Untitled Texas Attorney General Opinion

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