Mr. Horace Soule Railroad Commission ofTexas Motor Transportation Section Aus tin, Texas

Dear Mr. SOL&: Opinion **No.** C-355 Re: Whether the Motor Transportation Division of the Railroad Commission of Texas has jurisdiction to regulate the transportation ofdead human bodies. You recently requested an opinion ofthis office on the following questions:

“Does the Railroad Commission of Texas, Motor Transportation Division, have the jurisdiction to regulate the transportation of dead [human] bodies ?

“Are dead [human] bodies to be considered as ‘property or’commodities’ within the language of the Motor Carrier **Statutes,** Article 911b,V.A.C.S.?” The above set out questions proposed by you are directly related and, therefore, will be discussed together, Article 911b,Vernon’s Civil Statutes, commonly referred to as the Motor Carrier Act, provides for regulation by the Railroad Commission of Texas ofsegments ofthe motor carrier industry. Section 2of said Act provides:

“No motor carrier, as defined in the preceding section, shall operate any motorpropelled vehicle for the purpose oftransportation or carriage of property for compensation or hire over any public highway in the State except in accordance with the provisions ofthis Act
.., .‘I It is thus seen that if the activities ofa carrier **cause** it to fall within the definitions of regulated carriers as set out in Article 911b, the Railroad Commission has jurisdiction **to regulate**  the transportation involved. There -1679-IMr. Horace Soule, page 2(C-355)

are’ two (2) general categories of regulated traffic in which it might be contended that the transportation ofdead bodies would be included. These categories are “Motor Carrier” as defined in Section l(g) ofthe Act and

“Specialized Motor Carrier” as defined in Section l(i) ofthe Act. I Section l(g) ofArticle 911bdefines amotor carrier in the following language:

“(g) The term ‘motor carrier’ means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees, appointed by any court whatsoever owning, controlling, managing, operating or causing to be operated any motor propelled vehicle used in transporting property for compensation or hire over any public highway in the State
....‘I (Emphasis added) Section l(i) of the Act defines aspecialized motor carrier in the following language:

“(i) ‘Specialized motor carrier’ means any person owning, controlling, managing, operating or causing to be operated, any motor propelled vehicle used in transporting over any public highway in this state over irregular routes on irregular schedules, for compensation and for the general public with specialized equipment, property requiring specialized equipment in the transportation and handling thereof
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“For the purpose ofthis Act, the term ‘property requiring specialized equipment’ is limited to (1) oil field equipment, (2) household goods and used office furniture and equipment, (3) pipe used in the construction ofwater lines and Pipelines, anh ‘(P’) commodities which by reason oflength, width, weight, height, size, or other physical characteristics require the use of special devices, facilities, or equipment for their loading, unloading, and transportation.” (Emphasis added) As has been previously stated, if the Railroad Commission of Texas has jurisdiction over the transportation over the public highways ofthe State -1680-Mr. Horace Soule, page 3(C-355)

of Texas ofdead bodies, it must be because said carrier doing said transportation falls within the definition of either “motor carrier” or “specialized motor carrier.” The fundamental question to be determined in this regard is whether or not dead human bodies, or corpses, as they are commonly called, are classified as “property” or “commodities” as those terms are used in the above quoted definitions. For the purpose of this opinion, it will be assumed that the other requisites ofthe definitions have been fulfilled. In other words, it is assumed for the purpose of this opinion that the transportation ofthe dead bodies is afor hire movement by acommon carrier over the public highways in Texas, and during said movement ahighway between two or more incorporated municipalities is traversed. Although there may be some difference~of opinion as to whether or not specialized equipment, as that term is used in the statute, is required for such movement, for the purposes ofthis opinion it is irrelevant. This opinion is related solely to the determination ofw:.ether or not dead human bodies are “property” or “commodities” as contemplated **by** Article 911b. The Act itself is, of **course,** silent on this point, and there is no expressed intention ofthe legislature as to whether dead human bodies should fall within the regulation contemplated by the Act. In addition, apparently, there is no Texas case law directly in point. Examination of **various** authorities reveals that Texas **courts** have previously **been** presented with somewhat related questions with regard to property rights in human remains. No Texas case has been found which states that dead human bodies are property. The courts have held that the heirs and survivors have an interest in the deceased, entitling them to bury the body or preserve the remains, such interest being termed by the courts as a “quasi property right.” Gray v. State, 114S.W. 635, (Tex. Crim. 1908); Barnett v. Surratt, 67S.W.2d 1041, **(Tex.** Civ. App. 1934, error ref.) In the Barnett case, supra, on page 1042 appears the following language:

“There is no property right in adead man’s body, in the usually recognized sense ofthe word, yet it may be considered as asort ofquasi property, in which certain persons have rights therein, and have duties to perform.” There have been found no cases from other jurisdictions directly bearing on the questions presented in this opinion. However, without alengthy recitation of citations, it may be said that other jurisdictions follow the general reasoning advanced in Gray and Barnett, supra. See Lawson v. State, 24S.E.Zd 326 (Ga. App. 1943); Lubin v. Sydenham Hospital, 42 -1681-Mr. Horace Soule, page 4 (C-355)

N.Y.2d 654 (N.Y. Sup. 1943); Litteral v. Litteral, 111S.W. 872 (MO. App. 1908). In the case ofIn re Wong Yung Ouy, 2F. 624 (Calif. C.C.A. 1880) the court was called upon to consider the constitutionality ofa California statute making it an offense to remove from the place of burial the remains ofany deceased person without apermit, for which permit a fee of $10.00 was required. It was contended that the statute violated Article 1,Section 2, § 3ofthe United States Constitution, which provides that Congress shall have the power to regulate commerce with foreign nations. The **court** held the **statute** to be constitutional, and in so doing, made the following statement:

“Besides, the remains of deceased persons are not ‘exports’ within the meaning ofthe term as used in the Constitution. The term refers only to those things which are property. There is no property **in** any **just** sense in the dead body of a human being;” Of course, the above stated authority is not directly in point to the problem presented herein, but it is at least persuasive for the proposition that dead human bodies are not property for the purpose of transportation regulation under Article 911b. If, as stated in In re Wong Yung Ouy, dead human bodies are not property for the purpose of classification as exports in the regulation offoreign commerce, it would seem to follow that they are not property in the sense of classification as set out by Article 911b. In 25 C.J.S. 1016-1017 is found the following language:

“The authorities are almost uniform in holding that there is no right of property, in the strict sense or in the ordinary use ofthe term, in the dead body of ahuman being, and after burial the body becomes part and parcel ofthe ground to which it is committed. The right, however, to bury a corpse, and to preserve the remains
... is alegal right which the **courts** recognize **and** protect as aquasi property right; and this, in the absence of **a statute,**  is the only right one may have in adead body.” Finally, it should be noted that the Interstate Commerce Commission has concluded that the Interstate Commerce Act was not intended to confer

-1682-. . Mr. Horace Soule, page 5(C-355)

jurisdiction upon the I.C.C. to regulate the operation of carriers transporting corpses in interstate or foreign commerce. Dennis Common Carrier Application (1954), 63 M.C.C. 66. In this decision is found the following language:

“Contrary to the conclusions in Steffen Common Carrier Application, 34M.C.C. 779, decided September 1, 1942, we conclude that a corpse is neither property nor personalty as affects the jurisdictional scope ofthe Interstate Commerce Act. The only characteristic of a corpse which resembles the cumulation of legal rights that constitute propert;- is :!I? zi:h: sf burial I
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“To qualify the remains ofadeceased person as ‘property’ the transportation ofwhich by motor carrier requires authority from this Commission would in our opinion require specific language in the Interstate Commerce Act. The iegislative history of the Act contains no indication of any intent to include such remains within the jurisdiction conferred.” Although it is readily apparent that none ofthe authorities cited above is directly in point on this question, and although it is realized that adecision made by the Interstate Commerce Ccmmission ofthe United States is not binding on the Railroad Commission of Texas, it is the opinion ofthis office that these authorities do present the preferred view that adead human body is not “property” as that term is used in Article 911b. We therefore conclude that the word “property”, as that term is used in Article 911b, does not include dead human bodies, or corpses as they are commonly called. There have been found no authorities bearing directly upon the question of whether or not dead human bodies are to be considered as “commodities.” Webster’s Third New International Dictionary defines “commodity” as used or valued, especially when regarded as an articl.e -f commerce; as a product ofagriculture, mining or sometimes manufacture as distinguished from services, A Federal Court has defined a “commodity” a.san article oftrade or commerce, amovraole a,rtlii.e cf trade. sornr;.nin~ \\-hichis bought and so,id. United States vs. Shi,sko, 262 F. 1001 (Wash. D.C. 1919). In the Texas case of Pound vs. Lawrence, Jr., 233 S.W. 359 (Tex. Civ. App. 1921, error ref.) the court made thenfollowing statement: -:683-Mr. Horace Soule, page 6 (C-355)

“The word ‘commodity’ is abroader term than merchandise, and in referring to commerce it may mean almost any article ofmoveable or personal property.” In Nasman vs. Bank of New York, 49 N.Y.S.Zd 181(N.Y. Sup. 1944) the court pointed out that the word “commodity” has been held to include every moveable thing that is bought and sold, except possibly animals. It is the opinion of this office that the word “commodity”, as it is commonly used, would not include dead human bodies or corpses. SUMMARY 1. The Railroad Commission of Texas, Motor Transportation Division, does not have the jurisdiction to regulate the transportation of dead human bodies. 2. Dead human bodies are not to be considered as “property” or “commodities” within the language of the Motor Carrier Statute, Article 911b,Vernon’s Civil Statutes. Very truly yours, WAGGONER CAR R Attorney General 

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Sam L. Kelley Assistant SLK:sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Bob ?‘lowers Malcolm Quick Grady Chandler APPROVEDFOR THEATTORNEYGENERAL By: Stanton Stone -1684-