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 

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 provisions 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 individual? 

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 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 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 sauie available 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 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, 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, 1.21 S.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 creating a property right in the entire body or part thereof which can be transferred 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 'the medical 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 

REiVIEwED FOR THE A'ITORXEX -L 

BY: W. V. Geppert