                       The Attorney        General of Texas
                                      January 4, 1978
JOHN L. HILL
Attorney General


                   Honorable John Wilson, Chairman      Opinion No. H-1109
                   Committee on Health and Welfare
                   House of Representatives             Re: Whether consent of
                   Austin, Texas                        next-of-kin is required
                                                        for the taking of cornea1
                                                        tissue from a decedent
                   Dear Chairman Wilson:                under H.B. 307.

                        You have requested our opinion concerning the following
                   question:

                             k&y a medic&examiner    or justice of
                             the peace permit the removal of cornea1
                             t'issue by an eye bank official from a
                             decedent who dies under circumstances
                             requiring an inquest without the prior
                             consent of the decedent's next-of-kin?

                        You have referred us to article 4590-4, V.T.C.S.,
                   enacted as House Bill 307,of the 65th Legislature, wh.ich
                   provides in part:

                               Section 1. On a request from an autho-
                             rized official of a nonprofit corporation
                             chartered under the laws of Texas, to
                             obtain, store, and distribute donor eyes
                             to be used by those licensed to practice
                             medicine for cornea1 transplants, for
                             research, or for other medical purposes
                             and whose medical activities are directed
                             by one licensed to practice medicine in
                             Texas, for cornea1 tissue, the justice
                             of the peace or the medical examiner
                             may permit the taking of cornea1 tissue
                             if:

                                (1) the decedent from whom the tissue
                             is to be taken died under circumstances
                             requiring an inquest by the justice of
                             the peace or the medical examiner;




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Honorable John Wilson        - Page 2      (U-1109)



            (2) no objection by a person listed
          in Section 2 of this Act is known by
          the justice of the peace or the medical
          examiner; and

             (3) the removal of cornea1 tissue
          will not interfere with the subsequent
          course of an investigation or autopsy,
          or alter the postmortem facial appear-
          ance.

            .   .   .   .

            Sec. 3. The justice of the peace, the
          medical examiner, and the eye bank official
          are not liable for damages in a civil action
          brought by a person listed in Section 2 of
          this Act who has not objected prior to the
          removal of the corneal:tissue on any theory
          of civil recovery based on a contention that
          the consent of plaintiff was required prior
          to the removal of cornea1 tissue as autho-
          rized by this Act.

Acts 1977, 65th Leg., ch. 11, at 26-27. Section 2 of the Bill
provides for objections by certain relatives.

     In light of the positive authorization-in section 1 and
the protection from liability in section 3 it is abundantly
clear that, so long as no objection has been made, consent of
next-of-kin is not necessary for the removal  of cornea1 tissue
from a decedent who died under circumstances requiring an
inquest. See generally Love v. Aetna Casualty & Surety Co.,
99 S.W.2d 646 (Tex. Civ. App. -- Beaumont 1936), aff'd, 121
S.W.Zd 986 (Tex. Comm'n App. 1938, opinion adopted).

                            SUMMARY

          A medical examiner or justice of the
          peace may permit the removal of cornea1
          tissue by an eye bank official for a
          decedent who dies under circumstances
          requiring an inquest without the prior
          consent of the decedent's next-of-kin.




                                 p. 4544
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            Eionorable John Wilson   T Page 3   (ii-1109)
                                                             .


                                         Very truly yours,




           APPROVED:




           DAVID M. KENDALL, First Assistant




           jst




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