Case Information
*1 The Attorney General of Texas :jeptember 25, 1985
JIM MATT’OX
Attorney General Honorable Ray Far&bee @dIdOn No. JM-356
Supreme Cowl Building Chairman P. 0. BOX 12549 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 at 5699, which 4590-6, V.T.C.S.. would 4924 Alberta Ave.. SUite 150 El Paso. TX. 799052793 lmplledly 4590-4, V.T.C.S. Senate Bill No. 32 deals with removal of hvitman organs and tissue. Article 4590-4 deals with
removal of cornea1 tissue. 1001 Texas. Suite 700 human organs and tissue may be removed for research or Generally. ‘wston. TX. 77002.3111 transplant only with the consent of the decedent's family or the prior 3i2235BB9 consent of the ilrcedent. See V.T.C.S. art. 4590-4. In 1977 the 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 tissue without c13nsent under the following conditions: (1) the 9061747~5235 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 (3) remyJa1 will not interfere with Investigation or 5121992.4547 autopsy nor alter the post-mortem V.T.C.S. art. 200 Main Plaza, Suite 4W San Antonio, TX. 792052797 Senate Bill No. 32 allows a medical examiner to authorize 512l225dlQl various human organs, including eyes, under similar
circumstances. Uthough 4590-4 and Senate Bill No. 32 are similar in structure and content, the procedures set out in Senate An Equal OpportUqitYl Affirmative Action Employer Bill No. 32 are more restrictive than those in article
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 [certain specified family members] can be identified and contacted." *2 - Paglr 2 (~~-356) 4590-4 has no compar le requirement. 4590-4 is more restrictive than Senat ‘: Bill No. 32 r in that Senate Bill No. 32 contains no requirement that removal of tissue not alter post-mortem 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$ec:t. if possible. Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962). @IO, a general law does not ordinarily a specific law by impl&cal::lon. Rather, the special law Is construed See Flowers v. Pecos River as an exception to tb general law. Railroad Co., 156 S.W&d :!60. 263-64 (TX 1941). These rules of construction support the’ conclusion that a statute governing of cornea1 tissue and a :Later statute governing removal of human tissue and organs generally should both be given effect.
Another well establit,hed rule of construction, however, is that an enactment intended to embrace all law on a certain subject repeals all former lawsion Ithat subject. McInnis v. State, 603 S.W.2d It hs been suggested that this rule supports 179 (Tex. 1980).
conclusion that Senate,$i!.l. No. 32 impliedly repealed 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 in meetipg the demand for cornea1 tissue in Texas and stated that Senate Bil4 NC’. 32 would “expand” current statutes allow “removal of other organs and tissues under well-controlled circumstances.” We tl#nl: the comments the bill analysis are evidence leg&sl%ture intended Senate Bill No. 32 to be cumulative of article
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 +$9(1-,4 to change the procedure for obtaining tissue. consent to remove cornea1 S.B. No. 1219, Acts 1985, 69th Leg. That bill was passed % t’1e Senate on April 18. Senate Bill No. 32 was passed in the Senatp 0:~ the same day. Transcript, Senate Session, April 18, 1985. Seoaqg Ml1 No. 1219 was referred to in a Senate discussion of Senate B,ul No. 32 on that day. Thus, we think it is clear that the Senate yes wuare of the existence of each bill when it passed the other and tkat it intended the subject matter of article 4590-4 to be contained$n ,% statute separate from Senate Bill No. 32. *3 - 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 it, were awa'ce of the existence both bills. The considered did not intend for Senate Bill No. 32 to embrace entire subject of removal of human organs and tissue without consent. Senate Bill No. 32 did not impliedly
Thus, even under McInnis,
SUMMARY Senate Bill ho. 32, Acts 1985, 69th Leg.,:which 4590-6. V.T.C.Sd, did not impliedly ropeal article 4590-4, V.T.C.S: Ve 4 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