Untitled Texas Attorney General Opinion

The Attorney General of Texas
January 4, 1978
JOHN L. HILL
Attorney General

Honorable John Wilson, Chairman Opinion No. H-1109
Committee on Health and Welfare
House of Representatives Re: Whether consent of
Austin, Texas next-of-kin is required
for the taking of cornea1
tissue from a decedent
Dear Chairman Wilson: under H.B. 307.

You have requested our opinion concerning the following
question:

k&y a medic&examiner or justice of
the peace permit the removal of cornea1
t'issue by an eye bank official from a
decedent who dies under circumstances
requiring an inquest without the prior
consent of the decedent's next-of-kin?

You have referred us to article 4590-4, V.T.C.S.,
enacted as House Bill 307,of the 65th Legislature, wh.ich
provides in part:

Section 1. On a request from an autho-
rized official of a nonprofit corporation
chartered under the laws of Texas, to
obtain, store, and distribute donor eyes
to be used by those licensed to practice
medicine for cornea1 transplants, for
research, or for other medical purposes
and whose medical activities are directed
by one licensed to practice medicine in
Texas, for cornea1 tissue, the justice
of the peace or the medical examiner
may permit the taking of cornea1 tissue
if:

(1) the decedent from whom the tissue
is to be taken died under circumstances
requiring an inquest by the justice of
the peace or the medical examiner;

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Honorable John Wilson - Page 2 (U-1109)

(2) no objection by a person listed
in Section 2 of this Act is known by
the justice of the peace or the medical
examiner; and

(3) the removal of cornea1 tissue
will not interfere with the subsequent
course of an investigation or autopsy,
or alter the postmortem facial appear-
ance.

. . . .

Sec. 3. The justice of the peace, the
medical examiner, and the eye bank official
are not liable for damages in a civil action
brought by a person listed in Section 2 of
this Act who has not objected prior to the
removal of the corneal:tissue on any theory
of civil recovery based on a contention that
the consent of plaintiff was required prior
to the removal of cornea1 tissue as autho-
rized by this Act.

Acts 1977, 65th Leg., ch. 11, at 26-27. Section 2 of the Bill
provides for objections by certain relatives.

In light of the positive authorization-in section 1 and
the protection from liability in section 3 it is abundantly
clear that, so long as no objection has been made, consent of
next-of-kin is not necessary for the removal of cornea1 tissue
from a decedent who died under circumstances requiring an
inquest. See generally Love v. Aetna Casualty & Surety Co.,
99 S.W.2d 646 (Tex. Civ. App. -- Beaumont 1936), aff'd, 121
S.W.Zd 986 (Tex. Comm'n App. 1938, opinion adopted).

SUMMARY

A medical examiner or justice of the
peace may permit the removal of cornea1
tissue by an eye bank official for a
decedent who dies under circumstances
requiring an inquest without the prior
consent of the decedent's next-of-kin.

p. 4544
. . “*

Eionorable John Wilson T Page 3 (ii-1109)
.

Very truly yours,

APPROVED:

DAVID M. KENDALL, First Assistant

jst

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