to said board . . . whenever such body or bodies come into his
             or their possession, charge or control, and shall . . . deliver
             such body or bodies, and permit the B&d   board and its agents
             and the physicians and surgeons, from time to time designated
             by them who may comply with the provisions of this law, to
             take and remove all such bodies as are not desired for post
             mortem examination by the medical staff of public hospitals
             or institutions for the insane, to be used within this State
             for the advancement of medical science; . . .* (Emphasis ours)

        It is a well'established general rule that administrative boards
or agencies created by statute derive their powers and authority from
legislative enactment and have only such powers as are expressly granted
by statute. Volume 1, Texas Jurisprudence Supplement, page 97, Administrative
LOW and Procedure, Section 8.
Mr. Raymond F. Blount, page 4 (WW-720)



        The only bodies that the statutes authorize the Anatomical Board
to receive and distribute are those dead human bodies required to be buried
at public expense.

        Therefore,  in answer to your first question, it is our opinion
that the Anatomical Board dannot be a donee under a will or other instrument
pursuant to the provisions of Rouse Bill 264, Acts 56th Legislature, Regular
Session, 1959, Chapter 63, 'page 1.16.

         Consequently your second question must necessarily be answered in
the negative; since the Anatomical Board cannot be a donee under this law,
it certainly cannot be said that the donee for an entire body must be the
Anatomical Bo82-a.

                                   SUMMAKK

                The purpose of House Bill 264, Acts 56th
                Legislature, Regular Session, 1959,
                Chapter 63, page 116 was to create a
                property right in dead hwnan bodies that
                can be transferred at the death of the
                donor by will or other instrument; the
                Anatomical Board is authorized to receive
                and distribute only those dead human bodies
                required to be buried at public expense;
                therefore, the Anatomical Board cannot be a
                donee under this law, nor can it be specified
                that the Board must be the donee of an entire
                body under House Bill 264.

                                         Yours very truly,

                                         WLlL WILSON
                                         Attorney General of Texas




WOS :me
Mr. Raymond F. Blount, page 5 (Ww-720)




APPROVED

OPIIiIOIi
        COMMITTEE
Gee. P. Blackburn, Chairman

B. H. Timins, Jr.
I#.P. Lollar
Ralph Rash
J. Arthur Sandlin

REiVIEwEDFOR THE A'ITORXEX-L
BY: W. V. Geppert
