### THEAITORNEY GENERAL OFTEXAS

October 

### 28, lg.59

m. Raymona

F.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 lastwill 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 opinionwith regard to the effect of the provisions of House Bill 

### 264,Acta 

### 56thLegislature,Regular Session, 1959, Chapter 

### 63,page 

### 116,on the AnatomicalBoard.

The questionsyou present are as follows: 1. "Can this law be interpretedto include the Anatomical Board 88 a donee under the will of an individual?
2. "Can it be specified that the donee for an entire body must be the Anatomical Board?'
House Bill 

### 264provides in part ae follows: “Section 1. Any inhabitantof this State of legal age and of sound mind may by his will or by otherwritten instrument 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 rehabilitationof dieeased or worn-out organs,members, or parts of the bodies of livinghumane.Mr. Raymond. F. Blount, page 2 (WW-720)

"Sec. 2. Any such bequest, donation, authorization or consentmade ptisuant to Section 1 of this Act shall be by written instrument signed by the personmaking or giving the same and shall be witnessed by two (2)persons of legal age. Each'instrumentmay designate the donee, but such designatidn shall not be necessary to its validity. A doneemay 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 inwhich 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 suchhospital or physician shallhave full authority to take and remove said body or the organs, members, or parts thereofwhich such donorhas designated and to make the sauie available to any person or institution in need ,thereof. Where a donee is named in such instnunent, any 

### ady licensedphysician acquiring possession or 

### custody of the body shallhave the authority to remove from the body the organs,members, or parts thereofwhich the donor has designated and to deliver the same, or where so aesignated, 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, executeda valid written agreement as providedherein. 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.2d646 (Tex.Civ.App. x936), affirmed 

### 132Tex. 

### 280,1.21 S.W.2d 986 (1938);Burnett v.Sur@, 

### 67S.W.2d 1041 (Tex.Civ.App.1934, error refused);Curlln v. Curlin, 

### 228S.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 

### 264was -tochange the common law by creating a property right in the entire body or part thereofwhich can be transferred at the death of the donor by will or other instrlnnent.However, the transfermust 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 statutespertaining to property rights in dead bodies were Articles 

### 3583through 3590 of Vernon's AnnotatedTexas Civil Statutes. These Articles relate to the functiona, powers and duties of the AnatomicalBoard.

Article 

### 4583of Vernon'sAnnotated Texas Civil Statutes reads in part a8 follows:

"The professorof anatomy and the professor of surgery of each of 'the medical schools or collegesnow incorporated,and of the severalmedicaland dental schools and collegeswhich may hereafter be incorporated in this State are constituteda 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 institutionsas, under the provisions of this law, are entitled thereto.
. . .r (Emphasisours)
It will be noted from the above quoted language that the purpose of the Anatomical Board is to distributeand deliver dead human bodies, but only those “deadhuman bodies hereinafter described." This languagehas reference to Article 4584 of Vernon's AnnotatedTexas Civil Statuteswhich we quote in part:

*All public officers, agents, and servants,and all officers, agents and servants of any county, city, town, dietrict or othermunicipality, 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 intohis 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 examinationby the medical staff of public hospitals or institutionsfor the insane, to be used within this State for the advancement of medical science;
. . .* (Emphasisours)
It is a well'establishedgeneral rule that administrativeboards or agencies created by statute derive their powers and authority from legislativeenactment 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 statutesauthorize 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 

### 56thLegislature,Regular Session, 1959,Chapter 

### 63,'page

### 1.16.

Consequentlyyour second questionmust necessarilybe 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 bodymust be the Anatomical Bo82-a. SUMMAKK

The purpose of House Bill 

### 264,Acts 

### 56th Legislature,Regular Session, 1959, Chapter 

### 63,page 

### 116was to create a property right in dead hwnan bodies that can be transferredat 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 AnatomicalBoard cannot be a donee under this law, nor can itbe specified that the Board must be the donee of an entire body under HouseBill 

### 264.
Yours very truly, WLlL WILSON AttorneyGeneral of Texas

WOS :meMr. 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 REiVIEwED

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