The Attorney General of Texas
August 5, 1980
MARK WHITE
Attorney General
Glenn V. Russell, PhD Opinion No. NW-219
Executive Secretary of the Board
Anatomical Board of the State of Texas Re: Whether publicly supported
University of Texas Medical Branch medical and dental schools are
Galveston, Texas 77550 required to post a bond in order
to receive cadavers from the
State Anatomical Board
Dear Dr. Russell:
You have requested our opinion regarding the applicability of article
4588, V.T.C.S., to state and federal medical schools. That statute provides:
No school, college, physician, or surgeon shall be
allowed or permitted to receive any such [dead
human] body or bodies until bond shall have been
given to the State by such physician or surgeon, or by
or in behalf of such school or college, to be approved
by the clerk of the county court in and for the county
in which such physician or surgeon may reside, or in
which such school or college may be situated, and to
be filed in the office of said clerk; which bond shall
be in the penal sum of one thousand dollars, con-
ditioned that all such bodies which the said physician
or surgeon, or said college, shall receive thereafter
shall be used, and that all experiments on the lower
animals shall be conducted only for the promotion of
medical science.
You first ask whether a state-supported medical school must post the
requisite bond in order to receive cadavers.
It is generally acknowledged that, in the absence of a constitutional
provision to the contrary, a state may impose a licensing requirement upon a
political subdivision or agency of the state. 53 C.J.S., Licenses S6, at 472.
Article 4588 &es not by its terms except state-supported institutions from
its coverage. In Attorney General Opinion H-464 (19741, this office held that
the University of Texas could properly hold a mixed beverage permit issued
by the Texas Alcoholic Beverage Commission. The opinion stated that:
P. 698
Glenn V. Russell - Page Two (MW-219)
It is not uncommon for a state agency or its employees to be
required to be licensed by another agency. For example, drivers
of state vehicles are not exempt from the requirements of
obtaining a driver’s license... State owned nursing homes are
specifically required to be licensed.
In our opinion, the bond requirement of article 4588 is similar to the licensing
provisions discussed in Attorney General Opinion H-464. Just as the possession of a
mixed beverage permit, with its attendant cost, serves to bring the University of Texas
within the regulatory ambit of the Alcoholic Beverage Commission for limited
purposes, so the pceting of the bond specified in the statute assists the regulatory
agency, the Anatomical Board, in determining that cadavers received by a state
medical school will be used “only for the promotion of medical science.” We conclude,
therefore, that article 4588 is fully applicable to state-supported medical schools.
With regard to a federally-operated facility, however, the result is different. In
Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956), the Supreme Court, in holding that a
state may not subject a federal contractor to state licensing requirements, quoted
from its earlier opinion in Johnson v. Maryland, 254 U.S. 51, 57 (1920):
. . . [Tl he immunity of the instruments of the United States
. . . in the performance of their duties extends to a require-
ment that they desist from performance until they satisfy a
state officer . . . that they are competent for a necessary part
of them and pay a fee for permission to go on.
352 U.S. at 190.
In Commonwealth of Kentucky Ex Rel. Hancock v. Ruckelshaus, 497 F. 2d 1172
(6th Cir., 19741, aff’d, 426 U.S. 167 (1976), the court held that a federal agency located
in Kentucky was not required to obtain a permit from the state before operating an
installation which generated air contaminants. In the absence of a clear Congressional
intent to stiject federal agencies to state regulation, the court said, the Supremacy
Clause forbids application of the permit requirement. Since article 4588, V.T.C.S.,
may not constitutionally Abeapplied to a federally-operated medical school we conclude
that it is not applicable to such facilities. Accordingly, article 4588, V.T.C.S., is not
applicable to any federally-operated medical school.
SUMMARY
Article 4588, V.T.C.S., which requires every school, college,
physician or surgeon to post a bond before receiving cadavers
from the Anatomical Board, is applicable to state-supported
medical schools but not to federally-operated medical schools.
MARK WHITE
Attorney General of Texas
P. 699
Glenn V. Russell - Page Three (MW-219)
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Ann Kraatz
P. 700