Mr. Horace Soule 

Railroad Commission of Texas 

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 

of dead human bodies. 

You recently requested an opinion of this 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 

of segments of the motor carrier industry. Section 2 of said Act provides: 

“No motor carrier, as defined in the 

preceding section, shall operate any motorpropelled vehicle for the purpose of transportation or carriage of property for compensation or hire over any public highway 

in the State except in accordance with the 

provisions of this Act . . , .‘I 

It is thus seen that if the activities of a 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 of dead bodies would be included. These 

categories are “Motor Carrier” as defined in Section l(g) of the Act and 

“Specialized Motor Carrier” as defined in Section l(i) of the Act. 

I 

Section l(g) of Article 911b defines a motor 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 a specialized 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 . . . . 

II 

. . . . 

“For the purpose of this 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 of water lines and Pipelines, anh ‘(P’) commodities which by reason of length, 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 of the State 

-1680- 
Mr. Horace Soule, page 3 (C-355) 

of Texas of dead 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 of the definitions 

have been fulfilled. In other words, it is assumed for the purpose of this 

opinion that the transportation of the dead bodies is a for hire movement 

by a common carrier over the public highways in Texas, and during said 

movement a highway 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 of this opinion it is 

irrelevant. This opinion is related solely to the determination of w:.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 of the 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, 114 S.W. 635, (Tex. Crim. 1908); Barnett 

v. Surratt, 67 S.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 a dead man’s 

body, in the usually recognized sense of the word, 

yet it may be considered as a sort of quasi 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 a lengthy 

recitation of citations, it may be said that other jurisdictions follow the 

general reasoning advanced in Gray and Barnett, supra. See Lawson v. 

State, 24 S.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, 111 S.W. 872 (MO. App. 

1908). 

In the case of In re Wong Yung Ouy, 2 F. 624 (Calif. C.C.A. 1880) the 

court was called upon to consider the constitutionality of a California 

statute making it an offense to remove from the place of burial the 

remains of any deceased person without a permit, for which permit a 

fee of $10.00 was required. It was contended that the statute violated 

Article 1, Section 2, § 3 of the 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 of the 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 of foreign 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 of the term, in the 

dead body of a human being, and after burial the 

body becomes part and parcel of the ground to 

which it is committed. The right, however, to 

bury a corpse, and to preserve the remains . . . 

is a legal right which the courts recognize and 

protect as a quasi property right; and this, in 

the absence of a statute, is the only right one 

may have in a dead 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, 34 M.C.C. 779, 

decided September 1, 1942, we conclude that a 

corpse is neither property nor personalty as 

affects the jurisdictional scope of the 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 . . . 

“To qualify the remains of a deceased person 

as ‘property’ the transportation of which 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 of the authorities cited above is 

directly in point on this question, and although it is realized that a decision 

made by the Interstate Commerce Ccmmission of the United States is not 

binding on the Railroad Commission of Texas, it is the opinion of this office 

that these authorities do present the preferred view that a dead 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 of agriculture, mining or sometimes manufacture as distinguished 

from services, A Federal Court has defined a “commodity” a.s an article 

of trade or commerce, a movraole a,rtlii.e cf trade. sornr;.nin~ \\-hich is 

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 then following statement: 

-:683- 
Mr. Horace Soule, page 6 (C-355) 

“The word ‘commodity’ is a broader term 

than merchandise, and in referring to commerce 

it may mean almost any article of moveable 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 

By&@+ 

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-