Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
:jeptember 25, 1985
JIM MATT’OX
Attorney General
Supreme Cowl Building
Honorable Ray Far&bee @dIdOn No. JM-356
P. 0. BOX 12549 Chairman
Austin. TX. 79711. 2549 State Affairs Committee Re: Whether Senate Bill No. 32,
51214752501 Texas State Senate Acts 1985. 69th Legislature, re-
Telex 910/974-1397
P. 0. Box 12068, Capitol Station pealed article 4590-4. V.T.C.S..
Telecopier 512#75.0255
Austin, Texas 78711 which relates to the removal of
cornea1 tissue from a decedent
714 Ja~kscm. Suite 700
Dallas, TX. 75202-4506
Dear Senator Farabee:
214l742-9944
You ask whether Senate Bill No. 32, Acts 1985, 69th Leg., ch. 789
4924 Alberta Ave.. SUite 150 at 5699, which is to be codified as article 4590-6, V.T.C.S.. would
El Paso. TX. 799052793 lmplledly repeal article 4590-4, V.T.C.S. Senate Bill No. 32 deals
9151533-3484 with removal of hvitmanorgans and tissue. Article 4590-4 deals with
removal of cornea1 tissue.
1001 Texas. Suite 700
‘wston. TX. 77002.3111 Generally. human organs and tissue may be removed for research or
3i2235BB9 transplant only with the consent of the decedent's family or the prior
consent of the ilrcedent. See V.T.C.S. art. 4590-4. In 1977 the
legislature enacl,e:d a statutehat allows justices of the peace and
505 Broadway, Suite 312
medical examlnerrl to permit the removal of a dead person's cornea1
Lubbock. TX. 79401.3479
9061747~5235
tissue without c13nsent under the following conditions: (1) the
decedent died ur&r circumstances requiring an Inquest by the justice
of the peace or the medical examiner; (2) the justice of the peace or
4309 N. Tenth, Suite B
medical examiner knows of no objection by specified family members;
McAllsn. TX. 79501.1685
and (3) the remyJa1 will not interfere with the Investigation or
5121992.4547
autopsy nor alter the post-mortem facial appearance. V.T.C.S. art.
4590-4.
200 Main Plaza, Suite 4W
San Antonio, TX. 792052797
Senate Bill No. 32 allows a medical examiner to authorize the
512l225dlQl
removal of various human organs, including eyes, under similar
circumstances. Uthough article 4590-4 and Senate Bill No. 32 are
An Equal OpportUqitYl similar in structure and content, the procedures set out in Senate
Affirmative Action Employer Bill No. 32 are more restrictive than those in article 4590-4 in
several ways. Sl!nate Bill No. 32 allows only medical examiners, not
justices of the Peace. to permit removal of organs. Also, under
Senate Bill No. 32, the medical examiner must obtain consent to r-e
non-visceral organs, including eyes, within the first four hours after
death and after that he may remove organs without consent only upon
"determining that no reasonable likelihood exists that [certain
specified family members] can be identified and contacted." Article
Honorable Ray Farabee - Paglr 2 (~~-356)
4590-4 has no compar le requirement. Article 4590-4 is more
restrictive than Senat r ‘: Bill No. 32 in that Senate Bill No. 32
contains no requirement that removal of tissue not alter post-mortem
facial appearance. Thus; article 4590-4. unlike Senate Bill No. 32.
does not permit removal of ,the entire eye from the socket.
Statutes may be repeallrd expressly or by implication. Repeals by
implication are not fsvo.:ed and two statutes on the same subject
should both be given ef$ec:t. if possible. Gordon v. Lake, 356 S.W.2d
138, 139 (Tex. 1962). @IO, a general law does not ordinarily repeal
a specific law by impl&cal::lon. Rather, the special law Is construed
as an exception to tb general law. See Flowers v. Pecos River
Railroad Co., 156 S.W&d :!60. 263-64 (TX 1941). These rules of
construction support the’ conclusion that a statute governing removal
of cornea1 tissue and a :Later statute governing removal of human
tissue and organs generally should both be given effect.
Another well establit,hed rule of construction, however, is that
an enactment intended to embrace all the law on a certain subject
repeals all former lawsion Ithat subject. McInnis v. State, 603 S.W.2d
179 (Tex. 1980). It hs been suggested that this rule supports the
conclusion that Senate,$i!.l. No. 32 impliedly repealed article 4590-4
because Senate Bill No. :I;! was intended to embrace all law on the
subject of removal of humzrr: tissue and organs without the consent of
the decedent or his falpily. The legislative history of Senate Bill
No. 32 shows, however,,s th,%t the premise of that argument -- that
Senate Bill No. 32 was,.nt,ended to embrace all the law on the subject
-- is incorrect. :i
:,S
The bill analysis to Senate Bill No. 32 pointed to the success of
article 4590-4 in meetipg the demand for cornea1 tissue in Texas and
stated that Senate Bil4 NC’. 32 would “expand” current statutes and
allow “removal of other organs and tissues under well-controlled
circumstances.” We tl#nl: the comments in the bill analysis are
evidence that the leg&sl%ture intended Senate Bill No. 32 to be
cumulative of article 4590-4.
Even more convinc@g is that a bill was introduced in the same
legislative session in yhilh Senate Bill No. 32 was enacted that would
have amended article +$9(1-,4 to change the procedure for obtaining
consent to remove cornea1 tissue. S.B. No. 1219, Acts 1985, 69th Leg.
That bill was passed % t’1e Senate on April 18. Senate Bill No. 32
was passed in the Senatp 0:~ the same day. Transcript, Senate Session,
April 18, 1985. Seoaqg Ml1 No. 1219 was referred to in a Senate
discussion of Senate B,ul No. 32 on that day. Thus, we think it is
clear that the Senate yes wuare of the existence of each bill when it
passed the other and tkat it intended the subject matter of article
4590-4 to be contained$n ,% statute separate from Senate Bill No. 32.
p. 1630
Honorable Ray Farabee - Page 3 (JM-356)
Although Senate Bill No. 1219 was never considered by the entire
Rouse, at least the members of the committee on Public Health, which
considered it, were awa'ce of the existence of both bills. The
legislature did not intend for Senate Bill No. 32 to embrace the
entire subject of removal of human organs and tissue without consent.
Thus, even under McInnis, Senate Bill No. 32 did not impliedly repeal
article 4590-4.
SUMMARY
Senate Bill ho. 32, Acts 1985, 69th Leg.,:which
is to be codified as article 4590-6. V.T.C.Sd, did
not impliedly ropeal article 4590-4, V.T.C.S:
4
Ve
JIM MATTDX
Attorney General. of Texas
TOM GREEN
First Assistant Attorney Gt!neral
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorne:r General
RICK GILPIN
Chairman, Opinion Cormnittec!
Prepared by Sarah Woelk
Assistant Attorney Genera:1
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1631